Exhibit 10.82
EMPLOYMENT
AGREEMENT
This EMPLOYMENT AGREEMENT
(the “ Agreement ”) is entered into effective as
of December 2, 2005 by and between Mark W. Salyer (“
Employee ”) and BioDelivery Sciences International,
Inc. (the “ Company ”).
WHEREAS , the Company and Employee are willing to
commence an employment relationship, on the terms, conditions and
covenants set forth in this Agreement.
NOW, THEREFORE
, in consideration of
Employee’s commencement of employment with the Company, the
mutual agreements and covenants contained herein and other good and
valuable consideration, receipt of which Employee and the Company
hereby acknowledge, Employee and the Company agree, as
follows:
1. Position . Employee agrees
to employment with the Company in the position of Executive Vice
President of Sales and Marketing of the Company. Employee further
agrees to perform the job duties and to carry out the
responsibilities of that position, as reasonably determined by the
Chief Executive Officer of the Company from time to time or the
Board of Directors of the Company (the “ Board of
Directors ”) consistent with the customary duties of such
position and the Bylaws of the Company. Employee shall report to
the Chief Executive Officer of the Company. Employee’s first
date of employment shall be January 9, 2006 (the “
Start Date ”). Employee acknowledges and agrees that
his position with the Company shall deem him to be an
“executive officer” of the Company for purposes of
Section 16 of the Securities Exchange Act of 1934, as amended,
and rules and regulations promulgated thereunder (the “
Exchange Act ”), and accordingly, Employee agrees to
timely make all filings required to be made by him with the
Securities and Exchange Commission under the Exchange
Act.
2. Employee’s Effort .
Employee shall perform his duties in the capacity as an employee
and in such capacity shall spend all of his business time and best
efforts, skill and attention to his position and to the business
and interests of the Company. Employee shall be primarily
responsible for coordinating and overseeing the Company’s
sales and marketing efforts relating to its pharmaceutical products
and formulations.
3. Base Salary; Bonus;
Benefits .
(a) Base Salary . The Company
shall pay Employee compensation for services rendered in the amount
of Two Hundred and Twenty Thousand Dollars ($220,000) per annum
(the “ Base Salary ”), payable on a bi-weekly
basis or otherwise in accordance with the Company’s standard
policies. Employee’s Base Salary may be subject to adjustment
as determined by the Board of Directors or a designated committee
thereof in its sole and absolute discretion; provided,
however, that the Base Salary will be reviewed on an annual
basis and at no time during the Term shall the Base Salary be
decreased from the amount then in effect.
(b) Optional Bonus . Employee
shall also be elligible to receive a cash bonus (based upon the
achievement of personal and corporate objectives to be determined
each year by the Chief Executive Officer of the Company) for each
Company fiscal year of up to fifty percent (50%) of the Base
Salary, which bonus shall be granted in the sole and absolute
discretion of the Board of Directors or a designated committee
thereof.
(c) Other Compensation and
Benefits . In addition, Employee shall receive such additional
compensation or other benefits as are provided to Company employees
generally and similarly-situated Company employees specifically
(including, without limitation: (i) three (3) weeks paid
vacation, (ii) five (5) sick days, (iii) health
insurance, dental insurance, life insurance and long and short term
disability insurance and (iv) 401(k) Plan (effective 60 days
after the Start Date) with company match, in each case as
administered in accordance with prevailing Company policy, as the
same may be determined from time to time in the sole discretion of
the Board of Directors or a designated committee thereof.
Furthermore, Employee: (i) shall be provided with 100,000
stock options that will be vest in 1/3 increments over 3 years
(beginning on the first anniversary of the Start Date), which grant
shall be memorialized in a separate option agreement and
administered in accordance with the Company’s Amended and
Restated 2001 Incentive Plan, (ii) shall be reimbursed up to
$30,000 for brokerage fees relating to the sale of, and the
physical relocation of Employee’s furniture from, his town
home in Livingston, New Jersey to Cary, North Carolina and
(iii) shall be reimbursed from time-to-time for reasonable
business expenses properly documented as per the Company’s
policy.
4. Term; Termination . Unless
earlier terminated under this Section 4, this Agreement and
the status and obligations of Employee thereunder as an employee of
the Company (except as provided for below) shall be effective for a
period ending on December 31, 2006 (the “ Initial Term
”) and, after the expiration of the Initial Term, this
Agreement shall automatically renew for successive one
(1) year terms (each a “ Renewal Term ”
and, collectively with all Renewal Terms and the Initial Term, the
“ Term ”) unless, and subject to the proviso
contained in Section 4(b) below, following the Initial Term,
either party gives thirty (30) days’ advance written
notice of its intention not to renew this Agreement at the
conclusion of the next Renewal Term. Termination of this Agreement
shall not, in any event, affect any rights that Employee may have
been specifically granted to Employee by the Board of Directors or
a designated committee thereof pursuant to any of the
Company’s retirement plans, supplementary retirement plans,
profit sharing and savings plans, healthcare, 401(k) any other
employee benefit plans sponsored by the Company, it being
understood that no such rights are granted hereunder. In addition,
notwithstanding the expiry or termination of this Agreement
pursuant to this Section 4 or otherwise, Employee’s
rights and obligations under Sections 5 through 14 inclusive of
this Agreement and those contained within the Confidentiality and
Intellectual Property Agreement attached hereto as Exhibit A
, to be executed simultaneously with this Agreement (the “
Confidentiality Agreement ”), shall survive the such
termination or expiration of this Agreement in accordance with the
terms of such Sections.
(a) Death . This Agreement
shall automatically terminate upon the death of Employee and all of
his rights hereunder, including the rights to receive compensation
and benefits, except as otherwise required by law, shall
terminate.
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(b) Termination with Notice by
Either Party . The Company or Employee may terminate this
Agreement for any reason or no reason upon thirty (30) days
prior written notice to the other. In case of termination by the
Company only under this paragraph: (i) if such termination
occurs at any time prior to the first (1st) anniversary of the
Start Date, the Company shall pay Employee a one-time cash
severance payment equal to one-half (1/2) of the Base Salary
and (ii) if such termination occurs at any time on or
following the first (1st) anniversary of the Start Date, the
Company shall pay Employee a one-time cash severance payment equal
to a a full year’s Base Salary. The Company shall have no
further obligations to Employee following termination and may
condition payment of such severence amount upon the Company’s
receipt of a general release by Employee in the form reasonably
acceptable to the Company and Employee.
(c) Termination for Cause .
In the event of a termination by the Company for Cause (as defined
below), the Company will pay the Employee the Base Salary earned
and expenses reimbursable under this Agreement incurred through the
date of the Employee’s termination, and shall have no further
responsibility for termination or other payments to Employee. As
used herein, the term “ Cause ” shall mean any
one or more of the following as determined in the reasonable
discretion of the Company:
(i) a continuing material breach or
material default (including, without limitation, any material
deriliction of duty) by Employee of the terms of this agreement, or
any related agreement (including the Confidentiality Agreement),
except for any such breach or default which is caused by the
physical disability of Employee (as determined by a neutral
physician);
(ii) gross negligence, willful
misfeasance or breach of fiduciary duty by Employee;
(iii) the commission by Employee of
an act of fraud, embezzlement or any felony or crime of dishonesty
in connection with Employee’s duties; or
(iv) conviction of Employee of a
felony or any other crime that would materially and adversely
affect: (i) the business reputation of the Company or
(ii) the performance of the Employee’s duties
hereunder.
(d) Termination for Good
Reason . Employee may terminate his employment under this
Agreement at any time for Good Reason (as defined below). In case
of termination hereof by the Employee for Good Reason, the Company
shall pay Employee a one-time cash severance payment equal to his
annual Base Salary (it being agreed that the Company may condition
payment of such severence amount upon its receipt of a general
release by Employee in the form reasonably acceptable to the
Company and Employee) and Employee shall maintain any rights that
Employee may have been specifically granted to Employee pursuant to
any of the Company’s retirement plans, supplementary
retirement plans, profit sharing and savings plans, healthcare,
401(k) any other employee benefit plans sponsored by the Company.
Following the payment of severance, the Company shall have no
further obligations to Employee following termination.
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For purposes of this Agreement, the
term “ Good Reason ” means, in each case without
the consent of Employee:
(i) any material diminution in the
office, title, duties, powers, authority or responsibilities, which
diminution is not corrected within thirty (30) days after the
Company receives written notice thereof from Employee;
(ii) Employee’s place of work
is moved more than seventy-five (75) miles from
Employee’s home address in Cary, North Carolina;
(iii) (A) the Company fails to
pay Employee his Base Salary in accordance with generally
applicable Company policy or (B) Employee’s Base Salary
is decreased without consent of Employee, which failure or decrease
is not corrected within thirty (30) days after the Company
receives written notice thereof from Employee; or
(iv) Employee is discriminatorily
denied material benefits under the Company’s prevailing
policies and plans, which denial is not corrected within thirty
(30) days after the Company receives written notice thereof
from Employee.
5. Confidentiality . Employee
shall keep, deal and treat confidential, proprietary, non-public
and confidential information of the Company in strict accordance
with the terms and provisions of the Confidentiality Agreement,
which agreement: (i) shall be deemed incorported herein and an
integral part hereon and (ii) shall be executed by Employee
and delivered to the Company simultaneously with the execution and
delivery of this Agreement. The terms of this paragraph shall
survive termination of this Agreement.
6. Assignment and Disclosure of
Inventions . Employee shall assign and transfer to the Company
his entire right, title and interest in and to all Inventions (as
defined in the Confidentiality Agreement) and disclose to the
Company all Inventions in accordance with the terms set forth in
the Confidentiality Agreement. The terms of this paragraph shall
survive termination of this Agreement.
7. Prior Inventions . It is
understood that all Inventions, if any, patented or unpatented,
which Employee made prior to the date that the Company and Employee
entered into this Agreement, are excluded from the scope of this
Agreement. To preclude any possible uncertainty, Employee has set
forth on Exhibit A to the Confidentiality Agreement a
complete list of all such prior inventions, including numbers of
all patents and patent applications, and a brief description of all
unpatented inventions which are not the property of another party
(including, without limitation a current or previous contracting
party). If no items are included on Exhibit A to the
Confidentiality Agreement, Employee has no such prior inventions.
Employee will notify the Company in writing before Employee makes
any disclosure or performs any work on behalf of the Company which
appears to threaten or conflict with proprietary rights Employee
claims in any such invention or idea. In the event of
Employee’s failure to give such notice, Employee will make no
claim against the Company with respect to any such inventions or
ideas. The terms of this paragraph shall survive termination of
this Agreement.
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8. Competition . Employee
will not do, or intend to do, any of the following, either directly
or indirectly, during Employee’s employment with the Company
and during the period of two (2) years after Employee’s
cessation of employment with the Company, anywhere in the world. In
the event that a court of competent jurisdiction determines that
Employee improperly competes with the Company in violation of this
Section 11, the period during which he engages in such
competition shall not be counted in determining the duration of the
two (2) year non-compete restriction:
(a) For purposes of this Agreement,
“ Competitive Activity ” shall mean the
development, manufacture, sale, license, packaging or marketing of
any drug-delivery technologies or products or formulations
incorporating such technologies which relate in any manner to:
(i) drugs for the treatment of pain, insomnia, anxiety,
nausea, vomiting and for the prevention of addiction that are
administered through the oral cavity (including the tongue) and/or
the mucosa of the inner lip or cheek, (ii) the conversion of
intravenus drugs to drugs that can be administerd orally via
drug-delivery technologies and (ii) any technology, product or
formulation which Employee was actively and directly participating
in on behalf of the Company or any subsidiary of the Company or
joint venture in which the Company is participating at the time of
termination (it being understood, for the avoidance of doubt, that
the words “actively and directly” shall not include
Employee’s actions in a merely supervisory
capacity).
(b) Employee agrees that, during the
time frames described herein, he shall not, directly or indirectly,
own, manage, operate, control, consult for, be an officer or
director of, work for, or be employed in any capacity by any
company, eleemosynary institution or any other business, entity,
agency or organization (or a discrete business unit within any such
entity) whose primary business purpose is to engage in a
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