Attached files
| file | filename |
|---|---|
| 10-K - FORM 10-K 2009 - POZEN INC /NC | form10k2009.htm |
| EX-31.1 - EXHIBIT 31.1 - POZEN INC /NC | exhibit31_1.htm |
| EX-23.1 - EXHIBIT 23.1 - POZEN INC /NC | exhibit23_1.htm |
| EX-32.1 - EXHIBIT 32.1 - POZEN INC /NC | exhibit32_1.htm |
| EX-31.2 - EXHIBIT 31.2 - POZEN INC /NC | exhibit31_2.htm |
| EX-32.2 - EXHIBIT 32.2 - POZEN INC /NC | exhibit32_2.htm |
| EX-21.1 - EXHIBIT 21.1 - POZEN INC /NC | exhibit21_1.htm |
EXHIBIT 10.37
EXECUTIVE
EMPLOYMENT AGREEMENT
This
EXECUTIVE EMPLOYMENT AGREEMENT (the “Agreement”), is entered into effective as
of March 25, 2009 (the Effective Date”), by and between POZEN Inc. (the
“Company”), with offices located at Suite 400, 1414 Raleigh Road, Chapel Hill,
North Carolina 27517, and Everardus Orlemans, Ph.D. (“Executive”), whose address
is 300 Mimosa Drive, Chapel Hill, North Carolina 27514.
WITNESSETH:
WHEREAS,
the Company is engaged in certain pharmaceutical research, development and
marketing activities; and
WHEREAS,
the Company Executive in the position of Senior Vice President, Product
Development, and Executive desires to remain employed with the
Company.
NOW,
THEREFORE, in consideration of the foregoing and the provisions and mutual
promises herein contained and other good and valuable consideration, the parties
hereby agree as follows:
1. EMPLOYMENT. The
Company hereby agrees to continue to employ Executive, and Executive hereby
agrees to remain employed, as Senior Vice President, Product Development of the
Company, with such duties and responsibilities as are normally related to such
position in accordance with the standards of the industry and as specified in
Exhibit A, attached
hereto and incorporated herein by reference, and such additional duties as may
be assigned to Executive from time to time by the President or the Board of
Directors of the Company.
2. TERM. Executive’s
employment shall be for a term of one (1) year from the date of execution of
this Agreement (the “Initial Term”), and thereafter shall be automatically
renewed with additional one (1) year terms to follow consecutively, subject to
the termination and severance provisions herein later provided, unless amended
or modified by mutual agreement of the parties. As used herein,
“Term” shall include the Initial Term and any renewals thereof in accordance
with this Agreement.
3. EXCLUSIVE
SERVICE. Executive agrees to devote Executive’s full time and
attention to the performance of Executive’s duties and responsibilities on
behalf of the Company. Executive shall comply with all policies and
regulations of the Company and all applicable government laws, rules and
regulations that are now or hereafter in effect.
4. COMPENSATION. During
the Term of this Agreement, Executive’s compensation shall be determined and
paid as follows:
(a) Base
Salary. Executive shall receive an annual base salary of Two
Hundred Seventy-Three Thousand One Hundred Eighty Dollars ($273,180.00) payable
in accordance with the Company’s standard payroll practices and subject to
applicable withholdings. Annual increases will be made, if any, based
upon performance, and in the sole discretion of the Company, such increases, if
any, to be effective as may be set by the Committee by March 31 of each year
during the Term.
(b) Bonus. Executive
shall be eligible to receive an annual cash incentive bonus of up to forty
percent (40%) of Executive’s annual base salary as may be set by the Company by
March 31 of each year. The determination of the actual bonus earned,
if any, shall be at the sole discretion of the Company and shall be based upon
the Company’s assessment of Executive’s performance and the achievement of
certain objectives which shall be set by the Company from time to time.
Executive’s performance shall be evaluated by the Company on an annual basis,
and the Company shall adjust Executive’s compensation in its sole
discretion. Nothing in this section shall be construed as
guaranteeing Executive a bonus in any amount. If an annual bonus is
awarded, it shall be paid in the year following the year in which such bonus was
earned, on or before March 15 of such year.
(c) Stock
Options. Subject to the approval of the Compensation Committee
or the Board of Directors, Executive shall also be eligible to receive an annual
stock option or other incentive award, with the amount and form of any such
award being determined in the sole discretion of the Company.
(d) Benefits. Executive
shall be eligible to participate in the Company’s standard employee benefit
programs made available to employees of the Company from time to time, subject
to appropriate premium contributions, benefit elections, etc. and provided that
Executive meets the eligibility requirements thereof. In addition,
Executive shall be entitled to three (3) weeks of paid vacation per
year.
(e) Business
Expenses. The Company shall reimburse Executive for all
reasonable expenses incurred in the furtherance of the Company’s business and
interests, including travel and entertainment, provided that Executive complies
with the expense reporting policies and procedures of the Company.
(f) Adequate Office
Space. The Company shall provide to Executive adequate office
space, facilities, and administrative support appropriate to Executive’s
position.
5. TERMINATION. This
Agreement shall or may be terminated, as the case may be, upon the terms and
conditions hereinafter provided.
(a) Voluntary
Termination. This Agreement shall be considered voluntarily
terminated by the parties if either party provides written notice of such
party’s intent not to renew this Agreement, provided that such party shall
provide at least ninety (90) days’ written notice to the other party prior to
the last day of the Initial Term or any renewal term.
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(b) Involuntary
Termination. The Company may terminate this Agreement upon written notice
to Executive (or Executive’s representative) in any of the following
events:
(i) The
death of Executive;
(ii) Executive
becomes permanently disabled (as defined in Section 5(g) below); or
(iii) For
Cause, immediately upon written notice to Executive. “Cause” shall be
determined by the Board of Directors and shall mean: (A) breach by
Executive of the terms of this Agreement; (B) breach of the Nondisclosure,
Inventions and Non-Competition Agreement (described in Section 6 below); (C)
material failure by Executive to comply with the policies or directives of the
Company or the Board of Directors; (D) any illegal or dishonest action that is
materially detrimental to the Company; or (E) Executive’s failure to faithfully
carry out the duties of Executive’s position, provided that Executive shall be
given a period of thirty (30) days after receipt of written notice of such
failure during which to correct such failure; and (F) Executive’s violation of
the Company’s policies regarding harassment or unlawful
discrimination.
(c) Obligations upon Certain
Terminations. Upon voluntary termination of this Agreement, or
termination of Executive’s employment by the Company for Cause (as defined
above) or upon Executive’s death or disability, or termination by Executive for
other than Good Reason (as defined below), the Company shall have no further
obligations hereunder other than the payment of all compensation and other
benefits payable to Executive through the date of such termination. Such amounts
shall be paid on the Company’s next regularly scheduled payroll date unless any
such amount is not then calculable, in which case payment of such amount shall
be made on the first regularly scheduled payroll date after the amount is
calculable but no later than March 15 of the year following the year in which
the Executive’s employment terminated.
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(d) Severance.
(i) In
the event of termination of Executive’s employment (A) by the Company for
reasons other than Cause or Executive’s death or disability, or (B) by Executive
for Good Reason, and provided Executive executes and does not revoke a release
and settlement agreement (the “Release”) in a form acceptable to the Company,
Executive shall receive a severance benefit, subject to any applicable taxes and
withholdings, in an amount equal to one (1) year’s base salary (the “Salary
Benefit”) plus the average annual bonus awarded Executive over the previous two
(2) years (the Bonus,” and, together with the Salary Benefit, the “Severance
Benefit”). Subject to Section 5(d)(ii) below, the Company shall pay the Salary
Benefit, in monthly installments, on the fifth business day of each month
commencing with the second month following the month in which Executive’s
termination of employment occurred. The Company shall pay the Bonus in a lump
sum payment within ninety (90) days of the date of termination of Executive’s
employment (the “Termination Date”), but in no event later than March 15 of the
year following the year in which such termination of employment occurred, or in
the event of termination pursuant to Section 5(e)(iv), no later than March 15 of
the year following the year in which the Change of Control
occurred. Executive shall also continue to be entitled to receive all
Company nontaxable health and other nontaxable employee benefits to which
Executive was entitled as of the Termination Date, subject to the terms of all
applicable benefit plans and to the extent such benefits can be provided to
non-employees (or to the extent such benefits cannot be provided to
non-employees, then the amount the Company was paying for those benefits
immediately prior to the Termination Date), at the same average level and on the
same terms and conditions which applied immediately prior to the Termination
Date, for the shorter of (i) one year following the date of such Termination
Date or (ii) until Executive obtains comparable coverage from another employer
(the “Continuing Benefits”).
(ii) Notwithstanding
the foregoing, if Executive is on the termination date a “specified employee”
(as defined in Section 409A of the Internal Revenue Code, as amended (the
“Code”) and the regulations promulgated under such Section 409A (“Code Section
409A”) and as determined in accordance with the permissible method then in use
by the Company, or, if none, in accordance with the applicable default
provisions of Code Section 409A, relating to “specified employees”), then if and
to the extent required in order to avoid the imposition on Executive of any
excise tax under Code Section 409A, the payment of any Severance Benefit,
Continuing Benefits or other payments under this Section 5 shall not commence
until, and shall be made on, the first business day after the date that is six
(6) months following the Termination Date, and in such event the initial payment
shall include a catch-up amount covering amounts that would otherwise have been
paid during the six-month period following the Termination Date.
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(e) Good
Reason. For purposes of this Agreement, “Good Reason” shall
mean, the occurrence, without the consent of Executive, of any of the following
events, unless, in the case of (i), (ii) and (iii) below, such event is
corrected within thirty (30) days after written notification by Executive to the
Company of the same: (i) the office from which Executive performs Executive’s
principal duties is moved more than fifty (50) miles from the current location
of the Company’s offices in Chapel Hill, North Carolina; (ii) Executive’s duties
and responsibilities are substantially reduced or diminished; (iii) the Company
materially breaches its obligations under this Agreement; or (iv) a Change of
Control (as defined below) occurs and Executive notifies the Company in writing
within sixty (60) days of the consummation of such Change of Control that
Executive intends to terminate Executive’s employment as a result of the Change
of Control, in which event such termination shall be effective not less than
sixty (60) days after the date of such written notice.
(f) Disability. For
purposes of this Agreement, Executive shall be considered permanently disabled
when a qualified medical doctor mutually acceptable to the Company and Executive
or Executive’s personal representative shall have certified in writing
that: (i) Executive is unable because of medically determinable
physical or mental disability to perform substantially all of Executive’s duties
for more than one hundred eighty (180) calendar days measured from the last full
day of work; or (ii) by reason of mental or physical disability, it is unlikely
that Executive will be able, within one hundred eighty (180) calendar days, to
resume substantially all business duties and responsibilities in which Executive
was previously engaged and otherwise discharge Executive’s duties under this
Agreement.
(g) Change of
Control. For purposes of this Agreement, a “Change of Control”
shall be deemed to have occurred:
(i) If
any person (as such term is used in sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”)) (other than the Company
or any trustee or fiduciary holding securities under an employee benefit plan of
the Company) becomes a beneficial owner (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company representing
more than 50% of the voting power of the then outstanding securities of the
Company; provided that a Change of Control shall not be deemed to occur as a
result of a transaction in which the Company becomes a subsidiary of another
corporation and in which the stockholders of the Company, immediately prior to
the transaction, will beneficially own, immediately after the transaction,
shares entitling such stockholders to more than 50% of all votes to which all
stockholders of the parent corporation would be entitled in the election of
directors (without consideration of the rights of any class of stock to elect
directors by a separate class vote); or
(ii) Upon
the consummation of (A) a merger or consolidation of the Company with another
corporation where the stockholders of the Company, immediately prior to the
merger or consolidation, will not beneficially own, immediately after the merger
or consolidation, shares entitling such stockholders to more than 50% of all
votes to which all stockholders of the surviving corporation would be entitled
in the election of directors (without consideration of the rights of any class
of stock to elect directors by a separate class vote), or (B) a sale or other
disposition of all or substantially all of the assets of the
Company.
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6. NON-DISCLOSURE,
INVENTIONS AND NON COMPETITION. Executive acknowledges that Executive
has executed and agrees to continue to be bound by the terms of the Company’s
standard non-disclosure, inventions and non-competition agreement in the form
attached hereto as Exhibit
B and that such terms are incorporated herein by reference and made a
material part of this Agreement (the “Nondisclosure Agreement”).
7. NOTICES. Any
notice required to be given shall be in writing personally delivered by
certified mail or registered mail or by facsimile (receipt confirmed) to the
address last shown in the Company’s records.
8. SEVERABILITY. The
provisions of this Agreement shall be deemed severable, and the invalidity or
unenforceability of any provision (or part thereof) of this Agreement shall in
no way affect the validity or enforceability of any other provision (or
remaining part thereof).
9. GOVERNING
LAW. This Agreement shall be governed by and construed according to
the laws of the State of North Carolina, without reference to the choice of law
provisions of such laws.
10. ENTIRE
AGREEMENT. This Agreement and the Nondisclosure Agreement (including
any exhibits or schedules hereto or thereto) contain 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 which are not set forth herein or therein. In
particular, without limiting the foregoing, this Agreement supersedes in its
entirety that certain offer letter from the Company to Executive dated September
1, 2005. No modification of this Agreement shall be valid unless made
in writing and signed by the parties hereto.
11. BENEFIT. This
Agreement shall be binding upon and inure to the benefit of both parties and
their respective heirs, representatives, successors and assigns, including any
corporation or other entity with which or into which the Company may be merged
or which may succeed to its assets or business; provided, however, that the
obligations of Executive are personal and shall not be assigned by
Executive.
12. EXECUTIVE
REPRESENTATIONS.
(a) Executive
represents that her performance of this Agreement and as an employee of the
Company does not and will not breach any employment, non-competition or other
agreement to keep confidential any confidential or proprietary information
acquired by Executive in confidence or in trust prior to Executive’s employment
by the Company. Executive represents that she has not entered into,
and agrees not to enter into, any agreement that conflicts with or violates this
Agreement or would prevent or interfere with the Company’s employment of
Executive on the terms set forth herein.
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(b) Executive
represents that he has not brought and shall not use in the performance of
Executive's responsibilities for the Company, any materials or documents of a
former employer which are not generally available to the public or which did not
belong to Executive prior to Executive’s employment with the Company, unless
Executive has obtained written authorization from the former employer or other
owner for their possession and use and provided the Company with a copy
thereof.
13. INJUNCTIVE
RELIEF. Executive understands and agrees that the Company will suffer
irreparable harm in the event that Executive breaches any of Executive’s
obligations under this Agreement and that monetary damages will be inadequate to
compensate the Company for such breach. Accordingly, Executive agrees
that, in the event of a breach or threatened breach by Executive of any of the
provisions of this Agreement, the Company, in addition to and not in limitation
of any other rights, remedies, or damages available to the Company at law or in
equity, shall be entitled to a permanent injunction in order to prevent or to
restrain any such breach by Executive, or by Executive’s partners, agents,
representatives, servants, employers, employees and/or any and all persons
directly or indirectly acting for or with Executive; provided such injunction
shall not affect Executive’s ownership rights in the Company or compensation
earned or due Executive.
[Signature
page follows]
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IN
WITNESS WHEREOF, the parties hereto have executed this Executive Employment
Agreement and affixed their seals as of the day and year first above
written.
EMPLOYER:
POZEN
INC.
By:_____________________________________
Name: John
R. Plachetka, Pharm.D.
Title: Chairman,
President and CEO
EMPLOYEE:
_________________________________________
Everardus Orlemans, Ph.D.
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EXHIBIT
A
Responsibility
and Tasks List
Key
Responsibilities and Standards of Performance
Senior
Vice President, Product Development
POZEN,
Inc
|
1)
|
Manage
and supervise all product development activities at POZEN (Preclinical,
Clinical Development, Clinical Research, Biostatistics, Pharmaceutical
Development, Regulatory Affairs and Project
Management) (40%)
|
|
a.
|
Standards
of Performance
|
|
i.
|
All
activities performed on time, on budget, and according to GCP/GLP/GMP and
FDA and other regulatory standards
|
|
ii.
|
No
unavoidable surprises to CEO or BOD
|
|
iii.
|
All
activities performed within corporate guidelines and development
plans
|
|
iv.
|
All
regulatory submissions should be well constructed, strategically
consistent with corporate philosophy, and designed to gain approval of
regulators upon initial submission
|
|
v.
|
Employees
supervised in a manner consistent with corporate philosophy and
culture
|
|
vi.
|
Performance
reviews completed on time and with appropriate
actions
|
|
2)
|
Create,
update and manage product development plans for each project
(20%)
|
|
a.
|
Standards
of Performance
|
|
i.
|
Define
clinical indication and target profile sufficient for registration and
partnering
|
|
ii.
|
Develop
registration strategy for US and EU for approval by CEO and
BOD
|
|
iii.
|
With
the CEO and other members of the senior staff, identify go/no go decision
points
|
|
iv.
|
Establish
and revise, as appropriate, activities, budgets, and timelines for each
project to achieve corporate
objectives
|
|
v.
|
Maintain
corporate infrastructure to successfully execute development activities
(using an outsource model) consistent with achieving corporate objectives
and goals
|
|
3)
|
Review
and approve all documents subject to regulatory and medical review
(20%)
|
|
a.
|
Standards
of Performance
|
|
i.
|
Clinical
protocols contain rationale for dosage selection, objectives, procedures,
statistical analyses and entry criteria that will optimize recruitment and
achieve the objectives of the development plan in a timely
manner
|
|
ii.
|
Study
reports are completed in a timely fashion, succinctly according to ICH/FDA
guidelines, and in keeping with corporate strategy for content and
submission
|
|
iii.
|
All
FDA communications and regulatory submissions are drafted and approved at
the appropriate level prior to
submission
|
|
iv.
|
Templates,
SOPs, internal guidelines and standards are instituted and maintained as
needed in a manner that enhances consistency and
compliance
|
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|
4)
|
Support
Investor Relations and Business Development
(20%)
|
|
a.
|
Standards
of Performance
|
|
i.
|
Provide
Product Development recommendation on in-license candidates in a timely
and professional manner and consistent with corporate objectives and
philosophy
|
|
ii.
|
Provide
product specific presentations to prospective commercial partners in a
professional manner consistent with corporate
objectives
|
|
iii.
|
Draft
press releases accurately describing results of POZEN
studies
|
|
iv.
|
Present
product development overviews to potential investors or analysts as needed
by Investor Relations
|
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EXHIBIT
B
NON-DISCLOSURE,
INVENTION AND NON-COMPETITION AGREEMENT
THIS NON-DISCLOSURE, INVENTION AND
NON-COMPETITION AGREEMENT (the "Agreement") is effective for all purposes and in
all respects, by and between POZEN Inc., a Delaware corporation
(hereinafter referred to as "Employer"), and Everardus O. M. Orlemans,
Ph.D. (hereinafter referred to as "Employee").
WHEREAS, Employer is about to employ
Employee in a position of trust and confidence to aid Employer in its business;
and
WHEREAS, Employer desires to receive
from Employee a covenant not to disclose certain information relating to
Employer's business and certain other covenants; and
WHEREAS, as a material inducement to
Employer to employ Employee and to pay to Employee compensation for such
services, Employee has agreed to such covenants; and
WHEREAS, Employer and Employee desire
to set forth in writing the terms and conditions of their agreements and
understandings.
NOW, THEREFORE, in consideration of the
foregoing, of the mutual promises herein contained, and of other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending legally to be bound, hereby agree as
follows:
1. Disclosure of
Information. Employee acknowledges that, in and as a result of
his employment by Employer, he will be making use of, acquiring and/or adding to
confidential information of a special and unique nature and value, including,
without limitation, Employer's trade secrets, products, systems, programs,
procedures, manuals, guides (as periodically updated or supplemented),
confidential reports and communications (including, without limitation, customer
site information, technical information on the performance and reliability of
Employer's products and the development or acquisition of future products or
product enhancements by Employer) and lists of customers, as well as the nature
and type of the services rendered by Employer and the fees paid by Employer's
customers. Employee further acknowledges that any information and
materials received by Employer from third parties in confidence (or subject to
non-disclosure covenants) shall be deemed to be and shall be confidential
information within the meaning of this Section 1. As a material
inducement to Employer to employ Employee and to pay to Employee compensation
for such services to be rendered to Employer by Employee (it being understood
and agreed by the parties hereto that such compensation shall also be paid and
received in consideration hereof), Employee covenants and agrees that he shall
not, except with the prior written consent of the Board of Directors of
Employer, at any time during or following the term of his employment with
Employer, directly or indirectly, divulge, reveal, report, publish, transfer or
disclose, for any purpose whatsoever, any of such confidential information which
has been obtained by or disclosed to him as a result of his employment with
Employer, including, without limitation, any Proprietary Information, as defined
in Section 2 hereof; Employee agrees further that upon termination of his
employment with Employer for any reason, he shall sign the Employee Termination
Statement, a form of which is attached hereto. The aforementioned obligation of
confidentiality and non-disclosure shall not apply when:
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(a) Public Domain. The
information disclosed to Employee was in the public domain at the time of
disclosure, or at any time after disclosure has become a part of the public
domain by publication or otherwise through sources other than Employee, directly
or indirectly, and without fault on the part of Employee in failing to keep such
information confidential; or
(b) Requirement of Law or
Order. Disclosure is required by law or court order, provided
Employee gives Employer prior written notice of any such disclosure;
or
(c) Agreement. Disclosure
is made with the prior written agreement of the Board of Directors of Employer;
or
(d) Prior
Information. The information is encompassed by the ideas and
inventions listed on Schedule A hereto or
was in Employee’s possession at the time of disclosure, as shown by written
records in existence prior to such time, and such information has not been
transferred to Employer, and was not acquired, directly or indirectly, from the
Employer; or
(e) Third Party
Disclosure. The information is lawfully disclosed to Employee
after the termination of his employment by a third party who is under no
obligation of confidentiality to Employer with respect to such information;
or
(f) Independently
Developed. Such information is independently developed by
Employee subsequent to the termination of his active participation in the
business of Employer, as demonstrated by written records of Employee which are
contemporaneously maintained.
2. Definition of Proprietary
Information. For purposes of this Agreement, the term
"Proprietary Information" shall mean all of the following materials and
information (whether or not reduced to writing and whether or not patentable or
protectable by copyright) which Employee receives, receives access to, conceives
of or develops, in whole or in part, as a direct or indirect result of his
employment with Employer, in the course of his employment with Employer (in any
capacity, whether executive, managerial, planning, technical, sales, research,
development, manufacturing, engineering or otherwise) or through the use of any
of Employer's facilities or resources:
(i) Manufactured
products, assembled or unassembled, and any related goods or systems and any and
all future products, software or systems developed or derived
therefrom;
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(ii) With
respect to the items described in Section 2(i) above, all hardware and software
relating to design or manufacture; all source and object codes to such hardware
and software; all specifications, design concepts, documents and manuals; all
security systems relating to the product or procedures, including, without
limitation, software security systems;
(iii) Trade
secrets, production processes, marketing techniques, mailing lists, purchasing
information, price lists, pricing policies, quoting procedures, financial
information, customer and prospect names and requirements, customer data,
customer site information and other materials or information relating to the
manner in which Employer does business;
(iv) Discoveries,
concepts and ideas, whether or not patentable or protectable by copyright,
including, without limitation, the nature and results of research and
development activities, technical information on product or program performance
and reliability, processes, formulas, techniques, "know-how", source codes,
object codes, designs, drawings and specifications;
(v) Any
other material or information related to the business or activities of Employer
which is not generally known to others engaged in similar businesses or
activities;
(vi) Any
other material or information that has been created, discovered or developed, or
otherwise becomes known to Employer which has commercial value in the business
in which Employer is engaged; and
(vii) All
ideas which are derived from or relate to Employee's access to or knowledge of
any of the above-enumerated materials and information.
Failure to mark any of the Proprietary
Information as confidential shall not affect its status as part of the
Proprietary Information under the terms of this Agreement.
3. Ownership of
Information.
(i) Employee
hereby assigns to Employer all of Employee's right, title and interest in any
idea (whether or not patentable or protectable by copyright), product,
invention, discovery, computer software program or other computer-related
equipment or technology, conceived or developed in whole or in part, or in which
Employee may have aided in its development, while employed by Employer,
including, without limitation, any Proprietary Information. If any
one or more of the aforementioned are deemed in any way to fall within the
definition of "work made for hire", as such term is defined in 17 U.S.C.
§ 101, such work shall be considered "work made for hire", the copyright of
which shall be owned solely, completely and exclusively by
Employer. If any of the aforementioned are considered to be work not
included in the categories of work covered by the "work made for hire"
definition contained in 17 U.S.C. § 101, such work shall be owned solely
by, or assigned or transferred completely and exclusively to,
Employer. Employee agrees to execute any instruments and to do all
other things reasonably requested by Employer (both during and after Employee's
employment with Employer) in order to more fully vest in Employer all ownership
rights in those items thereby transferred by Employee to
Employer. Employee further agrees to disclose immediately to Employer
all Proprietary Information conceived of or developed in whole or in part by him
during the term of his employment with Employer and to assign to Employer any
right, title or interest he may have in such Proprietary
Information.
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(ii) Employee
hereby represents and warrants that Employee has fully disclosed to Employer on
Schedule A
hereto any idea, invention, product, improvement, computer software program or
other equipment or technology related to therapeutic pharmaceuticals (an
“Invention”) not covered in Section 3(i) above which, prior to his employment
with Employer, Employee conceived of or developed, wholly or in part, and in
which Employee has any right, title or proprietary interest and which directly
relate to Employer's business, but which has not been published or filed with
the United States Patent or Copyright Offices or assigned or transferred to
Employer. If there is no such list of Schedule A, Employee
represents that Employee has made no such Inventions at the time of signing this
Agreement or Employee hereby assigns such Inventions to Employer.
(iii) Notwithstanding
anything in this Agreement to the contrary, the obligation of Employee to assign
or offer to assign his rights in an Invention to Employer shall not extend or
apply to an Invention that Employee developed entirely on his own time without
using Employer's equipment, supplies, facility or trade secret information
unless such Invention (a) relates to Employer's business or actual or
demonstrably anticipated research or development, or (b) results from any work
performed by Employee for Employer. Employee shall bear the burden of
proof in establishing that his Invention qualifies for exclusion under this
Section 3(iii). With respect to Section 3(iii), it is agreed and
acknowledged that during Employee’s employment, Employer may enter other lines
of business, which are related or unrelated to its current lines of business, in
which case this Agreement would be expanded to cover such new lines of
business.
4. Injunctive
Relief. Employee understands and agrees that Employer will
suffer irreparable harm in the event that Employee breaches any of his
obligations under this Agreement and that monetary damages will be inadequate to
compensate Employer for such breach. Accordingly, Employee agrees
that, in the event of a breach or threatened breach by Employee of any of the
provisions of this Agreement, Employer, in addition to and not in limitation of
any other rights, remedies or damages available to Employer at law or in equity,
shall be entitled to a permanent injunction in order to prevent or to restrain
any such breach by Employee, or any of employee's partners, agents,
representatives, servants, employers, employees and/or any and all persons
directly or indirectly acting for or with him.
5. Records. All
notes, data, tapes, reference materials, sketches, drawings, memoranda, models
and records in any way relating to any of the information referred to in
Sections 1, 2 and 3 hereof (including, without limitation, any Proprietary
Information) or to Employer's business shall belong exclusively to Employer, and
Employee agrees to turn over to Employer all such materials and all copies of
such materials in his possession or then under his control at the request of
Employer or, in the absence of such a request, upon the termination of
Employee's employment with Employer.
6. Accounting for
Profits. Employee covenants and agrees that, if he shall
violate any of his covenants or agreements under this Agreement, Employer shall
be entitled to an accounting and repayment of all profits, compensation,
commissions, remunerations or benefits which Employee directly or indirectly has
realized and/or may realize as a result of, growing out of or in connection with
any such violation; such remedy shall be in addition to and not in limitation of
any injunctive relief or other rights or remedies to which Employer is or may be
entitled at law, in equity or under this Agreement.
7. Covenant Not to
Compete. It is recognized and understood by the parties hereto
that Employee, through Employee's association with Employer as an employee,
shall acquire a considerable amount of knowledge and goodwill with respect to
the business of Employer, which knowledge and goodwill are extremely valuable to
Employer and which would be extremely detrimental to Employer if used by
Employee to compete with Employer. It is, therefore, understood and
agreed by the parties hereto that, because of the nature of the business of
Employer, it is necessary to afford fair protection to Employer from such
competition by Employee. Consequently, as a material inducement to
employ Employee in the aforementioned positions, Employee covenants and agrees
to the following:
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(a) Except
as otherwise approved in writing by Employer, Employee agrees:
(i) that
Employee will not, directly or indirectly, with or through any family member or
former director, officer or employee of Employer, or acting along or as a member
of a partnership or as an officer, holder of or investor in as much as 5% of any
security of any class, director, employee, consultant or representative of any
corporation or other business entity:
(1) at any time while engaged as an
employee of Employer and for a period of two (2) years following termination as
an employee, interfere with, or seek to interfere with, the relationship between
Employer or any affiliate of Employer and the following: (a) any of the
employees of such entities; (b) any of the customers of such entities then
existing or existing at any time within three (3) years prior to termination of
Employee’s employment by Employer; or (c) any of the suppliers of such
entities then existing or existing at any time within three (3) years prior to
termination of Employee’s employment by Employer.
(b) The
parties hereto agree that in the event that either the length of time or the
geographic area set forth in paragraph (a) is deemed too restrictive in any
court proceeding, that the court may reduce such restrictions to those which it
deems reasonable under the circumstances.
(c) Employee
agrees and acknowledges that Employer does not have any adequate remedy at law
for the breach or threatened breach by him of this covenant and agrees that
Employer may in addition to the other remedies which may be available to it
under this Agreement, file a suit in equity to enjoin Employee from such breach
or threatened breach.
8. Reasonableness of
Restrictions.
(a) Employee
has carefully read and considered the provisions of Sections 1 through 7 hereof
and, having done so, agrees that the restrictions set forth therein are fair and
reasonable and are reasonably required for the protection of the interests of
Employer, its officers, directors, stockholders and employees.
(b) In
the event that, notwithstanding the foregoing, any part of the covenants set
forth in Sections 1 through 7 hereof shall be held to be invalid and
unenforceable, the court so deciding may reduce or limit the terms of such
provision to allow such provision to be enforced.
9. Burden and
Benefit. This Agreement shall be binding upon, and shall inure
to the benefit of, Employer and Employee, and their respective heirs, personal
and legal representatives, and, in the case of Employer, its successors and
assigns.
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10. Governing
Law. In view of the fact that the principal office of Employer
is located in the State of North Carolina, it is understood and agreed that the
construction and interpretation of this Agreement shall at all times and in all
respects be governed by the laws of the State of North Carolina.
11. Severability. The
provisions of this Agreement shall be deemed severable, and the invalidity or
unenforceability of any one or more of the provisions hereof shall not affect
the validity or enforceability of the other provisions hereof.
12. Employer. As
used herein, the term "Employer" shall also include any corporation which is at
any time the parent or a subsidiary of Employer, or any corporation or entity
which is an affiliate of Employer by virtue of common (although not identical)
ownership, and for which Employee is providing services in any form during his
employment with Employer or any such other corporation or entity.
13. Notices. Any
notice required to be given hereunder shall be sufficient if in writing, and
sent by certified or registered mail, return receipt requested, first-class
postage prepaid, in the case of Employee, to his address as shown on Employer's
records, and in the case of Employer, to its principal office in the State of
North Carolina.
14. Entire
Agreement. This Agreement contains the entire agreement and
understandings by and between Employer and Employee with respect to the
covenants herein described, and no representations, promises, agreements or
understandings, written or oral, not herein contained shall be of any force or
effect. Nothing contained in this Agreement shall be deemed or
construed to constitute an agreement by Employer to employ or continue to employ
Employee. No change or modification hereof shall be valid or binding
unless the same is in writing and signed by the parties hereto. No
waiver of any provision of this Agreement shall be valid unless the same is in
writing and signed by the party against whom such waiver is sought to be
enforced; moreover, no valid waiver of any provision of this Agreement at any
time shall be deemed a waiver of any other provision of this Agreement at such
time nor will it be deemed a valid waiver of such provision at any other
time.
15. Headings. The
headings and other captions in this Agreement are for convenience and reference
only and shall not be used in interpreting, construing or enforcing any of the
provisions of this Agreement.
16. Effective
Date. This Agreement shall be effective as of the date
September 7, 2005.
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IN WITNESS WHEREOF, Employer and
Employee have duly executed this Agreement as of the day and year first above
written.
EMPLOYER:
POZEN Inc.
| By: | ||
| Name: | John E. Barnhardt | |
| Title: | Vice President, Finance and Administration |
EMPLOYEE:
___________________________________ _______________________________
Everardus
O. M. Orlemans,
Ph.D. Date
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SCHEDULE A
Inventions,
Ideas, Products, Etc. Not Covered in Section 3(i) of the Agreement
[Note: If
Employee has no such items to disclose, write "NONE" on this
line: ___________.]
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