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EXHIBIT 10.37
AGREEMENT FOR PART-TIME EMPLOYMENT
AND MUTUAL RELEASE
This Agreement for Part-Time Employment and Mutual Release is made and
entered into by and between Sonus Pharmaceuticals, Inc., a Delaware corporation
(the "Company"), and Steven C. Quay, M.D., Ph.D., an individual ("Dr. Quay"), as
of this 25th day of August, 1999.
RECITALS
WHEREAS, Dr. Quay was the founder of the Company and served as its Chief
Executive Officer since its inception in 1991; and
WHEREAS, Dr. Quay is the inventor of certain inventions within the
Company's intellectual property estate; and
WHEREAS, Dr. Quay is holder of a substantial amount of the Company's
common stock; and
WHEREAS, Dr. Quay and the Company were party to an Employment Agreement
dated February 11, 1999 (the Employment Agreement"), which, except as relates to
its paragraphs 6, 7 and 9 as provided herein, has been terminated and is no
longer in force and effect; and
WHEREAS, Dr. Quay and the Company desire to resolve amicably all
disputes and controversies between them and enter a Mutual Release; and
WHEREAS, the Company desires Dr. Quay to provide services for it as a
part-time employee; and
WHEREAS, Dr. Quay desires to provide services to the Company as a
part-time employee;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, Dr. Quay and the Company, intending
to be legally bound, hereby agree as follows:
1. Part-Time Employment. Dr. Quay will, as a part-time employee, provide
services to the Company or to others such as Nycomed Imaging A/S as reasonably
directed by the Company consistent with the terms of this Agreement, for a
period of thirty-six (36) months on such projects which are consistent with Dr.
Quay's expertise and which are reasonably requested by the Company from time to
time, pertaining to the following: (A) obtaining issuance of suitable patents on
its currently pending patent applications, as well as subsequent continuation or
continuation-in-part applications of the Company, and any applications that may
be filed by or for the Company on recent discoveries relating to * (herein,
collectively, the "Sonus Patents"), including providing assistance in connection
with proceedings in the U.S. Patent and Trademark Office, (B) asserting rights
*Confidential portions omitted and filed separately with the Commission.
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against potential infringers of the Sonus Patents, including providing
cooperation and assistance in proceedings and litigation relating thereto, (C)
participating and providing assistance in the design and development of research
projects and associated intellectual property strategies relating to the Sonus
Patents, and (D) participating and providing assistance in strategies relating
to licensing and maximizing the economic value of the Company's intellectual
property estate as it currently exists. Dr. Quay's activities may address other
matters as the parties may mutually agree.
(A) Through December 31, 1999, Dr. Quay will be available to provide
these services for up to 144 hours per calendar quarter (or a pro rata amount
for any partial calendar quarter) as requested by the Company consistent with
"C" below. During the remainder of the part-time employment, Dr. Quay will be
available for up to 80 hours per calendar quarter (or a pro rata amount for any
partial calendar quarter) as requested by the Company consistent with "C" below.
(B) In consideration for providing these services, Dr. Quay will receive
salary/wages as follows:
(i) Through December 31, 1999, Dr. Quay will receive
his salary in effect under the Employment Agreement on and prior
to July 7, 1999, payable on the normal Company pay days (and the
Company shall pay Dr. Quay on the first pay day after execution
of this Agreement an amount equal to any unpaid salary for any
portion of 1999 to the date of this Agreement) so that, by the
end of 1999, or by the first regular Company pay day thereafter,
Dr. Quay shall have received an amount of salary paid heretofore
to him in the first portion of 1999 and to be paid to him
hereunder for the second portion of 1999 equal to what his
salary would have been for all of 1999 under the Employment
Agreement.
(ii) For the remainder of the part-time employment, Dr.
Quay shall receive wages in the amount of $250 per hour for
services requested by the Company, with a minimum service period
of one hour per inquiry (i.e. for each request by the Company
and each additional inquiry by the Company requiring separate
devotion of time by Dr. Quay).
(C) The Company and Dr. Quay shall work together in scheduling his
services as a part-time employee at times mutually convenient to Dr. Quay and
the Company and which will accommodate Dr. Quay's other commitments and
activities. Dr. Quay will generally provide these services from his home or
other location of his choice during regular business hours. Subject to such
accommodation, the Company may request, from time to time, that Dr. Quay provide
the services at other locations or travel to other locations; for example, in
connection with negotiations or proceedings with third parties. In connection
with the rendering of any services as a part-time employee, travel time shall be
considered employment time and Dr. Quay will be reimbursed for all of his
reasonable travel, lodging, meals and other expenses upon submission of
reasonable documentation thereof and subject to such reasonable limitations on
first class travel or accommodations as the Company may impose on all of its
executive officers and directors and
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communicate in writing to Dr. Quay.
2. Stock Options. The Company confirms that during Dr. Quay's part-time
employment hereunder those options under Dr. Quay's existing stock option
agreements (which shall remain in full force and effect) will continue to vest
and will remain exercisable for the period of such part time employment and for
the period thereafter provided in such option agreements. Dr. Quay shall not be
deemed a full-time employee under the Change in Control Agreement dated February
11, 1999 and, accordingly, that agreement shall be deemed to have terminated as
of July 7, 1999.
3. Benefits. Dr. Quay will retain the employee welfare benefits under
the Company's health, dental or other welfare benefit plans (or the equivalent
thereof), through December 31, 1999. Dr. Quay will be deemed to satisfy a 24
hour or more per week requirement under such plans. After December 31, 1999, Dr.
Quay and his family may continue such coverage at his/their own expense if and
for as long as such coverage may be permitted under COBRA.
4. Dr. Quay's Shares of Common Stock of Sonus.
(A) Dr. Quay confirms that for so long as he remains a Director of the
Company, he shall be subject to the Company's uniform blackout policies
regarding sales of shares by insiders to the extent they are applicable to all
Directors. The Company represents: (i) that those policies, as currently in
effect and applicable to all directors, are set forth in Exhibit A hereto; (ii)
that the Company will provide Dr. Quay promptly after the date hereof with
revised versions of Exhibit A which shall set forth such policies applicable to
all Directors with any changes and amendments as may be made from time to time
and any exceptions as may be made for any other Directors; (iii) that such
policies shall be enforced uniformly as to all Directors. In addition, to the
extent that Dr. Quay is aware of or possesses material inside information as a
result of his directorship or part-time employment with the Company, he shall
comply with all applicable securities laws.
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(B) In the event Dr. Quay desires to sell any of his shares of common
stock of the Company, including without limitation, shares of common stock
issuable upon exercise of options, the Company and Dr. Quay agree to mutually
consult and cooperate in effecting any such resales of shares by Dr. Quay with a
view to minimizing any material adverse impact on the market for the shares to
the extent practicable, provided that the Company shall not be entitled to block
or prevent sales Dr. Quay intends to make consistent with paragraph (A) above.
In this regard, the Company agrees to use its reasonable efforts to assist Dr.
Quay in any such sales, including without limitation, facilitating off-market
block trades with the assistance of the Company's market makers. In addition,
the parties agree to mutually consult on a continual basis as to means and
methods by which sales of shares of common stock may be most readily made
consistent with obtaining the best price and not materially adversely impacting
the market price and otherwise render reasonable assistance to Dr. Quay in
connection therewith.
(C) The Company confirms the existing Fourth Amended and Restated
Registration Rights Agreement dated 1999 ("Registration Rights Agreement") as it
applies to shares of common stock held by Dr. Quay. In addition, the Company
confirms the effectiveness of one or more S-8 registration statements relating
to the shares of common stock subject to options held by Dr. Quay; it being
understood, however, that such S-8 registration statements may not be available
for resale of shares by "affiliates" as provided under the Securities Act of
1933, as amended, and regulations thereunder (collectively, the "Act"). The
Company agrees to use its commercially reasonable best efforts to maintain the
effectiveness of such registration statements. In the event that Dr. Quay wishes
to sell shares of the Company in a manner not available to an "Affiliate" as
defined under the Act, he will so inform the Company. In such event, if the
Company, after consultation with counsel, advises Dr. Quay in writing that it
believes in good faith that "Affiliate" status under the Act quite possibly
continues to exist as to Dr. Quay, Dr. Quay may provide to the Company an
opinion of counsel (which may be from Blanc Williams Johnston & Kronstadt, LLP,
or other counsel reasonably acceptable to the Company), stating that Dr. Quay is
not, at that time, an "Affiliate" under the Act, and the Company will act
accordingly. The Company shall pay fifty percent (50%) of the reasonable costs
actually incurred in obtaining such legal opinion. The Company agrees not to
assert that Dr. Quay is an "Affiliate" of the Company under the Act solely
because of his part-time employment with the Company.
(D) In the event that the Company proposes to effect any private
placement of shares in a capital raising transaction, during the term of this
Agreement for Part-Time Employment, the Company shall use its reasonable efforts
to include a portion of the shares of common stock held by Dr. Quay to the
extent practical; provided, however, that the Company shall have no obligation
to include such shares held by Dr. Quay to the extent (i) the Company certifies
in writing to Dr. Quay that such inclusion would have a materially adverse
impact on the Company's working capital requirements or jeopardize the Company's
satisfaction of listing requirements under the Nasdaq National Market System or
(ii) the placement agent retained by the Company in connection with the private
placement certifies in writing to Dr. Quay that such inclusion would otherwise
jeopardize the completion of the private placement.
5. Publicity. The parties hereby agree not to disparage each other. In
addition, neither party shall make any public announcement relating to the
transactions provided for herein
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or the change of Dr. Quay's relationship with the Company from full-time to
part-time employment without the prior written consent of the other party, which
shall not be unreasonably withheld; provided, however, that the Company may,
after affording Dr. Quay 48 hours after his receipt thereof to review and
comment, make such public disclosures concerning these matters as may be
required under the applicable securities laws, including without limitation, the
filing of this Agreement as an exhibit to the Company's filings under the Act if
it first provides Dr. Quay with written advice from its securities counsel that
such counsel, after review, believes such filing is required.
6. Covenants Against Actions Damaging the Company; Noncompetition. Dr.
Quay hereby confirms that the covenants set forth in paragraphs 6, 7 and 9 of
the Employment Agreement remain in full force and effect during the 36 month
term of part-time employment and for the periods thereafter as specifically
provided in such sections, except that Dr. Quay shall not be required to
disclose to the Company any inventions which he develops or discovers during the
term of this Agreement for Part-Time Employment or thereafter. In addition, for
the purposes of paragraph 9, the business of the Company shall mean ultrasound
contrast agents and Vitamin E emulsion technology for drug delivery (hereinafter
referred to as the "Business"); and Dr. Quay shall not be deemed to be in
violation of the paragraph 9 non-compete merely because of entering into a
business arrangement, including a licensing, partnership, employment,
consulting, agency or similar arrangement, with an established entity whose
business does not primarily consist of but includes activities competitive with
the Business, provided that Dr. Quay's activities with respect to such entity do
not directly or indirectly relate to the Business. Dr. Quay confirms that the
provisions of paragraph 9 of the Employment Agreement shall preclude any
activities by Dr. Quay that may assist any third party in challenging the
patents or intellectual property estate of the Company, provided however, that
truthful testimony given by Dr. Quay pursuant to subpoena, court order or other
compulsory legal process shall not violate the provisions of paragraph 9 of the
Employment Agreement and, provided further, that nothing herein is intended to
prevent Dr. Quay from providing truthful testimony pursuant to such process. Dr.
Quay further specifically agrees not to assist or otherwise take any actions on
behalf of any third party that are adverse to the Company with respect to the
Sonus Patents or that are adverse, with respect to the Sonus Patents, to the
Company's current or future licensees and/or licensors, in any litigation or
administrative proceeding relating to those Patents. The Company acknowledges
that it has been provided with a copy of U.S. Patent No. 5,798,266, entitled,
"Methods and Kits for Obtaining and Assaying Mammary Fluid Samples from Breast
Diseases, Including Cancer," Inventors: Quay, SC, Quay DL; issued August 25,
1998 (assigned to K-QUAY Enterprises, LLC, a Delaware LLC formed by Dr. Quay)
and has asserted no interest therein.
7. Mutual Releases. Except for the obligations arising under this
Agreement (including the provisions of paragraphs 6, 7 (as amended above) and 9
(as amended above) of the Employment Agreement and the Registration Rights
Agreement and the stock option agreements described in Section 2 above) and the
indemnity agreement between Dr. Quay and the Company, (and any indemnity
provisions in the Company's charter documents) Dr. Quay, for himself and for his
heirs, executors, legal successors and assigns, hereby releases and absolutely
and forever discharges the Company and its affiliates, and each of their
respective past and present officers, directors, shareholders, employees,
insurers, attorneys and agents, and each of them, and each of
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their respective legal predecessors, successors and assigns ("Sonus Releasees")
of and from any and all claims, demands, promises, contracts, damages, debts,
liabilities, accounts, costs, actions and causes of action of every kind and
nature, whether now known or unknown, accrued or unaccrued, suspected or
unsuspected, matured or unmatured, liquidated or unliquidated, contingent or
noncontingent, which he may now have, has had, or may hereafter have against
Sonus Releasees arising out of any matter or event occurring prior to the date
of this Agreement, including but not limited to, claims arising out of or with
respect to the Employment Agreement, his employment by the Company and/or other
Sonus Releasees, and any purported termination of such employment thereafter,
including (a) any discrimination claim, or (b) any claim, known or unknown, for
wrongful termination, or (c) any other claim, whether in tort, contract or
otherwise; and the Company and its affiliates, for themselves and their
respective legal predecessors, successors and assigns, hereby release and
absolutely and forever discharge Dr. Quay and his heirs, legal successors,
assigns, of and from any and all claims, demands, damages, promises, contracts,
debts, liabilities, accounts, costs, actions and causes of action of every kind
and nature, whether now known or unknown, accrued or unaccrued, suspected or
unsuspected, matured or unmatured, liquidated or unliquidated, contingent or
noncontingent, which they may now have, have had, or may hereafter have against
Dr. Quay and his heirs, legal successors, assigns, insurers, attorneys, and/or
agents, and each of them and each of their respective legal predecessors,
successors and assigns arising out of any matter or event occurring prior to the
date of this Agreement including but not limited to, all claims whether in tort,
contract or otherwise. The Company represents that as of the date hereof, it
does not have knowledge of any claim or facts giving rise thereto, against Dr.
Quay under the Sections 6, 7 or 9 of the Employment Agreement.
Dr. Quay and the Company hereby agree that they will not make, assert or
maintain against any entity or person that has been released in this Agreement,
any claim, demand, action, suit or proceeding thereof, arising out of or in
connection with the matters herein so released. Furthermore, Dr. Quay and the
Company hereby represent and warrant that they have not heretofore assigned or
transferred or purported to assign or transfer to any person, firm, or other
entity, any claim, demand, debt, liability, account, cost, action or cause of
action hereinabove released.
The parties hereto acknowledge that statutory and/or case law in some
states limits the effectiveness of releases of unknown claims. Nevertheless,
they have bargained for such a broad and effective release and hereby waive the
benefits of such statutory and/or case law, intending that the above releases
have broad effect consistent with their wording.
8. Miscellaneous Provisions.
(A) Notices. Any notice given hereunder to the Company
or to Dr. Quay shall be deemed sufficiently given if mailed by
registered or certified mail, return receipt requested, postage
prepaid, or sent by overnight delivery service, or by facsimile
(with machine confirmation and hard copy following by mail) as
follows:
If to the Company:
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Sonus Pharmaceuticals, Inc.
22026 Twentieth Avenue, S.E.
Bothell, WA 98021
Attention: President and Chief Executive Officer
Facsimile number: 425 489-3936
If to Steven C. Quay, M.D., Ph.D.:
23632 Highway 99, Suite F-454
Edmonds, WA 98026
Facsimile number: [603] 816-9696
or to such other address or fax number as shall have been
provided by the party to whom such notice is directed by notice
to the other party hereto in accordance with this section.
Except as otherwise provided herein, such notice shall be deemed
effective when delivered in person (including by express
courier), when sent by facsimile (with machine confirmation and
with hard copy following by mail) or three days after being
mailed.
(B) Governing Law. This Agreement is made under and
shall be governed by and construed in accordance with the laws
of the State of Washington, applicable to agreements made
between residents of that state and providing for performance
there.
(C) Assignment. Neither this Agreement nor any duties
or obligations under this Agreement may be assigned to by either
party without the prior written consent of the other party,
provided however, the Company may assign this Agreement in
connection with any sale or transfer of the business to which it
relates, whether by merger, sale of assets, sale of stock or
otherwise.
(D) Attorneys' Fees. If any action is brought to
enforce or interpret the provisions of this Agreement, the
prevailing party in such action will be entitled to its
reasonable attorneys' fees and costs incurred, in addition to
any other relief to which such party may be entitled.
(E) Waiver of Breach. The waiver of either party of a
breach of any provision of this Agreement shall not operate or
be construed as a waiver of any subsequent breach of this
Agreement.
(F) Severability. To the extent any provision of this
Agreement shall be invalid or unenforceable, it shall be
considered deleted herefrom and the remainder of such provision
and of this Agreement shall be unaffected and shall continue in
full force and effect. In furtherance and not in limitation of
the foregoing, should the duration or the geographical extent of
or business activities covered by any provision of this
Agreement be in excess of that which is valid and enforceable
under applicable law, then such provision shall be construed to
cover only the maximum duration, extent or activities which may
validly and enforceably be covered under applicable law. Dr.
Quay acknowledges the uncertainty of the law
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in this respect and expressly stipulates that this Agreement
shall be given the construction which renders its provisions
valid and enforceable to the maximum extent (not exceeding its
express terms) possible under applicable law.
(G) Authority. Each individual signing for each of the
parties herein warrants and represents that he is an authorized
agent of such party, for whose benefit he is executing this
Agreement, and is authorized to execute the same.
(H) Further Assurances. Each party agrees to execute
such other and further instruments and documents as may be
necessary or proper in order to complete the transactions
contemplated by this Agreement.
(I) Amendments. No amendment or modification of this
Agreement shall be deemed effective unless made in writing
signed by the parties hereto.
(J) Counterparts. This Agreement may be executed and
delivered by facsimile, in which case it shall be effective when
so executed and delivered, and the parties agree to exchange
hard copy signature pages as soon thereafter as feasible. This
Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together
shall constitute one in the same instrument.
(K) Integration. Dr. Quay and the Company agree that
this Agreement for Part-Time Employment and Mutual Release is
the sole agreement between them regarding the subject matter
herein and embodies all terms, promises, representations, and
understanding regarding the subject matter herein, and that no
representations, inducements, or promises have been made except
as expressly stated herein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year set forth above.
SONUS PHARMACEUTICALS, INC., a Delaware
corporation
By: /s/ Michael A. Martino
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Michael A. Martino, President and
Chief Executive Officer
STEVEN C. QUAY, M.D., Ph.D.
/s/ Steven c. Quay
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