Aegerion Pharmaceuticals, Inc. - FORM 10-Q - EX-10.1 - EMPLOYMENT AGREEMENT WITH MARTHA CARTER, DATED FEBRUARY 14, 2011 - May 16, 2011
This Employment Agreement (this Agreement) is made and entered into as of this 14th day of February 2011, by and between Aegerion Pharmaceuticals, Inc., a Delaware corporation (the Company), and Martha J. Carter (the Employee).
W I T N E S S E T H:
WHEREAS, the Company desires to employ Employee and to enter into this Agreement embodying the terms of such employment, and Employee desires to enter into this Agreement and to accept such employment, subject to the terms and provisions of this Agreement.
NOW, THEREFORE, in consideration of the promises and mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are mutually acknowledged, the Company and Employee hereby agree as follows:
Section 1. Definitions.
(a) Accrued Obligations shall mean (i) all accrued but unpaid Base Salary through the Date of Termination, (ii) any unpaid or unreimbursed expenses incurred in accordance with Section 6 hereof, and (iii) any accrued but unused vacation time through the Date of Termination.
(b) Base Salary shall mean the salary provided for in Section 4(a) hereof.
(c) Board shall mean the Board of Directors of the Company.
(d) Confidentiality Agreement shall mean the Companys Confidentiality, Assignment and Noncompetition Agreement attached hereto as Exhibit A.
(e) Cause shall mean (i) Employees failure (except where due to a Disability), neglect or refusal to perform in any material respect Employees duties and responsibilities, (ii) any act of Employee that has, or could reasonably be expected to have, the effect of injuring the business of the Company or its affiliates in any material respect, (iii) Employees conviction of. or plea of guilty or no contest to: (x) a felony or (y) any other criminal charge that has, or could be reasonably expected to have, an adverse impact on the performance of Employees duties to the Company or otherwise result in material injury to the reputation or business of the Company, (iv) the commission by Employee of an act of fraud or embezzlement against the Company, or any other act that creates or reasonably could create negative or adverse publicity for the Company; (v) any violation by Employee of the policies of the Company, including but not limited to those relating to sexual harassment or business conduct, and those otherwise set forth in the manuals or statements of policy of the Company, (vi) Employees violation of federal or state securities laws, or (vii) Employees breach of this Agreement or breach of the Confidentiality Agreement.
(f) Code shall mean the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder.
(g) Date of Termination shall mean the date on which Employees employment terminates.
(h) Disability shall mean any physical or mental disability or infirmity of Employee that prevents the performance of Employees duties for a period of (i) ninety (90) consecutive days or (ii) one hundred twenty (120) non-consecutive days during any twelve (12) month period. Any question as to the existence, extent, or potentiality of Employees Disability upon which Employee and the Company cannot agree shall be determined by a qualified, independent physician selected by the Company and approved by Employee (which approval shall not be unreasonably withheld). The determination of any such physician shall be final and conclusive for all purposes of this Agreement.
(i) Effective Date shall mean February 14, 2011.
(j) Good Reason shall mean, without Employees consent, (i) a material diminution in Employees material duties or responsibilities, (ii) a material reduction in Base Salary as set forth in Section 4(a) hereof (other than pursuant to an across-the-board reduction applicable to all similarly situated executives), (iii) the relocation of Employees principal place of employment more than fifty (50) miles from its current location, or (iv) any other material breach of a provision of this Agreement by the Company (other than a provision that is covered by clause (i), (ii), or (iii) above). Employee acknowledges and agrees that Employees exclusive remedy in the event of any breach of this Agreement shall be to assert Good Reason pursuant to the terms and conditions of Section 7(e) hereof. Notwithstanding the foregoing, during the Term, in the event that the Company reasonably believes that Employee may have engaged in conduct that could constitute Cause hereunder, the Company may, in its sole and absolute discretion, suspend Employee from performing Employees duties hereunder, and in no event shall any such suspension constitute an event pursuant to which Employee may terminate employment with Good Reason or otherwise constitute a breach hereunder; provided, that no such suspension shall alter the Companys obligations under this Agreement during such period of suspension.
(k) Release of Claims shall mean a separation agreement in a form acceptable to the Company under which Employee releases the Company from any and all claims and causes of action and the execution of which is a condition precedent to Employees eligibility for Severance Benefits in the event his employment is terminated by the Company without Cause or by Employee for Good Reason, as described in Sections 7(d) and 7(e).
(l) Severance Benefits shall mean (i) continued payment of Base Salary during the Severance Term, payable in accordance with the Companys regular payroll practices; and (ii) subject to the Employees timely election of COBRA and copayment of premium amounts at the active employees rate, payment of the employer portion of the premiums for the Companys group health and dental program for the Employee in order to allow him to continue to participate in the Companys group health and dental program until the earlier of (Y) 12 months from the Date of Termination, and (Z) the date the Employee becomes re-employed and eligible for health and/or dental insurance.
(m) Severance Term shall mean the 12 month period, which commences on the first pay day that is at least thirty-five (35) days from the Date of Termination following termination by the Company without Cause or by Employee for Good Reason.
Section 2. Acceptance and Term.
The Company agrees to employ Employee on an at-will basis, and Employee agrees to accept such employment and serve the Company, in accordance with the terms and conditions set forth herein. The term of employment (referred to herein as the Term) shall commence on the Effective Date and shall continue until terminated by either party at any time, subject to the provisions herein.
Section 3. Position, Duties, and Responsibilities; Place of Performance.
(a) Position, Duties, and Responsibilities. During the Term, Employee shall be employed and serve as Chief Regulatory Officer and Senior Vice President of the Company (together with such other position or positions consistent with Employees title or as the Company shall specify from time to time) and shall have such duties and responsibilities commensurate therewith, and such other duties as may be assigned and/or prescribed from time to time by the Chief Executive Officer and/or the Board.
(b) Performance. Employee shall devote his full business time, attention, skill, and best efforts to the performance of his duties under this Agreement and shall not engage in any other business or occupation during the Term, including, without limitation, any activity that (x) conflicts with the interests of the Company, (y) interferes with the proper and efficient performance of Employees duties for the Company, or(z) interferes with Employees exercise of judgment in the Companys best interests. Notwithstanding the foregoing, nothing herein shall preclude Employee from (i) serving, with the prior written consent of the Board, as a member of the boards of directors or advisory boards (or their equivalents in the case of a non-corporate entity) of non-competing businesses and charitable organizations, (ii) engaging in charitable activities and community affairs, and (iii) managing Employees personal investments and affairs; provided, however, that the activities set out in clauses (i), (ii), and (iii) shall be limited by Employee so as not to interfere, individually or in the aggregate, with the performance of Employees duties and responsibilities hereunder. Employee represents that he has provided the Company with a comprehensive list of all outside professional activities with which he is currently involved or reasonably expects to become involved. In the event that, during his employment by the Company, the Employee desires to engage in other outside professional activities, not included on such list, Employee will first seek written approval from the CEO or President and such approval shall not be unreasonably withheld.
Section 4. Compensation.
(a) Base Salary. In exchange for Employees satisfactory performance of his duties and responsibilities, Employee initially shall be paid a bi-weekly Base Salary of $10,576.92 ($275,000 on an annualized basis), payable in accordance with the regular payroll practices of the Company. All payments in this Agreement are on a gross, pre-tax basis and shall be subject to all applicable federal, state and local withholding, payroll and other taxes.
(b) Bonus Eligibility. In addition to your Base Salary, you will be eligible for the following bonus compensation:
(i) Target Bonus: Employee will be eligible to earn an annual target bonus of up to 30% of your Base Salary (the Target Bonus). The actual amount of such bonus, if any, will be determined by the Board and Employees manager in their sole discretion, based upon Company performance, Employees achievement of a series of performance milestones, and any other factors that the Board, in its discretion, deem appropriate. Please note that Employees achievement of such milestones, as well as the amount of any bonus, shall be determined by the Board and Employees manager in their sole discretion. Typically, bonuses, if any, are paid out no later than March 15 of the year following the applicable bonus year, Except as specifically set forth in Section 7, please also note that Employee must be employed by Aegerion at the time of any such bonus payment in order to be eligible for any such payment.
(ii) Milestone Bonus: In addition, Employee also will be eligible to receive a cash bonus equal to 5% of his Base Salary upon the occurrence of each of the following events (the Milestone Bonus): (1) approval of Lomitapide by the U.S. Food and Drug Administration (the FDA), and (2) approval of Lomitapide by the European Medicines Agency (the EMA). These bonuses, if any, will be paid out following the occurrence of the milestone event to which reference is made in sub-sections 4(b)(ii)(l)-(2) and no later than March 15 of the year following such event. Except as specifically set forth in Section 7, Employee must be employed by the Company at the time of any such bonus payments in order to be eligible for any such payment.
(c) Stock Options/Equity Grants. Subject to Board approval, the Company will offer to you the option (the Initial Option Award) to purchase 132,000 shares of the Companys common stock, $0,001 par value per share (the Common Stock). The Initial Option Award shall have an exercise price equal to the fair market value of the Common Stock on the date of grant (as determined by the Board or Compensation Committee thereof). The Initial Option Award shall be subject to vesting and shall be issued pursuant to the terms of the Companys 2010 Stock Option and Incentive Plan (or a successor plan, if any) and subject to the terms of a stock option agreement thereunder (collectively the Equity Documents). The vesting schedule for Employees Initial Option Award will be the vesting schedules outlined in the Equity Documents (i.e., the option to purchase 88,000 shares will vest over 4 years in equal monthly installments commencing immediately upon the date of the grant, and the option to purchase 44,000 shares will vest over 4 years in equal monthly installments commencing upon submission of the NDA and MAA for Lomitapide to the FDA and EMA, respectively). The full terms and conditions related to these option grants shall be set forth in the Equity Documents and to the extent that there is any inconsistency between this Agreement and the Equity Documents, the Equity Documents shall control.
Section 5. Employee Benefits.
During the Term, Employee shall be eligible to participate in health insurance and other benefits provided generally to similarly situated employees of the Company, subject to the terms and conditions of the applicable benefit plans (which shall govern). Employee also shall be
eligible to accrue up to four weeks of vacation and the same number of holidays as well as any other benefits, in each case as are generally allowed to similarly situated employees of the Company in accordance with the Company policy as in effect from time to time. Nothing contained herein shall be construed to limit the Companys ability to amend, suspend, or terminate any employee benefit plan or policy at any time without providing Employee notice, and the right to do so is expressly reserved.
Section 6. Reimbursement of Business Expenses.
During the Term of Employment, the Company shall pay (or promptly reimburse Employee) for documented, out-of-pocket expenses reasonably incurred by Employee in the course of performing his duties and responsibilities hereunder, which are consistent with the Companys policies in effect from time to time with respect to business expenses, subject to the Companys requirements with respect to reporting of such expenses.
Section 7. Termination of Employment.
(a) General. Employees employment with the Company shall terminate upon the earliest to occur of any of the following (whether before or after a Sale Event, as that term is defined in the 2010 Stock Option and Incentive Plan): (i) Employees death, (ii) a termination by reason of a Disability, (iii) a termination by the Company with or without Cause, and (iv) a termination by Employee with or without Good Reason. Notwithstanding anything herein to the contrary, the payment (or commencement of a series of payments) hereunder of any nonqualified deferred compensation (within the meaning of Section 409A of the Code) upon a termination of employment shall be delayed until such time as Employee has also undergone a separation from service as defined in Treas. Reg. 1.409A-l(h), at which time such nonqualified deferred compensation (calculated as of the date of Employees termination of employment hereunder) shall be paid (or commence to be paid) to Employee on the schedule set forth in this Section 7 as if Employee had undergone such termination of employment (under the same circumstances) on the date of Employees ultimate separation from service.
(b) Termination Due to Death or Disability. Employees employment under this Agreement shall terminate automatically upon Employees death. The Company also may terminate Employees employment immediately upon the occurrence of a Disability, such termination to be effective upon Employees receipt of written notice of such termination. In the event of Employees termination as a result of Employees death or Disability, Employee or Employees estate or beneficiaries, as the case may be, shall be entitled only to the following: (i) the Accrued Obligations; (ii) if the Date of Termination occurs between January 1 and March 15 following the immediately preceding calendar year, then Employee shall be eligible to receive her earned Target Bonus, if any, and (iii) if the Date of Termination occurs after the Milestone Bonus has been earned, but before it has been paid, then Employee shall be eligible to receiver her earned Milestone Bonus, paid out in a manner consistent with the Companys bonus compensation practices then if effect. Employee shall have no further rights to any compensation or any other benefits under this Agreement.
(c) Termination by the Company with Cause.
(i) The Company may terminate Employees employment at any time with Cause, effective upon Employees receipt of written notice of such termination; provided, however, that with respect to any Cause termination relying on clause (i) or (ii) of the definition of Cause set forth in Section 1(d) hereof, to the extent that such act or acts or failure or failures to act are curable, Employee shall be given ten (10) days written notice by the Company of its intention to terminate him with Cause, such notice to state the act or acts or failure or failures to act that constitute the grounds on which the proposed termination with Cause is based, and such termination shall be effective at the expiration of such ten (10) day notice period unless Employee has fully cured such act or acts or failure or failures to act, to the Companys complete satisfaction, that give rise to Cause during such period.
(ii) In the event that the Company terminates Employees employment with Cause, Employee shall be entitled only to the Accrued Obligations. Following such termination of Employees employment with Cause, except as set forth in this Section 7(c)(ii), Employee shall have no further rights to any compensation or any other benefits under this Agreement. For the avoidance of doubt, Employees sole and exclusive remedy upon a termination of employment by the Company with Cause shall be receipt of the Accrued Obligations.
(d) Termination by the Company without Cause. The Company may terminate Employees employment at any time without Cause, effective upon Employees receipt of written notice of such termination. In the event that Employees employment is terminated by the Company without Cause (other than due to death or Disability) and provided that he fully executes an effective Release of Claims as described in Section 7(g), Employee shall be eligible for the following:
(i) The Accrued Obligations;
(ii) The Severance Benefits;
(iii) if the Date of Termination occurs between January 1 and March 15 following the immediately preceding calendar year, then Employee shall be eligible to receive her earned Target Bonus, if any,
(iv) if the Date of Termination occurs after the Milestone Bonus has been earned, but before it has been paid, then Employee shall be eligible to receive her earned Milestone Bonus, paid out in a manner consistent with the Companys bonus compensation practices then if effect; and
(v) Acceleration of the vesting of 100% of Employees then outstanding unvested equity awards, such that all unvested equity awards vest and become fully exercisable or non-forfeitable as of the Date of Termination; provided that such termination without Cause and the Dale of Termination occurs within eighteen (18) months after a Sale Event (the Accelerated Equity Benefit), in which case Employee
shall have ninety (90) days from the Date of Termination to exercise the vested equity awards,
Notwithstanding the foregoing, the Severance Benefits and the Accelerated Equity Benefit shall immediately terminate, and the Company shall have no further obligations to Employee with respect thereto, in the event that Employee breaches any provision of the Confidentiality Agreement or the Release of Claims (in addition to any clawback rights that the Company may possess, as set forth in the Equity Document). Any such termination of payment or benefits shall have no effect on the Release of Claims or any of Employees post-employment obligations to the Company. Following such termination of Employees employment by the Company without Cause, except as set forth in this Section 7(d), Employee shall have no further rights to any compensation or any other benefits under this Agreement. For the avoidance of doubt, Employees sole and exclusive remedy upon a termination of employment by the Company without Cause shall be receipt of the Severance Benefits (and, in the case of such a termination within eighteen (18) months after a Sale Event, the Accelerated Equity Benefit), subject to his execution of the Release of Claims, and the Accrued Obligations.
In addition, the Severance Benefit set forth in Section l(l)(i) shall be reduced dollar for dollar by any compensation Employee receives from another employer during the Severance Term. The Employee agrees to give prompt notice of any employment during the Severance term and promptly shall respond to any reasonable inquiries concerning her professional activities. If the Company makes overpayments of Severance Benefits, Employee promptly shall return any such overpayments to the Company and/or hereby authorizes deductions from future Severance Benefit amounts. The foregoing shall not create any obligation on the Employees part to seek re-employment after the Date of Termination,
(e) Termination by Employee with Good Reason. Employee may terminate his employment with Good Reason by providing the Company thirty (30) days written notice setting forth in reasonable specificity the event that constitutes Good Reason, which written notice, to be effective, must be provided to the Company within sixty (60) days of the occurrence of such event. During such thirty (30) day notice period, the Company shall have a cure right (if curable), and if not cured within such period, Employees termination will be effective upon the expiration of such cure period, and Employee shall be entitled to the same payments and benefits as provided in Section 7(d) hereof for a termination by the Company without Cause, subject to the same conditions on payment and benefits as described in Section 7(d) hereof. Following such termination of Employees employment by Employee with Good Reason, except as set forth in this Section 7(e), Employee shall have no further rights to any compensation or any other benefits under this Agreement. For the avoidance of doubt, Employees sole and exclusive remedy upon a termination of employment with Good Reason shall be receipt of the payments and benefits set forth in Sections 7(d)(i)-(iv) above (and, in the case of such a termination within eighteen (18) months after a Sale Event, the Accelerated Equity Benefit), subject to his execution of the Release of Claims.
(f) Termination by Employee without Good Reason. Employee may terminate his employment without Good Reason by providing the Company thirty (30) days written notice of such termination. In the event of a termination of employment by Employee under this Section 7(f), Employee shall be entitled only to the Accrued Obligations. In the event
of termination of Employees employment under this Section 7(f), the Company may, in its sole and absolute discretion, by written notice accelerate such date of termination without changing the characterization of such termination as a termination by Employee without Good Reason, Following such termination of Employees employment by Employee without Good Reason, except as set forth in this Section 7(f), Employee shall have no further rights to any compensation or any other benefits under this Agreement. For the avoidance of doubt, Employees sole and exclusive remedy upon a termination of employment by Employee without Good Reason shall be receipt of the Accrued Obligations.
(g) Release. Notwithstanding any provision herein to the contrary, the payment of the Severance Benefits pursuant to subsection (d) or (e) of this Section 7 (other than the Accrued Obligations) shall be conditioned upon Employees execution, delivery to the Company, and non-revocation of the Release of Claims (and the expiration of any revocation period contained in such Release of Claims) in accordance with the time limits set forth therein. If Employee fails to execute the Release of Claims in such a timely manner, or timely revokes Employees acceptance of such release following its execution, Employee shall not be entitled to any of the Severance Benefits. Further, to the extent that any of the Severance Benefits constitutes nonqualified deferred compensation for purposes of Section 409A of the Code, any payment of any amount or provision of any benefit otherwise scheduled to occur prior to the thirty-fifth (35th) day following the date of Employees termination of employment hereunder, but for the condition on executing the Release of Claims as set forth herein, shall not be made until the first regularly scheduled payroll date following such thirty-fifth (35th) day, after which any remaining Severance Benefits shall thereafter be provided to Employee according to the applicable schedule set forth herein.
Section 8. Confidentiality Agreement; Cooperation.
(a) Confidentiality Agreement. As a condition of Employees employment with the Company under the terms of this Agreement, Employee shall execute and deliver to the Company the Confidentiality Agreement, in the form attached hereto as Exhibit A. The parties hereto acknowledge and agree that this Agreement and the Confidentiality Agreement shall be considered separate contracts.
(b) Litigation and Regulatory Cooperation. During and after Employees employment, Employee shall cooperate fully with the Company in the defense or prosecution of any claims or actions now in existence or which may be brought in the future against or on behalf of the Company which relate to events or occurrences that transpired while the Company employed Employee, provided, that the Employee will not have an obligation tinder this paragraph with respect to any claim in which the Employee has filed directly against the Company or related persons or entities. The Employees full cooperation in connection with such claims or actions shall include, but not be limited lo, being available to meet with counsel to prepare for discovery or trial and to act as a witness on behalf of the Company at mutually convenient times. During and after Employees employment, Employee also shall cooperate fully with the Company in connection with any investigation or review of any federal, state or local regulatory authority as any such investigation or review relates to events or occurrences that transpired while Employee was employed by the Company, provided Employee will not have any obligation under this paragraph with respect to any claim in which Employee has filed
directly against the Company or related persons or entities. The Company shall reimburse Employee for any reasonable out-of-pocket expenses incurred in connection with Employees performance of obligations pursuant to this Section 8(b).
Section 9. Taxes.
The Company may withhold from any payments made under this Agreement all applicable taxes, including but not limited to income, employment, and social insurance taxes, as shall be required by law. Employee acknowledges and represents that the Company has not provided any tax advice to him in connection with this Agreement and that Employee has been advised by the Company to seek tax advice from Employees own tax advisors regarding this Agreement and payments that may be made to him pursuant to this Agreement, including specifically, the application of the provisions of Section 409A of the Code to such payments. The Company shall have no liability to Employee or to any other person if any of the provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A but that do not satisfy an exemption from, or the conditions of, that section.
Section 10. Additional Section 409A Provisions.
Notwithstanding any provision in this Agreement to the contrary:
(a) If at the time of the Employees separation from service within the meaning of Section 409A of the Code, the Company determines that the Employee is a specified employee within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Employee becomes entitled to under this Agreement on account of the Employees separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (i) six months and one day after the Employees separation from service, or (ii) the Employees death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) Each payment in a series of payments hereunder shall be deemed to be a separate payment for purposes of Section 409A of the Code. Neither the Company nor Employee shall have the right to accelerate or defer the delivery of any such payments except to the extent specifically permitted or required by Section 409A.
(c) To the extent that any right to reimbursement of expenses or payment of any benefit in-kind under this Agreement constitutes nonqualified deferred compensation (within the meaning of Section 409A of the Code), (i) any such expense reimbursement shall be made by the Company no later than the last day of the taxable year following the taxable year in which such expense was incurred by Employee, (ii) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, and (iii) the amount of expenses eligible for reimbursement or in-kind benefits provided during any taxable year shall not affect
the expenses eligible for reimbursement or in-kind benefits to be provided in any other taxable year; provided, that the foregoing clause shall not be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect.
(d) To the extent that any payment or benefit described in this Agreement constitutes non-qualified deferred compensation under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Employees termination of employment, then such payments or benefits shall be payable only upon the Employees separation from service. The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(e) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. While the payments and benefits provided hereunder are intended to be structured in a manner to avoid the implication of any penalty taxes under Section 409A of the Code, in no event whatsoever shall the Company or any of its affiliates be liable for any additional tax, interest, or penalties that may be imposed on Employee as a result of Section 409A of the Code or any damages for failing to comply with Section 409A of the Code (other than for withholding obligations or other obligations applicable to employers, if any, under Section 409A of the Code).
Section 11. Successors and Assigns.
(a) The Company. This Agreement shall inure to the benefit of the Company and its respective successors and assigns. This Agreement may be assigned by the Company without Employees prior consent.
(b) Employee. Employees rights and obligations under this Agreement shall not be transferable by Employee by assignment or otherwise, without the prior written consent of the Company; provided, however, that if Employee shall die, all amounts then payable to Employee hereunder shall be paid in accordance with the terms of this Agreement to Employees devisee, legatee, or other designee, or if there be no such designee, to Employees estate.
Section 12. Waiver and Amendments.
Any waiver, alteration, amendment, or modification of any of the terms of this Agreement shall be valid only if made in writing and signed by each of the parties hereto; provided, however, that any such waiver, alteration, amendment, or modification must be consented to on the Companys behalf by the Board. No waiver by either of the parties hereto of their rights hereunder shall be deemed to constitute a waiver with respect to any subsequent
occurrences or transactions hereunder unless such waiver specifically states that it is to be construed as a continuing waiver.
Section 13. Severability.
If any covenants or such other provisions of this Agreement are found to be invalid or unenforceable by a final determination of a court of competent jurisdiction, (a) the remaining terms and provisions hereof shall be unimpaired, and (b) the invalid or unenforceable term or provision hereof shall be deemed replaced by a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision hereof.
Section 14. Governing Law and Jurisdiction.
This is a Massachusetts contract and shall be construed under and be governed in all respects by the laws of the Commonwealth of Massachusetts without giving effect to the conflict of laws principles of such state. With respect to any disputes concerning federal law, such disputes shall be determined in accordance with the law as it would be interpreted and applied by the United States Court of Appeals for the First Circuit. To the extent that any court action is initiated to enforce this Agreement, the parties hereby consent to the jurisdiction of the state and federal courts of the Commonwealth of Massachusetts. Accordingly, with respect to any such court action, Employee (a) submits to the personal jurisdiction of such courts; (b) consents to service of process; and (c) waives any other requirement (whether imposed by statute, rule of court, or otherwise) with respect to personal jurisdiction or service of process.
Section 15. Notices.
(a) Place of Delivery. Every notice or other communication relating to this Agreement shall be in writing, and shall be mailed to or delivered to the party for whom or which it is intended at such address as may from time to time be designated by it in a notice mailed or delivered to the other party as herein provided; provided, that unless and until some other address be so designated, all notices and communications by Employee to the Company shall be mailed or delivered to the Company at its principal executive office, and all notices and communications by the Company to Employee may be given to Employee personally or may be mailed to Employee at Employees last known address, as reflected in the Companys records.
(b) Date of Delivery. Any notice so addressed shall be deemed to be given or received (i) if delivered by hand, on the date of such delivery, (ii) if mailed by courier or by overnight mail, on the first business day following the dale of such mailing, and (iii) if mailed by registered or certified mail, on the third business day after the date of such mailing.
Section 16. Section Headings.
The headings of the sections and subsections of this Agreement are inserted for convenience only and shall not be deemed to constitute a part thereof or affect the meaning or interpretation of this Agreement or of any term or provision hereof.
Section 17. Entire Agreement.
This Agreement, together with the Confidentiality Agreement attached hereto and the Equity Documents, constitutes the entire understanding and agreement of the parties hereto regarding the employment of Employee. This Agreement supersedes all prior negotiations, discussions, correspondence, communications, understandings, and agreements between the parties (including any offer letter given to Employee) relating to the subject matter of this Agreement; provided however, that Employee remains subject to those conditions set forth in the offer letter regarding completion of an employment application and background and/or reference checks to the Companys satisfaction, in addition to executing those forms necessary for the processing of such background check.
Section 18. Survival of Operative Sections.
Upon any termination of Employees employment, the provisions of Section 7 through Section 19 of this Agreement (together with any related definitions set forth in Section 1 hereof) shall survive to the extent necessary to give effect to the provisions thereof.
Section 19. Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument. The execution of this Agreement may be by actual or facsimile signature.
Section 20. Gender Neutral.
Wherever used herein, a pronoun in the masculine gender shall be considered as including the feminine gender unless the context clearly indicates otherwise.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above written.
CONFIDENTIALITY, ASSIGNMENT AND NONCOMPETITION AGREEMENT
AEGERION PHARMACEUTICALS, INC.
Employee Confidentiality, Assignment and Noncompetition Agreement
In consideration and as a condition of my employment or continued employment by Aegerion Pharmaceuticals, Inc. (the Company), I agree as follows:
1. Employee Acknowledgements. I acknowledge that I will be provided, and/or have been provided, with the Companys trade secrets and/or valuable confidential business information, and have developed and/or will develop substantial relationships with prospective and existing customers and clients of the Company, and, as a result, shall benefit from the Companys good will. I also acknowledge that the Company has invested substantial resources in the development of its trade secrets, confidential business information, client relationships and good will and in recruiting, hiring and training its professionals and staff. I further acknowledge that I have received and/or will receive substantial training from the Company. I hereby acknowledge and agree that the Company has a legitimate interest in protecting its substantial investment in its development of trade secrets, confidential information, good will and a highly trained staff and that the covenants to which I agree to be bound herein are necessary to protect such legitimate interests.
2. Proprietary Information. I agree that all information, whether or not in writing, concerning the Companys business, technology, business relationships or financial affairs which the Company has not released to the general public (collectively, Proprietary Information) is and will be the exclusive property of the Company. By way of illustration, Proprietary Information may include information or material which has not been made generally available to the public, such as: (a) corporate information, including plans, strategies, methods, policies, resolutions, negotiations or litigation; (b) marketing information, including strategies, methods, customer identities or other information about customers, prospect identities or other information about prospects, or market analyses or projections; (c) financial information, including cost and performance data, debt arrangements, equity structure, investors and holdings, purchasing and sales data and price lists; and (d) operational and technological information, including plans, specifications, manuals, forms, templates, software, designs, methods, procedures, formulas, discoveries, inventions, improvements, concepts and ideas; and (e) personnel information, including personnel lists, reporting or organizational structure, resumes, personnel data, compensation structure, performance evaluations and termination arrangements or documents. Proprietary Information also includes information received in confidence by the Company from its customers or suppliers or other third parties.
3. Recognition of Companys Rights. I will not, at any time, without the Companys prior written permission, either during or after my employment, disclose any Proprietary Information to anyone outside of the Company, or use or permit to be used any Proprietary Information for any purpose other than the performance of my duties as an employee of the Company. I will cooperate with the Company and use my best efforts to prevent the unauthorized disclosure of all Proprietary Information. I will deliver to the Company all copies of Proprietary Information in my possession or control upon the earlier of a request by the Company or termination of my employment,
4. Rights of Others. I understand that the Company is now and may hereafter be subject to non-disclosure or confidentiality agreements with third persons which require the Company to protect or refrain from use of proprietary information. I agree to be bound by the terms of such agreements in the event I have access to such proprietary information.
5. Commitment to Company; Avoidance of Conflict of Interest. While an employee of the Company, I will devote my full-time efforts to the Companys business and I will not engage in any other business activity that conflicts with my duties to the Company. I will advise the Chief Executive Officer of the Company at such time as any activity of either the Company or another business presents me with a conflict of interest or the appearance of a conflict of interest as an employee of the Company, I will take whatever action is requested of me by the Company to resolve any conflict or appearance of conflict which it finds to exist.
6. Developments. I will make full and prompt disclosure to the Company of all inventions, discoveries, designs, developments, methods, modifications, improvements, processes, algorithms, databases, computer programs, formulae, techniques, trade secrets, graphics or images, and audio or visual works and other works of authorship, whether or not patentable or copyrightable, that are created, made, conceived or reduced to practice by me (alone or jointly with others) or under my direction during the period of my employment (collectively, the Developments), I acknowledge that all work performed by me is on a work for hire basis, and I hereby do assign and transfer and, to the extent any such assignment cannot be made at present, will assign and transfer, to the Company and its successors and assigns all my right, title and interest in all Developments that: (a) relate to the business of the Company or any customer of the Company or any of the products or services being researched, developed, manufactured or sold by the Company or which may be used with such products or services; or (b) result from tasks assigned to me by the Company; or (c) result and/or are developed during or after my employment from the use of premises or personal properly (whether tangible or intangible) owned, leased or contracted for by the Company (collectively, Company-Related Developments), and all related patents, patent applications, trademarks and trademark applications, copyrights and copyright applications, and other intellectual property rights in all countries and territories worldwide and under any international conventions (Intellectual Property Rights).
To preclude any possible uncertainty, I have set forth on Exhibit A attached hereto a complete list of Developments that I have, alone or jointly with others, conceived, developed or reduced to practice prior to the commencement of my employment with the Company that I consider to be my property or the property of third parties and that I wish to have excluded from the scope of this Agreement (Prior Inventions). If disclosure of any such Prior Invention would cause me to violate any prior confidentiality agreement, I understand that I am not to list such Prior Inventions in Exhibit A but am only to disclose a cursory name for each such invention, a listing of the party(ies) to whom it belongs and the fact that full disclosure as to such inventions has not been made for that reason. I have also listed on Exhibit A all patents and patent applications in which I am named as an inventor, other than those which have been assigned to the Company (Other Patent Rights). If no such disclosure is attached, I represent that there are no Prior Inventions or Other Patent Rights. If, in the course of my employment with the Company, I incorporate a Prior Invention into a Company product, process or machine or other work done for the Company, I hereby grant to the Company a nonexclusive, royalty-free, paid-up,
irrevocable, worldwide license (with the full right to sublicense) to make, have made, modify, use, sell, offer for sale and import such Prior Invention, Notwithstanding the foregoing, I will not incorporate, or permit to be incorporated, Prior Inventions in any Company-Related Development without the Companys prior written consent.
This Agreement does not obligate me to assign to the Company any Development which, in the sole judgment of the Company, reasonably exercised, is developed entirely on my own time and does not relate to the business efforts or research and development efforts in which, during the period of my employment, the Company actually is engaged or reasonably would be engaged, and does not result from the use of premises or equipment owned or leased by the Company. However, I will also promptly disclose to the Company any such Developments for the purpose of determining whether they qualify for such exclusion. I understand that to the extent this Agreement is required to be construed in accordance with the laws of any state which precludes a requirement in an employee agreement to assign certain classes of inventions made by an employee, this paragraph 5 will be interpreted not to apply to any invention which a court rules and/or the Company agrees falls within such classes. I also hereby waive all claims to any moral rights or other special rights which I may have or accrue in any Company-Related Developments or Intellectual Property Rights.
7. Documents and Other Materials. I will keep and maintain adequate and current records of: (a) all Proprietary Information and Company-Related Developments developed by me during my employment; and (b) all documentation regarding any Intellectual Property Rights, which relate to such Proprietary Information and Company-Related Developments. Such records will be available to and remain the sole property of the Company at all times.
All files, letters, notes, memoranda, reports, records, data, sketches, drawings, notebooks, layouts, charts, quotations and proposals, specification sheets, or other written, photographic or other tangible material containing Proprietary Information, whether created by me or others, which come into my custody or possession, are the exclusive property of the Company to be used by me only in the performance of my duties for the Company. Any property situated on the Companys premises, owned or purchased by the Company, disseminated by the Company, and/or used or created by me for business purposes in the course of my duties for the Company, including without limitation computers, email accounts, cell phone records and text messages, disks and other storage media, filing cabinets or other work areas, is Company property and is subject to inspection by the Company at any time with or without notice. In the event of the termination of my employment for any reason, I will deliver to the Company all Company property, including, without limitation, all Proprietary Information, all documents related to Company-Related Developments, all computers, keys, passwords, cell phones, entry cards, files, letters, notes, memoranda, reports, records, data, sketches, drawings, notebooks, layouts, charts, quotations and proposals, specification sheets, or other written, photographic or other tangible material, and will not take or keep in my possession any Company property or any copies (electronic or hard-copy) of such property.
8. Enforcement of Intellectual Property Rights. I will cooperate fully with the Company, both during and after my employment with the Company, with respect to the procurement, maintenance and enforcement of Intellectual Property Rights in Company-Related Developments. I will sign, both during and after the term of this Agreement, all papers, including without limitation copyright applications, patent applications, declarations, oaths, assignments of priority rights, and powers of attorney, which the Company may deem necessary or desirable in order to protect its rights and interests in any Company-Related Development. If the Company is unable, after reasonable effort, to secure my signature on any such papers, I hereby irrevocably designate and appoint each officer of the Company as my agent and attorney-in-fact to execute any such papers on my behalf, and to take any and all actions as the Company may deem necessary or desirable in order to protect its rights and interests in any Company-Related Development.
9. Non-Competition and Non-Solicitation. In order to protect the Companys Proprietary Information and good will, during my employment and for a period of twelve (12) months following the termination of my employment for any reason (the Restricted Period), I will not directly or indirectly, whether as owner, partner, shareholder, director, manager, consultant, agent, employee, co-venturer or otherwise, engage, participate or invest in any business activity anywhere in the world that develops, manufactures or markets any products, or performs any services, that are competitive (directly or indirectly) with the products or services of the Company, or products or services that the Company or its affiliates, has under development or that are the subject of active planning at any time during my employment; provided that this shall not prohibit any possible investment in publicly traded stock of a company representing less than one percent of the stock of such company. In addition, during the Restricted Period, I will not, directly or indirectly, in any manner, other than for the benefit of the Company, (a) call upon, solicit, divert, take away, accept or conduct any business from or with any of the customers or prospective customers of the Company or any of its suppliers, and/or (b) solicit, entice, or attempt to persuade any other employee or consultant of the Company to leave the Company for any reason. I acknowledge and agree that if I violate any of the provisions of this paragraph 8, the running of the Restricted Period will be extended by the time during which I engage in such violation(s).
10. Government Contracts. I acknowledge that the Company may have from time to time agreements with other persons or with the United States Government or its agencies which impose obligations or restrictions on the Company regarding inventions made during the course of work under such agreements or regarding the confidential nature of such work, I agree to comply with any such obligations or restrictions upon the direction of the Company. In addition to the rights assigned under paragraph 6, I also assign to the Company (or any of its nominees) all rights which I have or acquired in any Developments, full title to which is required to be in the United States under any contract between the Company and the United States or any of its agencies.
11. Prior Agreements. I hereby represent that, except as I have fully disclosed previously in writing to the Company, I am not bound by the terms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or proprietary information in the course of my employment with the Company or to refrain from competing, directly or indirectly, with the business of such previous employer or
any other party. I further represent that my performance of all the terms of this Agreement as an employee of the Company does not and will not breach any agreement to keep in confidence proprietary information, knowledge or data acquired by me in confidence or in trust prior to my employment with the Company. I will not disclose to the Company or induce the Company to use any confidential or proprietary information or material belonging to any previous employer or others.
12. Remedies Upon Breach.
(a) Equitable Relief. I understand that the restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the Company and I consider them to be reasonable for such purpose. Any breach of this Agreement is likely to cause the Company substantial and irrevocable damage and therefore, in the event of such breach, the Company, in addition to such other remedies which may be available, will be entitled to seek specific performance and other injunctive relief, without the posting of a bond.
(b) Indemnification. If I violate this Agreement, in addition to all other remedies available to the Company at law, in equity, and under contract, I agree that I am obligated to pay all the Companys costs of enforcement of this Agreement, including attorneys fees and expenses. I also agree that I will indemnify and/or hold the Company harmless from and against any and all liabilities, losses, damages, claims or demands whatsoever (including expenses, court costs and reasonable attorneys fees) incurred by the Company (i) as a result of or by reason of the Company having to defend any claim arising from my use of proprietary or trade secret information of a prior employer or my breach of a restrictive covenant with any prior employer, provided, that my obligations shall not arise unless and until a final judgment has been rendered in favor of such prior employer and (ii) from any damages resulting from a final judgment of such claims. This indemnification shall include, but not be limited to, claims for infringement of patents, trademarks or copyrights, misappropriation of trade secrets or confidential information, and/or breach of any restrictive covenants, and is without prejudice to any of Companys other rights or remedies at law.
13. Use of Voice, Image and Likeness. During the period of my employment, I give the Company permission to use any and all of my voice, image and likeness, with or without using my name, in connection with the products and/or services of the Company, for the purposes of advertising and promoting such products and/or services and/or the Company, and/or for other purposes deemed appropriate by the Company in its reasonable discretion, except to the extent expressly prohibited by law.
14. Publications and Public Statements. I will obtain the Companys written approval before publishing or submitting for publication any material that relates to my work at the Company and/or incorporates any Proprietary Information.
15. No Employment Obligation. I understand that this Agreement does not create an obligation on the Company or any other person to continue my employment. I acknowledge that, unless otherwise agreed in a formal written employment agreement signed on behalf of the Company by an authorized officer, my employment with the Company is at will and therefore may be terminated by the Company or me at any time and for any reason, with or without cause.
16. Survival and Assignment by the Company. I understand that my obligations under this Agreement will continue in accordance with its express terms regardless of any changes in my title, position, duties, salary, compensation or benefits or other terms and conditions of employment. I further understand that my obligations under this Agreement will continue following the termination of my employment regardless of the manner of such termination and will be binding upon my heirs, executors and administrators. The Company will have the right to assign this Agreement to its affiliates, successors and assigns. I expressly consent to be bound by the provisions of this Agreement for the benefit of the Company or any parent, subsidiary or affiliate to whose employ I may be transferred without the necessity that this Agreement be resigned at the time of such transfer,
17. Updating Information to the Company; Disclosure to Future Employers. For twelve (12) months following termination of my employment, I will notify the Company of any change in my address and of each subsequent employment or business activity, including the name and address of my employer or other post-Company employment plans and the nature of my activities.
18. Reimbursement. I hereby authorize the Company at any time during or after the term of my employment to withhold from any amounts otherwise owed to me (including, but not limited to, salary, bonus, severance, commissions and expense reimbursements) to the fullest extent permitted by applicable law: any and all amounts due to the Company from me, including, but not limited to, cash advances, draws, travel advances, overpayments made by the Company to me, amounts received by me due to the Companys error, unpaid personal credit card or phone charges or any other debt I owe to the Company for any reason, including amounts with respect to misuse or misappropriation of Company assets or breach of this Agreement.
19. Severability. In case any provisions (or portions thereof) contained in this Agreement shall, for any reason, be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein, If, moreover, any one or more of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to duration, geographical scope, activity or subject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the applicable law as it shall then appear.
20. Interpretation. This Agreement will be deemed to be made and entered into in the Commonwealth of Massachusetts, and will in all respects be interpreted, enforced and governed under the laws of the Commonwealth of Massachusetts. I hereby agree to consent to personal jurisdiction of the state and federal courts situated within Suffolk County, Massachusetts for purposes of enforcing this Agreement, and waive any objection that I might have to personal jurisdiction or venue in those courts.
I UNDERSTAND THAT THIS AGREEMENT AFFECTS IMPORTANT RIGHTS. BY SIGNING BELOW, I CERTIFY THAT I HAVE READ IT CAREFULLY AND AM SATISFIED THAT I UNDERSTAND IT COMPLETELY.
IN WITNESS WHEREOF, the undersigned has executed this agreement as a sealed instrument as of the date set forth below.
Type or print name: Martha A. Carter
Date: 3 February 2011
The following is a complete list of all inventions or improvements that have been made or conceived or first reduced to practice by me alone or jointly with others prior to my engagement by the Company:
The following is a list of all patents and patent applications in which I have been named as an inventor: