Exhibit 10.40
January 10, 2005
Antonius Martinus Gustave Bunt, MD, Ph.D.,
MBA
14 Terrill Drive
Califon, NJ 07830
Dear Ton:
This letter will confirm our offer
to you of employment with Oscient Pharmaceuticals Corporation (the
“Company”), under the terms and conditions that
follow:
Position and Duties. Effective
January 1, 2005 (the “Start Date”), you will be
employed by the Company, on a full-time basis as its Senior Vice
President, Clinical Development and Medical Affairs. You agree to
perform the duties of your position and such other duties as may
reasonably be assigned to you from time to time consistent with
your position. You also agree that, while employed by the Company,
you will devote substantially all of your-business time and your
reasonable best efforts, skill and knowledge exclusively to the
advancement of the business and interests of the Company and its
subsidiaries and to the discharge of your duties and
responsibilities for them. You warrant that you are free to enter
into and fully perform this Agreement and are not subject to any
employment, confidentiality, non-competition or other agreement
which conflicts with this Agreement.
1. Compensation and Benefits.
During your employment, as compensation for all services performed
by you for the Company and its subsidiaries, the Company will
provide you the following pay and benefits:
|
|
a.
|
Base
Salary. The Company will
pay you a base salary at the rate of Two Hundred and Seventy-Five
Thousand Dollars ($275,000) per year, payable in accordance with
the regular payroll practices of the Company and subject to
increase from time to time by the Compensation Committee of the
Board of Directors of the Company (the “Compensation
Committee”) in its discretion (such base salary as in effect
from time to time, the “Base Salary”). Your first full
year merit review will occur on or before March 31, 2006, and you
will receive merit reviews at least annually thereafter.
|
|
|
b.
|
Signing
Bonus. You will receive a
one time signing bonus in the amount of Fifty Thousand Dollars
($50,000), payable within 10 days of the Start Date. It is
understood and agreed that you may apply all or a portion of the
amount of the signing bonus to the relocation budget.
|
|
|
c.
|
Annual Bonus
Compensation. During
employment, you will be considered annually for a bonus of up to
forty percent (40%) of your Base Salary. Bonus awards will be
determined by the Compensation Committee, based on your performance
and that of the Company against goals established annually by the
Compensation Committee after consultation with you. Subject to
Compensation Committee approval, up to half of any annual bonus may
be paid in the form of an equity award on terms to be determined by
the Compensation Committee.
|
|
|
d.
|
Option
Grants. In connection
with the commencement of your employment, you will be granted an
option to purchase 250,000 shares of the Company’s common
stock, which will vest during your continued employment with the
Company in equal annual installments over a four (4) year period,
on the anniversary of the Start Date. The exercise price per share
for this option grant will be the fair market value per share of
the Company’s common stock as of the Start Date. The terms of
these options are governed by the Company’s 2001 Incentive
Plan and the stock option agreements between the Company and you.
Annually, based on company and team/individual performance and
subject to approval by the Compensation Committee, you also will be
eligible to receive additional option grants priced at the Fair
Market Value on the date of grant, which, if awarded, will vest
quarterly over a three-year period.
|
|
|
e.
|
Participation in Employee Benefit
Plans. You will be
entitled to participate in all employee benefit plans from time to
time in effect on the same basis as other senior executive
employees of the Company, except to the extent such plans are
duplicative of benefits otherwise provided to you under this
Agreement. Your participation will be subject to the terms of the
applicable plan documents and applicable Company
policies.
|
|
|
f.
|
Vacations
and other Benefits. You
will be subject to the Company’s standard vacation policy,
which initially provides for three (3) weeks of vacation per year.
Vacation may be taken at such times and intervals as you shall
determine, subject to the business needs of the Company.
Additionally, the Company will, at its expense, provide you with a
supplemental life insurance policy for the purpose of increasing
your term life coverage level to three times your Base
Salary.
|
|
|
g.
|
Relocation
Expense Reimbursement. The Company shall reimburse you, upon proper
accounting, for reasonable and customary expenses up to One Hundred
Thousand Dollars ($100,000) incurred by you in the course of
relocating to the Boston, Massachusetts area. The Company will
provide relocation services through its preferred provider,
Relocation Outsource Inc. (ROI) whose services will be available to
you for all phases of your relocation. A list of covered expenses
was included in the relocation agreement attached to your offer
letter. Relocation expenses that are outside of these categories
must be approved in advance by the Company, which approval shall
not be unreasonably withheld or delayed. Your rights to seek
reimbursement pursuant to this Paragraph 2(g) shall expire on the
date twelve (12) months following the Start Date; provided, that
you shall have rights to reimbursement in accordance with this
Paragraph for any expenses incurred prior to such date so long as
you submit a reasonably detailed reimbursement request within
thirty days following such date. In addition, the Company shall pay
you any additional amount necessary to compensate you for any
federal, state and local taxes you may incur by reason of such
reimbursement payments (the “Gross Up Payment”) and any
additional amount necessary to compensate you for any such taxes
incurred by you by reason of the Gross Up Payment.
|
|
|
2.
|
Confidential Information and
Restricted Activities. You acknowledge that, in consideration for your
employment with the Company, you have agreed to and executed a
joinder to Oscient Pharmaceuticals’ Intellectual Property
Policy, including Appendix I thereof (“Invention, Assignment,
Non-Disclosure and Covenant Not To Compete”), which imposes
certain
|
2
non-competition, non-solicitation
and non-disclosure restrictions on you (such joinder being referred
to herein as the “Intellectual Property and Non-Compete
Agreement”).
3. Commitment re: Offerings.
You acknowledge and agree that, in consideration for your
employment with the Company, at the request of the Company you will
enter into an agreement with the Company’s lead underwriter
or placement agent for a Securities Transaction not to sell or
otherwise transfer or dispose of any Company securities for a
period of up to one hundred eighty (180) days, such agreement to be
in the form customary for such lead underwriter or placement agent
and the same as entered into by the other senior executive
employees of the Company. For the purposes of this Agreement,
“Securities Transaction” shall mean an offering of the
Company’s securities conducted by an underwriter or placement
agent.
4. Termination of Employment;
Severance. Your employment under this Agreement shall continue
until one party delivers to the other party a written notice of
termination setting forth the reason, if any, for the termination.
If you terminate your employment without Good Reason (as defined
below), you will give the Company two month’s written
notice.
|
|
a.
|
In the event of
termination of your employment by the Company other than for Cause
(as defined below) or your termination of employment for Good
Reason (as defined below), the Company will: (i) continue to pay
you your Base Salary and provide you with the benefits set forth in
Pa
|
|
