EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into February 1,
1996 between SciClone Pharmaceuticals, Inc. a California corporation, (the
"Company"), and Donald R. Sellers, an individual ("Employee").
In consideration of the promises and the terms and conditions set forth
in this Agreement, the parties agree as follows:
1. Position. During the term of this Agreement, the Company will employ
Employee, and Employee will serve the Company as its President and will have
such other responsibilities, authority and titles as may from time to time be
assigned to Employee by the Board of Directors of the Company.
2. Duties. Employee will have the duties and responsibilities generally
associated with the positions held by Employee and as the Board of Directors of
the Company may from time to time determine. Employee will comply with and be
bound by Company's operating policies, procedures, and practices from time to
time in effect during Employee's employment. Employee hereby represents and
warrants that he is free to enter into and fully perform this Agreement and the
agreements referred to herein without breach of any agreement or contract to
which he is a party or by which he is bound.
3. Compensation and Benefits.
3.1 Base Salary. The Company agrees to pay Employee a base salary of
$400,000. The base salary shall be payable as earned in accordance with
Company's customary payroll practice. If this Agreement is renewed pursuant to
Section 4, Employee's base salary for future years shall be negotiated by the
Company and Employee.
3.2 Cash Bonus. The Company agrees to pay Employee a bonus of $200,000
upon the full achievement of specified goals agreed upon by Employee and the
Company. The bonus shall be payable in accordance with the Company's customary
bonus payment practices unless otherwise agreed by the Company and Employee. If
this Agreement is renewed pursuant to Section 5, Employee's future bonus targets
and goals shall be negotiated by the Company and Employee.
3.3 Cost-of-Living Assistance Payments. The Company (or a subsidiary of
the Company) agrees to continue the cost-of-living assistance payments Employee
received as Managing Director, Pacific Rim Operations of the Company at their
current level through July 31, 1996.
3.4 Car Allowance. Employee will receive a car allowance of $850 per
month.
3.5 Additional Benefits. Employee will be eligible to participate in
the Company's employee benefit plans of general application, including without
limitation those plans covering pension and profit sharing, stock purchases,
stock options, and those plans covering life, health,
and dental insurance in accordance with the rules established for individual
participation in any such plan and applicable law. Employee will receive such
other benefits, including vacation, holidays and sick leave, as the Company
generally provides to its employees holding similar executive positions as that
of Employee.
3.6 Expenses. The Company will reimburse Employee for all reasonable
and necessary expenses incurred by Employee in connection with the Company's
business, provided that such expenses are in accordance with the Company's
applicable policy and are properly documented and accounted for in accordance
with the requirements of the Internal Revenue Service.
4. Term and Termination.
4.1 Term. This Agreement shall terminate 12 months from the date first
entered into above (the "Anniversary Date") unless renewed by the Company and
Employee.
4.2 Events of Termination. The Agreement may terminated upon the
occurrence of any one of the following events:
(a) The Company's determination made in good faith that it is
terminating Employee for "cause" (as defined herein) ("Termination for Cause").
(b) The Company's determination that it is terminating
Employee without "cause" (as defined herein), which determination may be made by
the Company at any time at the Company's sole discretion, for any reason or for
no reason ("Termination Without Cause").
(c) The effective date of a written notice sent to the Company
from Employee stating that Employee is electing to terminate his employment with
the Company ("Voluntary Termination").
4.3 "Cause" Defined. For purposes of this Agreement, "cause" for
Employee's termination will exist at any time after the happening of one or more
of the following events:
(a) Employee's willful misconduct or gross negligence in
performance of his duties hereunder, inducing Employee's refusal to comply in
any material respect with the legal directives of the Company's Board of
Directors so long as such directives are not inconsistent with the Employee's
position and duties, and such refusal to comply is not remedied within ten (10)
working days after written notice from Company, which written notice shall state
that failure to remedy such conduct may result in Termination for Cause.
(b) Dishonest or fraudulent conduct, a deliberate attempt to
do an injury to the Company, or conduct that materially discredits the Company
or is materially detrimental to the reputation of the Company.
(c) Employee's incurable material breach of any element of the
Company's Proprietary Information and Inventions Agreement, including without
limitation, Employee's theft or other misappropriation of the Company's
proprietary information.
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4.4 "Disability" Defined. For purposes or this Agreement, "disability"
will mean that the Board of Directors has determined, based on competent medical
evidence, that the Employee has become incapable, mentally or physically, of
substantially performing his services and discharging his duties hereunder for a
period in excess of six (6) months.
5. Effect of Termination.
5.1 Termination for Cause or Voluntary Termination. In the event of any
termination of this Agreement pursuant to Sections 4.2(a) or 4.2(c), the Company
shall pay Employee the compensation and benefits otherwise payable to Employee
under Section 3 through the date of termination. Employee's rights under the
Company's benefit plans of general application shall be determined under the
provisions of those plans.
5.2 Termination Without Cause. In the event of any termination of this
Agreement pursuant to Section 4.2(b), or as a result of a material diminution of
Employee's duties and responsibilities by the Company, or as a result of
Employee's death or disability (as defined herein),
(a) the Company shall pay Employee the compensation and
benefits otherwise payable to Employee under Section 3 through the date of
termination, except that health-related benefits shall continue for one year
beyond the effective date of termination.
(b) within seven (7) days of termination, Company shall pay
Employee a severance payment equal to the sum of one year of the Employees
then-current base salary, car allowance and the bonus Employee could have earned
had he continued employment with the Company through the end of the calendar
year in which termination occurs,
(c) the Company shall cause all of the Employee's outstanding
stock options to become immediately vested and the exercise period of such
options will be extended for a period of one year, provided, however, that such
extension shall not exceed the original term of such options, and
(d) Employee's rights under the Company's benefit plans of
general application shall be determined under the provisions of those plans.
6. Miscellaneous.
6.1 Severability. If any provision of this Agreement shall be found by
any arbitrator or court of competent jurisdiction to be invalid or
unenforceable, then the parties hereby waive such provision to the extent that
it is found to be invalid or unenforceable and to the extent that to do so would
not deprive one of the parties of the substantial benefit of its bargain. Such
provision shall, to the extent allowable by law and the preceding sentence, be
modified by such arbitrator or court so that it becomes enforceable consistent
with the intent of this Agreement and, as modified, shall be enforced as any
other provision hereof, all the other provisions continuing in full force and
effect.
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6.2 No Waiver. The failure by either party at any time to require
performance or compliance by the other of any of its obligations or agreements
shall in no way affect the right to require such performance or compliance at
any time thereafter. The waiver by either party of a breach of any provision
hereof shall not be taken or held to be a waiver of any preceding or succeeding
breach of such provision or as a waiver of the provision itself. No waiver of
any kind shall be effective or binding, unless it is in writing and is signed by
the party against whom such waiver is sought to be enforced.
6.3 Assignment. This Agreement and all rights hereunder are personal to
Employee and may not be transferred or assigned by Employee at any time. The
Company may assign its rights, together with its obligations hereunder, to any
parent, subsidiary, affiliate or successor, or in connection with any sale,
transfer or other disposition of all or substantially all of its business and
assets, provided, however, that any such assignee assumes the Company's
obligations hereunder.
6.4 Withholding. All sums payable to Employee hereunder shall be
reduced by all federal, state, local and other withholding and similar taxes and
payments required by applicable law.
6.5 Amendment. This Agreement may be amended, modified, superseded,
canceled, renewed or extended only by an agreement in writing executed by both
parties hereto.
6.6 Notices. All notices and other communications required or permitted
under this Agreement shall be in writing and hand delivered, sent by telecopier,
sent by certified first class mail, postage pre-paid, or sent by nationally
recognized express courier service. Such notices and other communications shall
be effective upon receipt if hand delivered or sent by telecopier, five (5) days
after mailing if sent by mail, and one (1) day after dispatch if sent by express
courier, to the following addresses, or such other addresses as any party, shall
notify the other parties:
If to the Company: SciClone Pharmaceuticals, Inc.
901 Mariners Island Blvd.
San Mateo, CA 94404
Attention: Chairman of the Board of Directors
Telecopier: (415) 358-3469
If to Employee: Donald R. Sellers
c/o SciClone Pharmaceuticals, Inc.
901 Mariners Island Boulevard
San Mateo, CA 94404
Telecopier: (415) 358-3469
6.7 Binding Nature. This Agreement shall be binding upon, and inure to
the benefit of, the successors and personal representatives of the respective
parties hereto.
6.8 Headings. The headings contained in this Agreement are for
reference purposes only and shall in no way affect the meaning or interpretation
of this Agreement. In this
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Agreement, the singular includes the plural, the plural included the singular,
the masculine gender includes both male and female referents, and the word "or"
is used in the inclusive sense.
6.9 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,
taken together, constitute one and the same agreement.
6.10 Governing Law. This Agreement and the rights and obligations of
the parties hereto shall be construed in accordance with the laws of the State
of California, without giving effect to the principles of conflict of laws.
IN WITNESS WHEREOF, the Company and Employee have executed this
Agreement as of the date first above written.
SCICLONE PHARMACEUTICALS, INC. EMPLOYEE
By: ____________________________ ______________________________
Donald R. Sellers
Name:___________________________
Title:__________________________
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