Vanda
Pharmaceuticals Inc.
Amended
and Restated Employment Agreement
This Employment
Agreement (this “Agreement”) was entered into as of
February 10, 2005, by and between Mihael H. Polymeropoulos (the
“Employee”) and Vanda Pharmaceuticals Inc. , a
Delaware corporation (the “Company”), and was amended
and restated as of November 4, 2008. This Agreement is hereby
further amended and restated as of December 16,
2008.
1. Duties
and Scope of Employment.
(a)
Position . For the term of his employment under this
Agreement (“Employment”), the Company agrees to employ
the Employee in the position of Chief Executive Officer. The
Employee shall be subject to the supervision of, and shall have
such authority as is delegated to him by, the board of directors of
the Company (the “Board”), consistent with his position
as Chief Executive Officer. The Employee hereby accepts such
employment and agrees to undertake the duties and responsibilities
normally inherent in such position and such other duties and
responsibilities as the Board shall from time to time reasonably
assign to him consistent with his position as Chief Executive
Officer.
(b)
Obligations to the Company . During the term of his
Employment, the Employee shall devote his full business efforts and
time to the Company. During the term of his Employment, without the
prior written approval of the Board, the Employee shall not render
services in any capacity to any other person or entity and shall
not act as a sole proprietor or partner of any other person or
entity or as a shareholder owning more than five percent of the
stock of any other corporation. The Employee shall comply with the
Company’s policies and rules, as they may be in effect from
time to time during the term of his Employment.
(c)
No Conflicting Obligations . The Employee represents and
warrants to the Company that he is under no obligations or
commitments, whether contractual or otherwise, that are
inconsistent with his obligations under this Agreement. The
Employee represents and warrants that he will not use or disclose,
in connection with his employment by the Company, any trade secrets
or other proprietary information or intellectual property in which
the Employee or any other person has any right, title or interest
and that his employment by the Company as contemplated by this
Agreement will not infringe or violate the rights of any other
person or entity. The Employee represents and warrants to the
Company that he has returned all property and confidential
information belonging to any prior employers.
2. Cash
and Incentive Compensation.
(a)
Salary . The Company shall pay the Employee as compensation
for his services a base salary at a gross annual rate of not less
than $362,250. Such salary shall be payable in accordance with the
Company’s standard payroll procedures. (The annual
compensation specified in this Subsection (a), together with any
increases in such compensation
that the
Company may grant from time to time, is referred to in this
Agreement as “Base Compensation.”)
(b)
Incentive Bonuses . The Employee shall be eligible to be
considered for an annual incentive bonus with a target amount equal
to 40% of his Base Compensation (the “Annual Target
Bonus”). Such bonus (if any) shall be awarded based on
objective or subjective criteria established in advance by the
Board. The determinations of the Board with respect to such bonus
shall be final and binding. Any incentive bonus for a fiscal year
shall in no event be paid later than 2 1 / 2
months after the close of such
fiscal year.
(c)
Stock Options . Subject to the approval of the Board, the
Company shall grant the Employee an incentive stock option covering
918,400 shares of the Company’s Common Stock. Such option
shall be granted as soon as reasonably practicable after the date
of this Agreement. The per-share exercise price of such option
shall be equal to the fair market value of one share of the
Company’s Common Stock on the date of grant. The term of such
option shall be 10 years, subject to earlier expiration in the
event of the termination of the Employee’s Employment. The
Employee shall vest in 25% of the option shares after the first
12 months of continuous service and shall vest in the
remaining option shares in equal monthly installments over the next
three years of continuous service. The option shall accelerate and
become vested with respect to 100% of the option shares if, after a
Change in Control, (i) the Employee’s Employment is
terminated by the Company for reasons other than Cause or
(ii) the Employee’s Employment is terminated by the
Employee for Good Reason. 1 The grant of such option shall be subject to the
other terms and conditions set forth in the Company’s stock
plan governing the option, and the Company’s standard form of
stock option agreement. In addition, Section 6(d) shall apply to
such option.
3.
Vacation and Employee Benefits. During the term of his
Employment, the Employee shall be eligible for 25 paid vacation
days each year in accordance with the Company’s standard
policy for similarly situated employees, as it may be amended from
time to time. During the term of his Employment, the Employee shall
be eligible to participate in any employee benefit plans maintained
by the Company for similarly situated employees, subject in each
case to the generally applicable terms and conditions of the plan
in question and to the determinations of any person or committee
administering such plan.
4.
Business Expenses. During the term of his Employment, the
Employee shall be authorized to incur necessary and reasonable
travel, entertainment and other business expenses in connection
with his duties hereunder. The Company shall reimburse the Employee
for such expenses upon presentation of an itemized account and
appropriate supporting documentation, all in accordance with the
Company’s generally applicable policies.
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Certain
capitalized terms are defined in Section 9.
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(a)
Basic Rule . The Company agrees to continue the
Employee’s Employment, and the Employee agrees to remain in
Employment with the Company, from the date of this Agreement until
the date when the Employee’s Employment terminates pursuant
to Subsection (b) or (c) below. The Employee’s
Employment with the Company shall be “at will,” meaning
that either the Employee or the Company may terminate the
Employee’s Employment at any time, with or without cause. Any
contrary representations which may have been made to the Employee
shall be superseded by this Agreement. This Agreement shall
constitute the full and complete agreement between the Employee and
the Company on the “at will” nature of the
Employee’s Employment, which may only be changed in an
express written agreement signed by the Employee and a duly
authorized officer of the Company.
(b)
Termination . The Company may terminate the Employee’s
Employment at any time and for any reason (or no reason), and with
or without cause, by giving the Employee notice in writing. The
Employee may terminate his Employment by giving the Company
14 days’ advance notice in writing. The Employee’s
Employment shall terminate automatically in the event of his
death.
(c)
Permanent Disability . The Company may terminate the
Employee’s Employment due to Permanent Disability by giving
the Employee 30 days’ advance notice in writing. In the
event that the Employee satisfactorily resumes the performance of
substantially all of his duties hereunder before the termination of
his Employment under this Subsection (c) becomes effective,
the notice of termination shall automatically be deemed to have
been revoked.
(d)
Rights Upon Termination . Except as expressly provided in
Section 6, upon the termination of the Employee’s
Employment pursuant to this Section 5, the Employee shall only
be entitled to the compensation, benefits and reimbursements
described in Sections 2, 3 and 4 for the period preceding the
effective date of the termination. The payments under this
Agreement shall fully discharge all responsibilities of the Company
to the Employee.
(e)
Termination of Agreement . This Agreement shall terminate
when all obligations of the parties hereunder have been satisfied.
The termination of this Agreement shall not limit or otherwise
affect any of the Employe
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