Exhibit 10.4
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), made as of the 1/st/ day
of August, 2002, is entered into by and between Curis, Inc., a Delaware
corporation (the "Company"), and Christopher U. Missling (the "Employee").
The Company desires to employ the Employee, and the Employee desires to
be employed by the Company. In consideration of the mutual covenants and
promises contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Term of Employment. The Company hereby agrees to employ the
Employee, and the Employee hereby accepts employment with the
Company, upon the terms set forth in this Agreement, for the
period commencing on August 1, 2002 (the "Commencement Date") and
ending on July 31, 2006 (such period, as it may be extended, the
"Employment Period"), unless sooner terminated in accordance with
the provisions of Section 4.
2. Position.
(ii) The Employee shall serve as Senior Vice President,
Finance and Strategic Planning and Chief Financial
Officer of the Company. The Employee shall have duties
and authority consistent with his position as Senior Vice
President, Finance and Strategic Planning and Chief
Financial Officer and as may be assigned from time to
time by the President and Chief Executive Officer (the
"President") and the Board of Directors of the Company
(the "Board").
The Employee shall report to, and be subject to the
supervision of, the President and the Board. The Employee
agrees to devote his
entire business time to the business and interests of the
Company during the Employment Period.
(iii) The Employee agrees to abide by the rules, regulations,
instructions, personnel practices and policies of the
Company and any changes therein which may be adopted from
time to time by the Company.
3. Compensation and Benefits.
3.1 Salary. The Company shall pay the Employee, in periodic
installments in accordance with the Company's customary
payroll practices, a base salary of $225,000 per annum.
Such salary shall be subject to annual review by the
President and the Board.
3.2 Bonus. The Employee's annual bonus shall be determined by
the President and the Board and shall be based on the
achievement of specific objectives established by the
President and the Board. Such bonus shall be paid in the
form of cash or additional shares of common stock of the
Company (or options therefore), at the President's and
Board's discretion.
3.3 Fringe Benefits. The Employee shall be entitled to
participate in all medical and other benefit programs
that the Company establishes and makes available to its
employees, if any, to the extent that Employee's
position, tenure, salary, age, health and other
qualifications make him eligible to participate. The
Employee shall be entitled to four weeks paid vacation
per year.
The Company will provide parking or reimbursement of the
cost of a MBTA pass.
The Company will provide fully paid D & O insurance
coverage for Employee
3.4 Stock Options. The Company will grant Employee an option
to purchase 200,000 shares of common stock of the
Company, subject to approval by the Board of Directors at
the first board meeting after August 1, 2002. The stock
option will vest over four (4)
years with 25% vesting on Employee's anniversary of employment. The
stock option will then vest at 6.25% per quarter over the remainder of
the vesting period. Vesting of stock options is contingent upon
Employee's continued employment with the Company. In the case of a
Change of Control, even though no job of equal or comparable title and
function is offered to Employee, all remaining options shall vest. The
exercise price of the option will be fair market value as established by
the Board of Directors. The determination of the exercise price shall be
consistent with the policy of the Compensation Committee. The stock
option will be evidence by an Option Agreement and will be subject to
all the terms and provisions of the Option Agreement and the Plan.
Employee will be granted an additional option to purchase 150,000 shares
of common stock of the Company subject to approval by the Board of
Directors at the next board meeting after August 1, 2002. The stock
option will vest upon achievement of goals identified by the board and
will be treated as a variable option and therefore subject to variable
accounting. The exercise price of the option will be fair market value
as established by the Board of Directors. The stock option will be
evidenced by an Option Agreement and will be the subject to all the
terms and provision of the Option Agreement Plan.
3.5 Reimbursement of Expenses. The Company shall reimburse the Employee for
all reasonable travel, entertainment and other expenses incurred or paid
by the Employee in connection with, or related to, the performance of
his duties, responsibilities or services under this Agreement, upon
presentation by the Employee of documentation, expense statements,
receipts, vouchers and/or such other supporting information as the
Company may request, provided, however, that the maximum amount
available for such
travel, entertainment and other expenses may
be fixed in advance by the President and the
Board.
3.6 Relocation. A condition of Employee's
employment by the Company is relocation of
Employee's residence to the Boston area
within a six months period unless otherwise
mutually agreed. In connection with the
Company shall reimburse Employee for
reasonable expenses incurred in moving his
principal residence to the Boston area.
Eligible relocation includes airfare, car
rental, and temporary housing and commuting
expenses between Germany and the United
States. The Company will refer Employee to a
relocation specialist and moving company to
assist in this process. Employee also shall
be reimbursed the airfare for two overseas
trips. Relocation assistance is taxable
under IRS regulations and will be included
in your W-2. Employee will receive a tax
gross-up payment in an amount that after all
Federal, state and local income taxes
thereon shall equal the receipt of such
reimbursement under this section.
The Company agrees that Employee may stay in
Germany during the first six months of the
employment. The Company will reimburse
airfare, car rental, and temporary housing
and commuting expenses between Germany and
the United States. The Company will pay
reasonable costs of preparation of
Employee's annual and estimated federal
income tax {Massachusetts, State and
Germany} and income tax returns for proper
compliance with double taxation treaty.
3.7 Withholding. All salary and other
compensation payable to the Employee shall
be subject to applicable withholdings.
4. Termination of Employment Period.
(a) The employment of the Employee by the Company
pursuant to this Agreement shall terminate upon the expiration
of the Employment Period.
(b) The Company has the right to terminate the
Employee's employment
under this Agreement, by notice to the Employee in writing at any time (i) for
Cause (as defined below), (ii) without Cause for any or no reason, or (iii) due
to the Disability (as defined below) of the Employee. Any such termination shall
be effective upon the date of such notice to the Employee or such other date as
may be specified in such notice.
(c) Employee's employment under this Agreement shall terminate
immediately upon the Employee's death.
(d) The Employee shall have the right to terminate his employment
under this Agreement (i) for any reason or no reason upon sixty (60) days' prior
written notice to the Company or (ii) for Good Reason (as defined below) upon
thirty (30) days' prior written notice specifying such Good Reason.
(e) As used in this Agreement, the terms below shall have the
following meanings:
(i) "Cause" shall mean (a) a good faith finding by the Company
that (i) the Employee has breached this Agreement and has failed to remedy such
failure within thirty (30) days after notice thereof to the Employee, or (ii)
the Employee has engaged in dishonesty, gross negligence or misconduct, or
(b) the conviction of the Employee of, or the entry of a pleading of guilty or
nolo contendere by the Employee to, any crime involving moral turpitude or any
felony.
(ii) "Good Reason" shall mean (a) any significant diminution in
the Employee's position, duties, power or title; (b) any reduction in his annual
base salary; (c) any material breach by the Company of this Agreement which is
not cured within thirty (30) days after notice of such breach by the Employee
to the Company; or (d) the failure of the Company to obtain a reasonably
satisfactory agreement from any successor to the business of the Company to
assume and agree to perform this Agreement, as contemplated by Section 10 below.
(iii) "Disability" shall be deemed to occur if, as a result of the
Employee's incapacity due to physical or mental illness, the Employee shall have
been absent from the full-time performance of his duties with the Company for
six (6) consecutive months.
5. Immigration. The Company shall process the request for Employee's Visa
(H-1B) and for Green Card status. All costs including, but not limited to filing
fees, legal fees, travelling and other expenses shall be either paid or
reimbursed by the Company.
6. Compensation upon Termination.
(a) If the Employment Period is terminated (i) by the Company without
Cause, or (ii) by the Employee for Good Reason, then the Company shall (A) pay
to the Employee his base salary accrued through the date of termination, and (B)
pay to the Employee, or his estate, in equal bi-weekly installments over a
six-month period following such termination, a severance amount equal to six
months of his base salary as in effect as the time of termination.
(b) If the Employment Period is terminated (i) by the Company for
Cause, (ii) by the Employee without Good Reason or (iii) due to the death or
Disability of the Employee, the Company shall pay to the Employee his base
salary accrued through the date of termination.
(c) The Employee shall not be required to mitigate the amount of any
payment provided for in this Section 5 by seeking other employment or otherwise.
7. Notices. All notices, instructions, demands, claims, requests and
other communications given hereunder or in connection herewith shall be in
writing. Any such communication shall be sent either (a) by registered or
certified mail, return receipt requested, postage prepaid, or (b) via a
reputable nationwide overnight courier service, in each case to the address set
forth below. Any such communication shall be deemed to have been delivered two
business days after it is sent by registered or certified mail, return receipt
requested, postage prepaid, or one business day after it is sent via a reputable
nationwide overnight courier service.
To the Company: Curis, Inc.
61 Moulton Street
Cambridge, Massachusetts 02138
Fascimile: (617) 503-6501
Attention: Chief Executive Officer
To the Employee: Christopher U. Missling
Either party hereto may give any notice, instruction, demand, claim, request or
other communication hereunder using any other means (including personal
delivery, expedited courier, messenger service, telecopy, telex, ordinary mail
or electronic mail), but no such communication shall be deemed to have been duly
given unless and until it actually is received by the party for which it is
intended. Either party hereto may change the address to which notices,
instructions, demands, claims, requests and other communications hereunder are
to be delivered by giving the other party hereto notice in the manner set forth
in this Section 6.
8. Entire Agreement. This Agreement constitutes the entire agreement
between the parties and supersedes all prior agreements and understandings,
whether written or oral, relating to the subject matter of this Agreement.
9. Amendment. This Agreement may be amended or modified only by a written
instrument executed by both the Company and the Employee.
10. Governing Law. This Agreement shall be construed, interpreted and
enforced in accordance with the laws of the Commonwealth of Massachusetts.
11. Successors and Assigns. The Company will require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business or assets of the Company expressly to
assume and agree to perform this Agreement to the same extent that the Company
would be required to perform it if no such succession had taken place. As used
in this Agreement, "Company" shall mean the Company as defined above and any
successor to its business or assets which assumes and agrees to perform this
Agreement by operation of law, or otherwise.
12. Miscellaneous.
12.1 No delay or omission by the Company in exercising any right under
this Agreement shall operate as a waiver of that or any other right. A waiver
or consent given by the Company on any one occasion shall be effective only in
that instance and shall not be construed as a bar or waiver of any right on any
other occasion.
12.2 The captions of the sections of this Agreement are for
convenience
of reference only and in no way define, limit or affect the scope or
substance of any section of this Agreement.
12.3 In case any provision of this Agreement shall be invalid, illegal
or otherwise unenforceable, the validity, legality and enforceability of
the remaining provisions shall in no way be affected or impaired thereby.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year set forth above.
CURIS, INC.
By: /s/ Daniel R. Passeri
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Name: Daniel R. Passeri
Title: President and Chief Executive Officer
EMPLOYEE
/s/ Christopher U. Missling
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Christopher U. Missling