ADVANCIS PHARMACEUTICAL
CORPORATION
EXECUTIVE EMPLOYMENT
AGREEMENT
THIS EXECUTIVE
EMPLOYMENT AGREEMENT (this “ Agreement ”)
is made this 1st day of November 2005 by and between Robert C.
Low, a resident of Vienna, Virginia (the “
Employee ”), and Advancis Pharmaceutical
Corporation, a corporation organized and existing under the laws of
the State of Delaware (the “ Company
”).
The Company is
engaged in the business of developing, improving and promoting
antibiotic therapies and the delivery and dosage of antibacterials,
as well as extending the market and patent life of important
anti-infectives and oncology (as may be modified or expanded by the
Company during the term of this Agreement, collectively and
individually, the “ Business
”).
The Company
desires to promote the Employee and the Employee desires to be
promoted and continue to be employed by the Company in an executive
position, upon the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in
consideration of the mutual covenants and obligations contained
herein, and intending to be legally bound, the parties, subject to
the terms and conditions set forth herein, agree as
follows:
1.
Employment and Term . The Company hereby continues to
employ the Employee and the Employee hereby accepts continued
employment with the Company, as Vice President, Finance and Acting
Chief Financial Officer (the “ Position
”) with the promotion to commence on November 1, 2005
(the “ Commencement Date ”). Employee
shall continue to be employed by the Company on an at will basis.
The Employee shall be entitled to terminate this Agreement at any
time upon ninety (90) days prior written notice to the Company. The
Company shall be entitled to terminate this Agreement at any time
subject to the provisions of Section 8 hereof. (The period of
time during which the Employee is employed by the Company subject
to the terms of this Agreement is referred to herein as the “
Term ”). For purposes of interpretation of this
Agreement, the date of promotion shall be the commencement date
rather that the date of initial employment with the
Company.
2.
Duties . During the Term, the Employee shall serve
the Company faithfully and to the best of his ability and shall
devote his full time, attention, skill and efforts to the
performance of the duties required by or appropriate for the
Position. Subject to the oversight of the Chairman, President &
CEO, the Employee shall (i) have responsibility for the
financial management systems of the organization, and
(ii) such duties and responsibilities as may be assigned to
him from time to time by the Chairman, President & CEO. The
Employee shall perform such duties and responsibilities at the
Company’s facility located in Germantown, Maryland or at such
other location as may be mutually agreed upon by the Company and
the Employee in accordance with the business needs of the Company.
The Employee, as Vice
President of
Finance and Acting Chief Financial Officer shall report to the
Chairman, President & CEO.
3.
Other Business Activities . Except with the prior
written consent of the Company in its sole discretion, the Employee
shall not engage, directly or indirectly, during the Term, in any
other business activities or pursuits whatsoever, except activities
in connection with charitable or civic activities, personal
investments and serving as an executor, trustee or in other similar
fiduciary capacity; provided that any such activities do not
interfere with the performance of his responsibilities and
obligations pursuant to this Agreement.
4.
Compensation . The Company shall pay the Employee,
and the Employee hereby agrees to accept, as compensation for all
services to be rendered to the Company and for the Employee’s
intellectual property covenants and assignments and covenant not to
compete, as provided in Sections 6 and 7 hereof, the
compensation set forth in this Section 4.
4.1
Salary . The Company shall pay the Employee a base salary at
the annual rate of Two Hundred Twenty Thousand Dollars
($220,000.00) (as the same may hereafter be adjusted, the “
Salary ”) during the Term of this Agreement.
The Salary shall be inclusive of all applicable income, social
security and other taxes and charges that are required by law to be
withheld by the Company (collectively, “ Taxes
”) and shall be paid and withheld in accordance with the
Company’s normal payroll practice for its executive employees
from time to time in effect. The Salary shall be subject to
increase at the option and in the sole discretion of the Company
based upon the demonstrated performance of the Employee.
4.2
Bonus . Upon the execution of this Agreement, the Employee
shall be eligible to be awarded an annual cash bonus, which bonus
shall be determined by the Chairman, President & CEO and the
Board of Directors and shall be in a target amount of Twenty-Five
percent (25%) of Salary paid during such applicable period, less
Taxes, provided that the Employee shall have achieved all of his
performance objectives established for such period. Such bonus
shall be determined and paid within ninety (90) days after the
conclusion of such year.
4.3
Fringe Benefits . The Employee shall be entitled to
participate in the following programs and receive the following
benefits (collectively, the “ Benefits ”)
in accordance with the following provisions.
(a) The
Employee shall be entitled to participate in any retirement, health
or dental programs generally made available to executive employees
of the Company.
(b) The
Employee shall be entitled to participate in all vacation, life and
disability insurance and other fringe benefit programs of the
Company to the extent and on the same terms and conditions as are
accorded to other executive employees of the Company.
4.4
Reimbursement of Expenses . During the Term, the Employee
shall be reimbursed for items of travel, food and lodging and
miscellaneous expenses reasonably incurred by him on behalf of the
Company, provided that such expenses are incurred, documented and
submitted to the Company, all in accordance with the reimbursement
policies of the Company as in effect from time to time.
5.
Confidentiality . The Employee recognizes and
acknowledges that the Proprietary Information (as hereinafter
defined) is a valuable, special and unique asset of the Company. As
a result, both during the Term and thereafter, the Employee shall
not, without the prior written consent of the Company, for any
reason either directly or indirectly divulge to any third-party or
use for his own benefit, or for any purpose other than the
exclusive benefit of the Company, any confidential, proprietary,
business and technical information or trade secrets of the Company
or of any subsidiary or affiliate of the Company (the “
Proprietary Information ”) revealed, obtained
or developed in the course of his employment with the Company.
Proprietary Information shall include any confidential or
proprietary information or trade secrets relating to any patents or
other intellectual property assigned by the Employee to the
Company. Proprietary Information also shall include, but shall not
be limited to the intangible personal property described in Section
6(b) hereof and, in addition, technical information, including
research design, results, techniques and processes; apparatus and
equipment design; computer software; technical management
information, including project proposals, research plans, status
reports, performance objectives and criteria, and analyses of areas
for business development; and business information, including
project, financial, accounting and personnel information, business
strategies, plans and forecasts, customer lists, customer
information and sales and marketing plans, efforts, information and
data. In addition, “Proprietary Information” shall
include all information and materials received by the Company or
Employee from a third party subject to an obligation of
confidentiality and/or non-disclosure. Nothing contained herein
shall restrict the Employee’s ability to make such
disclosures during the course of his employment as may be necessary
or appropriate to the effective and efficient discharge of the
duties required by or appropriate for the Position or as such
disclosures may be required by law. Furthermore, nothing contained
herein shall restrict the Employee from divulging or using for his
own benefit or for any other purpose any Proprietary Information
that is readily available to the general public so long as such
information did not become available to the general public as a
direct or indirect result of the Employee’s breach of this
Section 5. Failure by the Company to mark any of the
Proprietary Information as confidential or proprietary shall not
affect its status as Proprietary Information under the terms of
this Agreement.
6.1
Removal and Distribution . All right, title and interest in
and to Proprietary Information shall be and remain the sole and
exclusive property of the Company. During the Term, the Employee
shall not remove from the Company’s offices or premises any
documents, records, notebooks, files, correspondence, reports,
memoranda or similar materials of or containing Proprietary
Information, or other materials or property of any kind belonging
to the Company, unless necessary or appropriate in accordance with
the duties and responsibilities
required by or
appropriate for the Position and, in the event that such materials
or property are removed, all of the foregoing shall be returned to
their proper files or places of safekeeping as promptly as possible
after the removal shall serve its specific purpose. The Employee
shall not make, retain, remove and/or distribute any copies of any
of the foregoing for any reason whatsoever, except as may be
necessary in the discharge of the assigned duties and shall not
divulge to any third person the nature of and/or contents of any of
the foregoing or of any other oral or written information to which
he may have access or with which for any reason he may become
familiar, except as disclosure shall be necessary in the
performance of the duties; and upon the termination of his
employment with the Company, the Employee shall return to the
Company all originals and copies of the foregoing then in his
possession or under his control, whether prepared by the Employee
or by others.
(a) The
Employee acknowledges that all right, title and interest in and to
any and all writings, documents, inventions, discoveries, ideas,
developments, information, computer programs or instructions
(whether in source code, object code, or any other form),
algorithms, formulae, plans, memoranda, tests, research, designs,
innovations, systems, analyses, specifications, models, data,
diagrams, flow charts, and/or techniques (whether patentable or
non-patentable or whether reduced to written or electronic form or
otherwise) that the Employee creates, makes, conceives, discovers
or develops, either solely or jointly with any other person, at any
time during the Term, whether during working hours or at the
Company’s facility or at any other time or location, and
whether upon the request or suggestion of the Company or otherwise,
(collectively, “ Intellectual Work Product
”) shall be the sole and exclusive property of the Company.
The Employee shall promptly disclose to the Company all
Intellectual Work Product, and the Employee shall have no claim for
additional compensation for the Intellectual Work Product, except
for any excluded Intellectual Work Product that is wholly unrelated
to the pharmaceutical industry, in the broadest sense, provided
that such Intellectual Work Product is not conceived, discovered or
developed, either solely or jointly with any other person during
working hours or at the Company’s facility or using any other
Company resource.
(b) The
Employee acknowledges that all the Intellectual Work Product that
is copyrightable shall be considered a work made for hire under
United States Copyright Law. To the extent that any copyrightable
Intellectual Work Product may not be considered a work made for
hire under the applicable provisions of the United States Copyright
Law, or to the extent that, notwithstanding the foregoing
provisions, the Employee may retain an interest in any Intellectual
Work Product, the Employee hereby irrevocably assigns and transfers
to the Company any and all right, title, or interest that the
Employee may have in the Intellectual Work Product under copyright,
patent, trade secret and trademark law, in perpetuity or for the
longest period otherwise permitted by law, without the necessity of
further consideration. The Company shall be entitled to obtain and
hold in its own name all copyrights, patents, trade secrets, and
trademarks with respect thereto.
(c) The
Employee shall reveal promptly all information relating to any such
Intellectual Property to the Board of Directors of the Company,
and, at the Company’s expense, shall cooperate with the
Company and execute such documents as may be necessary or
appropriate (i) in the event that the Company desires to seek
copyright, patent or trademark protection, or other analogous
protection, thereafter relating to the Intellectual Work Product,
and when such protection is obtained, renew and restore the same,
or (ii) to defend any opposition proceedings in respect of
obtaining and maintaining such copyright, patent or trademark
protection, or other analogous protection.
(d) In
the event the Company is unable after reasonable effort to secure
the Employee’s signature on any of the documents referenced
in Section 6.2 (c) hereof, whether because of the
Employee’s physical or mental incapacity or for any other
reason whatsoever, the Employee hereby irrevocably designates and
appoints the Company and its duly authorized officers and agents as
the Employee’s agent and attorney-in-fact, to act for and on
the behalf and stead to execute and file any such documents and to
do all other lawfully permitted acts to further the prosecution and
issuance of any such copyright, patent or trademark protection, or
other analogous protection, with the same legal force and effect as
if executed by the Employee.
(e) The
Employee represents that the innovations, designs, systems,
analyses, ideas, and all copyrights, patents, trademarks and trade
names, or similar intangible personal property (collectively, the
“ Pre-existing Property ”) identified on
Schedule I hereof comprise all of the innovations,
designs, systems, analyses, ideas and all copyrights, patents,
trademarks and trade names, or similar intangible personal property
that the Employee has made or conceived of prior to the date
hereof, and same are excluded from the operation of the other
provisions of this Section 6.2. In the event that the Employee
learns of any Pre-existing Property that he inadvertently failed to
include in Schedule I, and the circumstances surrounding the
failure of such inclusion are reasonably satisfactory to the
Company, the Employee and the Company shall jointly amend
Schedule I to include such property.
7.
Covenant not to Compete .
7.1
Restrictions . Provided that the Company is in compliance
with Section 8.5 hereof, if applicable, the Employee shall
not, during the Term and for a period of two (2) years
thereafter (the “ Restricted Period ”),
except as an employee of the Company and in order to carry out the
Employee’s duties hereunder, do any of the following directly
or indirectly without the prior written consent of the Company in
its sole discretion:
(a) engage
or participate, directly or indirectly, in any business activity
competitive with the Business or the business of the Company or any
of the Company’s subsidiaries or affiliates as conducted
during the Term;
(b) become
interested (as owner, stockholder, lender, partner, co-venturer,
director, officer, employee, agent, consultant or otherwise) in any
person, firm, corporation, association or other entity engaged in
any business that is competitive with the
Business or of
the business of the Company or any subsidiary or affiliate of the
Company as conducted during the Term, or become interested in (as
owner, stockholder, lender, partner, co-venturer, director,
officer, employee, agent, consultant or otherwise) any portion of
the business of any person, firm, corporation, association or other
entity where such portion of such business is competitive with the
Business of the Company or the business of any subsidiary or
affiliate of the Company as conducted during the Te
|
