Exhibit 10.32
EMPLOYMENT AGREEMENT
This Agreement by and between Keryx Biopharmaceuticals, Inc. ("Keryx"), a
Delaware corporation having an address at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, M.D., an individual residing at
__________________________________________ ("▇▇▇▇▇▇▇▇▇").
WITNESSETH:
WHEREAS, the Corporation desires to employ ▇▇▇▇▇▇▇▇▇ as Senior Vice
President, Clinical Development of Keryx and ▇▇▇▇▇▇▇▇▇ desires to be employed by
the Keryx as Senior Vice President, Clinical Development of Keryx, all pursuant
to the terms and conditions hereinafter set forth;
NOW THEREFORE, in consideration of the foregoing and the mutual promises
and covenants herein contained, it is agreed as follows:
1. EMPLOYMENT DUTIES
(a) Keryx hereby engages and employs ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇▇▇▇▇ accepts
engagement and employment, as Senior Vice President, Clinical Development of
Keryx, to direct, supervise and have responsibilities for the clinical
development activities of Keryx and for any other appropriate areas and tasks
which the Board of Directors and/or the Chief Executive Officer may assign to
him. ▇▇▇▇▇▇▇▇▇ will devote his entire business time, energy, abilities and
experience to the performance of his duties, effectively and in good faith.
Further, during the Term, ▇▇▇▇▇▇▇▇▇ shall not render services as an employee,
consultant or otherwise, whether or not during regular business hours, for pay
to any other party other than the Corporation without the written permission of
the Chief Executive Officer. ▇▇▇▇▇▇▇▇▇ acknowledges and agrees that the
performance by ▇▇▇▇▇▇▇▇▇ of his duties hereunder may require significant
domestic and international travel by ▇▇▇▇▇▇▇▇▇.
(b) ▇▇▇▇▇▇▇▇▇ agrees that he shall have relocated to the Boston area within
four (4) months from the date he executes this Agreement. Keryx agrees to
reimburse ▇▇▇▇▇▇▇▇▇ for relocation expenses in accordance with, and up to the
limits set forth in Paragraph 3(e), below.
2. TERM
▇▇▇▇▇▇▇▇▇'▇ employment hereunder shall commence on November 9, 2001,
and shall continue unless sooner terminated as hereinafter provided in Paragraph
8 (the "Term").
3. COMPENSATION
(a) As compensation for the performance of his duties on behalf of Keryx,
▇▇▇▇▇▇▇▇▇ shall be compensated as follows:
(i) Base Salary and Annual Increases. ▇▇▇▇▇▇▇▇▇ shall receive an
annual gross base salary of two hundred and forty thousand dollars
($240,000) payable in accordance with the Corporation's payroll policies
and subject to standard payroll deductions and withholdings. The
Corporation's Board of Directors shall review ▇▇▇▇▇▇▇▇▇'▇ performance and
the Corporation's financial and operating results on at least an annual
basis, and may adjust ▇▇▇▇▇▇▇▇▇'▇ base salary as it, in its reasonable
discretion, deems appropriate based on such review. In addition, in the
event that the Corporation closes at least two outlicensing deals worth at
least $10 million subsequent to the start of ▇▇▇▇▇▇▇▇▇' employment, his
base salary will be increased by $10,000.
(ii) Bonus. ▇▇▇▇▇▇▇▇▇ shall be eligible to receive one or more bonuses
during any calendar year in the discretion of the Chief Executive Officer,
acting in consultation with the Board of Directors. In addition,
(iii) Equity. The Corporation, subject to the approval of the Board of
Directors, will ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ options (the "Options") to purchase 81,000
shares of the common stock of the Corporation (the "Initial Grant") at an
exercise price equal to the closing price of the Corporation's Common Stock
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on Nasdaq on the day prior to the start of ▇▇▇▇▇▇▇▇▇'▇ employment. (the
"Exercise Price"), which options shall be exercisable for a period of 10
years from the date of issuance. ▇▇▇▇▇▇▇▇▇'▇ Options will be granted under
the Corporation's 2000 Stock Option Plan (the "Plan") and will be subject
to the terms and conditions thereof, including any Stock Option Agreement
entered into by ▇▇▇▇▇▇▇▇▇ and the Corporation thereunder. In accordance
with the Plan, should any change be made to the Common Stock by reason of
any stock split, stock dividend, recapitalization, combination of shares,
exchange of shares or other change affecting the outstanding Common Stock
as a class without the Corporation's receipt of consideration, appropriate
adjustments shall be made to (A) the total number and/or class of
securities subject to such options and (B) the Exercise Price in order to
reflect such change and thereby preclude a dilution or enlargement under
such options. The Initial Grant shall vest as follows: 27,000 after six
months of employment; 27,000 after 18 months of employment; and 27,000
after 30 months of employment; provided that at the time of vesting,
▇▇▇▇▇▇▇▇▇ is employed by the Corporation or by a parent, subsidiary or
affiliate of the Corporation. Additionally, ▇▇▇▇▇▇▇▇▇ may be entitled to
further annual grants of options in accordance with the Corporation's
executive compensation plans taking into account his role as part of senior
management.
(b) Expenses. Keryx shall reimburse ▇▇▇▇▇▇▇▇▇ for all normal, usual and
necessary expenses incurred by ▇▇▇▇▇▇▇▇▇ in furtherance of the business and
affairs of Keryx, including travel and entertainment, against receipt by Keryx
of appropriate vouchers or other proof of ▇▇▇▇▇▇▇▇▇'▇ expenditures and otherwise
in accordance with such Expense Reimbursement Policy as may from time to time be
adopted by the Board of Directors of Keryx.
(c) Annual Leave and Holidays. ▇▇▇▇▇▇▇▇▇ shall be entitled during the term
of this Agreement to twenty (20) business days of annual leave per year as well
as the following holidays: New Year's Day, President's Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day and the day following, and
Christmas Day.
(d) Employee Benefits. During the Term of his employment, ▇▇▇▇▇▇▇▇▇ shall
be entitled to participate in all employee and fringe benefit plans and programs
generally offered to other members of the Corporation's management who are
similarly situated, including, without limitation, any pension, profit sharing,
incentive, retirement, insurance, health and disability benefits and plans, to
the extent that ▇▇▇▇▇▇▇▇▇ is eligible under and subject to the provisions of
such plans. The Corporation reserves its right to modify or terminate any of its
employee and fringe benefit plans and programs at any time.
(e) Relocation Expenses. Upon the presentation of acceptable documentation,
Keryx will reimburse ▇▇▇▇▇▇▇▇▇ for certain reasonable expenses actually incurred
in connection with his relocation to the Boston area, as follows:
(i) Costs incurred in reasonable number of trips to the Boston
area to find a house, including airfare, hotel, rental car and food;
(ii) Out of pocket costs incurred in selling his current
residence, including agent, broker and/or legal fees, up to a maximum
of $15,000; and
(iii) Out of pocket costs incurred in moving from his present
location to the Boston area, including transportation for ▇▇▇▇▇▇▇▇▇
(and his family) and moving expenses for personal belongings.
(iv) One point on a mortgage on his new house in the Boston area,
up to a maximum of $4,000.
▇▇▇▇▇▇▇▇▇'▇ salary shall be increased temporarily to cover any taxes resulting
from the inclusion of any such relocation payments included in his salary.
(f) Bridge Loan. If necessary, the Corporation will ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ a
short-term bridge loan in the event that he has not sold his current house by
the time he is required to pay for his new house in the Boston area. The terms
of such of a loan, if necessary, shall include, but not be limited to, the
following:
(i) A maximum loan principal of $200,000;
(ii) A maturity date to occur on the earlier of the closing of the
sale of ▇▇▇▇▇▇▇▇▇' current house or six (6) months;
(iii) Market interest rate; and
(iv) Appropriate security.
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4. REPRESENTATIONS AND WARRANTIES BY ▇▇▇▇▇▇▇▇▇ AND KERYX
(a) ▇▇▇▇▇▇▇▇▇ hereby represents and warrants to Keryx as follows:
(i) Neither the execution and delivery of this Agreement nor the
performance by ▇▇▇▇▇▇▇▇▇ of his duties and other obligations hereunder
violate any statute, law, determination or award, or conflict with or
constitute a default under (whether immediately, upon the giving of notice
or lapse of time or both) any prior employment agreement, contract, or
other instrument to which ▇▇▇▇▇▇▇▇▇ is a party or by which he is bound.
(ii) ▇▇▇▇▇▇▇▇▇ has the full right, power and legal capacity to enter
and deliver this Agreement and to perform his duties and other obligations
hereunder. This Agreement constitutes the legal, valid and binding
obligation of ▇▇▇▇▇▇▇▇▇ enforceable against him in accordance with its
terms. No approvals or consents of any persons or entities are required for
▇▇▇▇▇▇▇▇▇ to execute and deliver this Agreement or perform his duties and
other obligations hereunder.
(b) Keryx hereby represents and warrants to ▇▇▇▇▇▇▇▇▇ as follows:
(i) Keryx is duly organized, validly existing and in good standing
under the laws of the State of Delaware, with all requisite corporate power
and authority to own its properties and conduct its business in the manner
presently conducted.
(ii) Keryx has the full power and authority to enter into this
Agreement and to incur and perform its obligations hereunder.
(iii) The execution, delivery and performance by Keryx of this
Agreement does not conflict with or result in a material breach or
violation of or constitute a material default under (whether immediately,
or upon the giving of notice or lapse of time or both) the certificate of
incorporation or by-laws of Keryx, or any agreement or instrument to which
Keryx is a party or by which Keryx or any of its properties may be bound or
affected.
5. CONFIDENTIAL INFORMATION
▇▇▇▇▇▇▇▇▇ agrees to sign and comply with the Corporation's Proprietary
Information and Inventions Agreement, annexed hereto as Attachment A.
6. NON-COMPETITION
(a) ▇▇▇▇▇▇▇▇▇ understands and recognizes that his services to Keryx are
special and unique and agrees that, during the Term, and for a period of 12
months from the date of termination of his employment hereunder, he shall not in
any manner, directly or indirectly, on behalf of himself or any person, firm,
partnership, joint venture, corporation or other business entity ("Person"),
enter into or engage in any business directly competitive with Keryx's business,
either as an individual for his own account, or as a partner, joint venturer,
treasurer, agent, consultant, salesperson, employee, officer, director or
shareholder of a Person operating or intending to operate within the area that
Keryx is, at the date of termination, conducting its business (the "Restricted
Businesses"); provided, however, that nothing herein will preclude ▇▇▇▇▇▇▇▇▇
from holding one percent (1%) or less of the stock of any publicly traded
Corporation.
(b) In the event that ▇▇▇▇▇▇▇▇▇ breaches any provisions of this Section 6
or there is a threatened breach, then, in addition to any other rights which
Keryx may have, Keryx shall be entitled, without the posting of a bond or other
security, to injunctive relief to enforce the restrictions contained herein. In
the event that an actual proceeding is brought in equity to enforce the
provisions of this Section 6, ▇▇▇▇▇▇▇▇▇ shall not argue as a defense that there
is an adequate remedy at law nor shall Keryx be prevented from seeking any other
remedies that may be available.
7. NON-SOLICITATION AND NON-INTERFERENCE
During the Term, and for 12 months thereafter, ▇▇▇▇▇▇▇▇▇ shall not,
directly or indirectly, without the prior written consent of Keryx:
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(a) solicit or induce any employee of Keryx or any subsidiary, parent,
affiliate or successor ("Affiliate") of Keryx to leave the employ of Keryx or
any Affiliate or hire for any purpose any employee of Keryx or any Affiliate or
any employee who has left the employment of Keryx or any Affiliate within six
months of the termination of said employee's employment with Keryx; or
(b) interfere with or disrupt or attempt to disrupt Keryx's or its
Affiliates' business relationship with any of their partners, service providers,
clients, customers and/or suppliers.
8. TERMINATION
(a) Either party may terminate ▇▇▇▇▇▇▇▇▇'▇ employment with the Corporation
without cause at any time upon ninety (90) days' notice. The Corporation shall
have the right, in its sole discretion, to require ▇▇▇▇▇▇▇▇▇ to continue working
for the Corporation during the notice period. If the Corporation terminates
▇▇▇▇▇▇▇▇▇ without cause pursuant to this section, and only if ▇▇▇▇▇▇▇▇▇ executes
a waiver and release of claims substantially in the form set forth in Attachment
B, attached hereto, the Board of Directors shall take the necessary steps so
that (i) any outstanding, but unvested, options granted to the Employee shall
vest upon the effective date of his termination; and (ii) the period during
which the Employee shall be permitted to exercise such options shall be extended
to two (2) years from the effective date of his termination as defined in the
Stock Option Plan governing the options in question.
(b) ▇▇▇▇▇▇▇▇▇'▇ employment shall be terminated by his death or
disability. (For purposes of this section, "disability" shall be deemed to have
occurred if ▇▇▇▇▇▇▇▇▇ is unable, due to any physical or mental disease or
condition, to perform his normal duties of employment for 120 consecutive days
or 180 days in any twelve-month period.) In such an event, he shall be entitled
to continue to receive his base salary for three (3) months following his last
day of actual employment by the Corporation. In addition, the Board of Directors
shall take the necessary steps so that (a) any outstanding, but unvested,
options granted to the Employee shall vest upon the effective date of his
termination; and (b) the period during which the Employee shall be permitted to
exercise such options shall be extended to two (2) years from the effective date
of his termination as defined in the Share Option Plan governing the options in
question. Should the Employee's employment be terminated as a result of his
death, the benefits granted herein, shall be granted instead to his lawful heir
or heirs. In either case (disability or death), accelerated vesting and extended
exercise of the options will only be granted if ▇▇▇▇▇▇▇▇▇ or, in the case of his
death, his legal successor, together with his lawful heir or heirs, execute a
waiver and release of claims substantially in the form set forth in Attachment B
hereto.
(c) Notwithstanding the foregoing, the Corporation may terminate ▇▇▇▇▇▇▇▇▇
immediately and without prior notice in the following circumstances: (a) a
material breach of ▇▇▇▇▇▇▇▇▇'▇ obligations and/or warranties pursuant to
Sections 1, 4(a), 5, 6 and/or 7; (b) a material breach by ▇▇▇▇▇▇▇▇▇ of any other
provision of this Agreement, which is not cured by ▇▇▇▇▇▇▇▇▇ within fifteen (15)
days after receiving notice thereof from the Corporation containing a
description of the breach or breaches alleged to have occurred; (c) the habitual
neglect or gross failure by ▇▇▇▇▇▇▇▇▇ to adequately perform the duties of his
position; (d) any act of moral turpitude or criminal action connected to his
employment with the Corporation or his place of employment; or (e) ▇▇▇▇▇▇▇▇▇'▇
refusal to comply with or his violation of lawful instructions of the Chief
Executive Officer or the Board of Directors.
(d) In the event that ▇▇▇▇▇▇▇▇▇'▇ employment has been terminated in
accordance with Section 8(c), above, ▇▇▇▇▇▇▇▇▇ shall not be entitled to receive
any of the severance benefits set forth in Section 8(a) or (b), above.
9. INDEMNIFICATION
The Corporation shall take whatever steps are necessary to establish a
policy of indemnifying its officers, including, but not limited to ▇▇▇▇▇▇▇▇▇,
for all actions taken in good faith in pursuit of their duties and obligations
to the Corporation. Such steps shall include, but shall not necessarily be
limited to, the obtaining of an appropriate level of Directors and Officers
Liability coverage.
10. NOTICES
Any notice or other communication under this Agreement shall be in writing
and shall be deemed to have been given when delivered personally against receipt
thereof; two (2) business days after being sent by Federal Express or similar
internationally recognized courier service; or seven (7)
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business days after being mailed registered or certified mail, postage prepaid,
return receipt requested, to either party at the address set forth above, or to
such other address as such party shall give by notice hereunder to the other
party.
11. SEVERABILITY OF PROVISIONS
If any provision of this Agreement shall be declared by a court of
competent jurisdiction to be invalid, illegal or incapable of being enforced in
whole or in part, the remaining conditions and provisions or portions thereof
shall nevertheless remain in full force and effect and enforceable to the extent
they are valid, legal and enforceable, and no provision shall be deemed
dependent upon any other covenant or provision unless so expressed herein.
12. ENTIRE AGREEMENT; MODIFICATION
This Agreement contains the entire agreement of the parties relating to the
subject matter hereof, and the parties hereto have made no agreements,
representations or warranties relating to the subject matter of this Agreement
that are not set forth herein. No modification of this Agreement shall be valid
unless made in writing and signed by the parties hereto.
13. BINDING EFFECT
The rights, benefits, duties and obligations under this Agreement shall
inure to, and be binding upon, Keryx, its successors and assigns, and upon
▇▇▇▇▇▇▇▇▇ and his legal representatives. This Agreement constitutes a personal
service agreement, and the performance of ▇▇▇▇▇▇▇▇▇'▇ obligations hereunder may
not be transferred or assigned by ▇▇▇▇▇▇▇▇▇.
14. NON-WAIVER
The failure of either party to insist upon the strict performance of any of
the terms, conditions and provisions of this Agreement shall not be construed as
a waiver or relinquishment of future compliance therewith, and said terms,
conditions and provisions shall remain in full force and effect. No waiver of
any term or condition of this Agreement on the part of either party shall be
effective for any purpose whatsoever unless such waiver is in writing and signed
by such party.
15. GOVERNING LAW
This Agreement shall be governed by, and construed and interpreted in
accordance with, the laws of the Commonwealth of Massachusetts without regard to
principles of conflicts of law. Additionally, the prevailing party in any
litigation shall be entitled to an additional award of its attorney fees, cost
and expenses.
16. REMEDIES FOR BREACH
▇▇▇▇▇▇▇▇▇ understands and agrees that any breach of Sections 1, 4(a) 5, 6
and/or 7 of this Agreement by him could cause irreparable damage to Keryx and to
the Affiliates, and that monetary damages alone would not be adequate and, in
the event of such breach, Keryx shall have, in addition to any and all remedies
of law, the right to an injunction, specific performance or other equitable
relief to prevent or redress the violation of Keryx's rights under such
Sections.
17. HEADINGS
The headings of paragraphs are inserted for convenience and shall not
affect any interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
EMPLOYEE:
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, MD
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, MD
KERYX BIOPHARMACEUTICALS, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇
Title: CFO & Treasurer
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ATTACHMENT A
Proprietary Information and Inventions Agreement
In consideration of my employment or continued employment by Keryx
Biopharmaceuticals, Inc. (together with any subsidiary of Keryx
Biopharmaceuticals, Inc., the "Company"), and the compensation now and hereafter
paid to me, I hereby agree as follows:
1. Recognition of Company's Rights; Nondisclosure. At all times during the
term of my employment and thereafter, I will hold in strictest confidence and
will not disclose, use, lecture upon or publish any of the Company's Proprietary
Information (defined below), except as such disclosure, use or publication may
be required in connection with my work for the Company, or unless an officer of
the Company expressly authorizes such in writing.
The term "Proprietary Information" shall mean trade secrets, confidential
knowledge, data or any other proprietary information of the Company. By way of
illustration but not limitation, "Proprietary Information" includes (a)
inventions, mask works, trade secrets, ideas, processes, formulas, source and
object codes, data, programs, other works of authorship, know-how, improvements,
discoveries, developments, designs and techniques (hereinafter collectively
referred to as "Inventions"); and (b) information regarding plans for research,
development, new products, regulatory matters, marketing and selling, business
plans, budgets and unpublished financial statements, licenses, prices and costs,
suppliers and customers; and information regarding the skills and compensation
of other employees of the Company.
2. Third Party Information. I understand, in addition, that the Company has
received, and in the future will receive, from third parties confidential or
proprietary information ("Third Party Information") subject to a duty on the
Company's part to maintain the confidentiality of such information and to use it
only for certain limited purposes. During the term of my employment and
thereafter, I will hold Third Party Information in the strictest confidence and
will not disclose to anyone (except in connection with my work for the Company),
unless expressly authorized by an officer of the Company in writing.
3. Assignment of Inventions
3.1 Assignment
(a) I hereby assign to the Company all my right, title and interest in and
to any and all Inventions and all patent rights, copyrights, mask work rights,
trademarks, trade secret rights, all other rights throughout the world in
connection therewith, and the goodwill associated with all of the foregoing
(collectively, "Proprietary Rights"), whether or not patentable or registrable
under patent, copyright, trademark or similar statutes, made or conceived or
reduced to practice or learned by me, either alone or jointly with others,
during the period of my employment with the Company. Inventions assigned to, or
as directed by, the Company under this Paragraph 3 are hereinafter referred to
as "Company Inventions". I agree, upon request, to execute, verify and deliver
assignments of the Proprietary Rights to the Company or its designee and I
hereby appoint the Company my attorney-in-fact with respect to the Proprietary
Rights for the purpose of effecting any or all of the Company's rights to the
Proprietary Rights.
3.1 Government. I also agree to assign to or as directed by the Company all
my right, title and interest in and to any and all Inventions, full title to
which is required to be assigned to the United States of America by a contract
between the Company and United States of America or any of its agencies.
3.2 Works for hire. I acknowledge that all original works of authorship
which are made by me (solely or jointly with others) within the scope of my
employment and which are protectable by copyright are "works made for hire", as
that term is defined in the United States Copyright Act (17 U.S.C. Section 101).
4. Enforcement of Proprietary Rights. From time to time, I will assist the
Company in every proper way to obtain and enforce United States and foreign
Proprietary Rights relating to Company Inventions in any and all countries. My
obligation to assist the Company with respect to Proprietary
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Rights relating to such Company Inventions in any and all countries shall
continue beyond the termination of my employment, but the Company shall
compensate me at a reasonable rate after my termination for the time actually
spent by me at the Company's request on such assistance.
I hereby waive and quitclaim to the Company any and all claims, of any
nature whatsoever, which I now or may hereafter have for infringement of any
Proprietary Rights assigned hereunder to the Company.
5. Obligation to Keep Company Informed. During the period of my employment,
I will promptly disclose all Inventions to the Company fully and in writing and
will hold such Inventions in trust for the sole right and benefit of the
Company. In addition, after termination of my employment, I will promptly
disclose all patent applications filed by me within a year after termination of
employment.
6. Prior Inventions. Inventions, if any, patented or unpatented, which I
made prior to the commencement of my employment with the Company are excluded
from the scope of this Agreement. To preclude any possible uncertainty, I have
set forth in Exhibit A attached hereto a complete list of all Inventions (i)
that I have, alone or jointly with others, conceived, developed or reduced to
practice or caused to be conceived, developed or reduced to practice prior to
the commencement of my employment with the Company, (ii) that I consider to be
my property or the property of third parties and (iii) that I wish to have
excluded from the scope of this Agreement. If disclosure of any such Invention
on Exhibit A would cause me to violate any prior confidentiality agreement, I
understand that I am not to list such Inventions in Exhibit A but am to inform
the Company that all such Inventions have not been listed for that reason.
7. No Improper Use of Materials. During my employment by the Company, I
will not improperly use or disclose any confidential information or trade
secrets, if any, of any former employer or any other person to whom I have an
obligation of confidentiality, and I will not bring onto the premises of the
Company any unpublished documents or any property belonging to any former
employer or any other person to whom I have an obligation of confidentiality
unless consented to in writing by that former employer or person.
8. No Conflicting Obligation. I represent that my performance of all
the terms of this Agreement and my performance of my duties as an employee of
the Company do not and will not breach any agreement to keep in confidence
information acquired by me in confidence or in trust prior to my employment by
the Company. I have not entered into, and I agree I will not enter into, any
agreement either written or oral in conflict herewith.
9. Return of Company Documents. When I leave the employ of the Company,
I will deliver to the Company any and all drawings, notes, memoranda,
specifications, devices, formulas, molecules, cells, storage media, including
software, documents and computer printouts, together with all copies thereof,
and any other material containing or disclosing any Company Inventions, Third
Party Information or Proprietary Information of the Company. I further agree
that any property situated on the Company's premises and owned by the Company,
including disks and other storage media, filing cabinets or other work areas, is
subject to inspection by Company personnel at any time with or without notice.
Prior to leaving, I will cooperate with the Company in completing and signing
the Company's termination statement for technical and management personnel.
10. Legal and Equitable Remedies. Because my services are personal and
unique and because I may have access to and may become acquainted with the
Proprietary Information of the Company, the Company shall have the right to
enforce this Agreement and any of its provisions by injunction, specific
performance or other equitable relief, without bond, without prejudice to any
other rights and remedies that the Company may have for a breach of this
Agreement, and I waive the claim or defense that the Company has an adequate
remedy at law. I shall not, in any action or proceeding to enforce any of the
provisions of this Agreement, assert the claim or defense that such an adequate
remedy at law exists.
11. Notices. Any notices required or permitted hereunder shall be given
to me at the address specified below or at such other address as I shall specify
in writing. Such notice shall be deemed given upon personal delivery to the
appropriate address or if sent by certified or registered mail, three days after
the date of mailing.
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12. General Provisions.
12.1 Governing Law. This Agreement is executed under seal and will be
governed by and construed according to the laws of the Commonwealth of
Massachusetts.
12.2 Entire Agreement. This Agreement is the final, complete and exclusive
agreement of the parties with respect to the subject matter hereof and
supersedes and merges all prior discussions between us. No modification or
amendment of this Agreement, nor any waiver of any rights under this Agreement,
will be effective unless in writing, signed by the party to be charged. Any
subsequent change or changes in my duties, salary or compensation will not
affect the validity or scope of this Agreement. As used in this Agreement, the
period of my employment includes any time during which I may be retained by the
Company as a consultant.
12.3 Severability. If one or more of the provisions in this Agreement are
deemed unenforceable by law, then the remaining provisions will continue in full
forced and effect.
12.4 Successors and Assigns. This Agreement will be binding upon my heirs,
executors, administrators and other legal representatives and will be for the
benefit of the Company, its successors, and its assigns. I may not assign any of
my rights, or delegate any of my obligations, under this Agreement.
12.5 Survival. The provisions of this Agreement shall survive the
termination of my employment and the assignment of this Agreement by the Company
to any successor in interest or other assignee.
12.6 Employment. I agree and understand that nothing in this Agreement
shall confer on me any right with respect to continuation of my employment with
the Company, or shall it interfere in any way with my right or the Company's
right to terminate my employment at any time, with or without cause.
12.7 Waiver. No waiver by the Company of any breach of this Agreement shall
be a waiver of any preceding or succeeding breach. No waiver by the Company of
any right under this Agreement shall be construed as a wavier of any other
right. The Company shall not be required to give notice to enforce strict
adherence to all terms of this Agreement.
12.8 Counterparts. This Agreement may be executed in counterparts, all of
which together shall for all purposes constitute one Agreement, binding on each
of the parties hereto notwithstanding that each such party shall not have signed
the same counterpart.
12.9 Jurisdiction and Venue; Waiver of Jury Trial. In case of any dispute
hereunder, the parties will submit to the exclusive jurisdiction and venue of
any court of competent jurisdiction sitting in Suffolk County, Massachusetts,
and will comply with all requirements necessary to give such court jurisdiction
over the parties and the controversy. EACH PARTY HEREBY WAIVES ANY RIGHT TO A
JURY TRIAL AND TO CLAIM OR RECOVER PUNITIVE DAMAGES.
12.10 Disclosure. I shall disclose the existence and terms of this
Agreement to any employer or other person that I may work for or be engaged by
after the termination of my employment or engagement at the Company. I agree
that the Company may, after notification to me, provide a copy of this Agreement
to any business or enterprise (i) which I may directly or indirectly own,
manage, operate, finance, join, control or participate in the ownership,
management, operation, financing, or control of, or (ii) with which I may be
connected with as an officer, director, employee, partner, principal, agent,
representative, consultant or otherwise, or in connection with which I may use
or permit my name to be used. I will provide the names and addresses of any of
such persons or entities as the Company may from time to time reasonably
request.
This Agreement shall be effective as of the first day of my employment with
the Company, namely -----------------------.
I UNDERSTAND THAT THIS AGREEMENT AFFECTS MY RIGHTS TO INVENTIONS I MAKE
DURING MY EMPLOYMENT, AND RESTRICTS MY RIGHTS TO DISCLOSE OR USE THE COMPANY'S
CONFIDENTIAL INFORMATION DURING OR SUBSEQUENT TO MY EMPLOYMENT.
8
I HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS.
Signature:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, MD
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, MD
Date: Nov. 27, 2001
-------------------------
ACCEPTED AND AGREED TO:
Keryx Biopharmaceuticals, Inc.
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------
Signature
Name: ▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------
Title: CFO & Treasurer
--------------------------
9
Proprietary Information and Inventions Agreement
EXHIBIT A
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10
ATTACHMENT B
Employee Agreement And Release
Except as otherwise set forth in this Employee Agreement and Release (the
"Agreement") between the undersigned and Keryx Biopharmaceuticals, Inc. (the
"Corporation"), I hereby release, acquit and forever discharge the Corporation,
its parents, affiliates and subsidiaries, and their officers, directors, agents,
servants, employees, attorneys, shareholders, successors, assigns and
affiliates, of and from any and all claims, liabilities, demands, causes of
action, costs, expenses, attorneys fees, damages, indemnities and obligations of
every kind and nature, in law, equity, or otherwise, known and unknown,
suspected and unsuspected, disclosed and undisclosed, arising out of or in any
way related to agreements, events, acts or conduct at any time prior to and
including the execution date of this Agreement, including but not limited to:
all such claims and demands directly or indirectly arising out of or in any way
connected with my employment with the Corporation or the termination of that
employment; claims or demands related to salary, bonuses, commissions, stock,
stock options, or any other ownership interests in the Corporation, vacation
pay, fringe benefits, expense reimbursements, severance pay, or any other form
of compensation; claims pursuant to any federal, state or local law, statute, or
cause of action including, but not limited to, Title VII of the Civil Rights Act
of 1964, 42 ▇.▇.▇.▇▇. 2000e et seq., the Age Discrimination in Employment Act,
29 ▇.▇.▇.▇▇. 621 et seq. ("ADEA"), the Americans With Disabilities Act of 1990,
42 ▇.▇.▇.▇▇. 12101 et seq., and the Massachusetts Fair Employment Practices Act,
M.G.L. c.151B,ss. 1 et seq., all as amended, and all claims arising out of the
Fair Credit Reporting Act, 15 ▇.▇.▇.▇▇. 1681 et seq., the Employee Retirement
Income Security Act of 1974 ("ERISA"), 29 ▇.▇.▇.▇▇. 1001 et seq., the
Massachusetts Civil Rights Act, M.G.L. c.12 ▇▇.▇▇. 11H and 11I, the
Massachusetts Equal Rights Act, M.G.L. c.93ss. 102 and M.G.L. c.214,ss.1C, the
Massachusetts Labor and Industries Act, M.G.L. c. 149,ss. 1 et seq., and the
Massachusetts Privacy Act, M.G.L. c.214,ss.1B, all as amended,; tort law;
contract law; wrongful discharge; discrimination; harassment; retaliation;
fraud; defamation; emotional distress; and breach of the implied covenants of
good faith and fair dealing.
I acknowledge that I am knowingly and voluntarily waiving and releasing any
rights I may have under ADEA. I also acknowledge that the consideration given
for the waiver and release in the preceding paragraph hereof is in addition to
anything of value to which I was already entitled. I further acknowledge that I
have been advised by this writing, as required by the ADEA, that; (a) my waiver
and release do not apply to any rights or claims that may arise after the
execution date of this Agreement; (b) I have been advised hereby that I have the
right to consult with an attorney prior to executing this Agreement; (c) I have
twenty-one (21) days to consider this Agreement (although I may choose to
voluntarily execute this Agreement earlier); (d) I have seven (7) days following
the execution of this Agreement by the parties to revoke the Agreement; and (e)
this Agreement shall not be effective until the date upon which the revocation
period had expired, which shall be the eighth day after this Agreement is
executed by me.
In giving this release, which includes claims that may be unknown to me at
present, I hereby expressly waive and relinquish all rights and benefits under
any law of any jurisdiction with respect to my release of any such presently
unknown claims I may have against the Corporation.
Dated: _______________________ ____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇