AGREEMENT
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Robert L. Capizzi, M.D. (hereafter "Dr. Capizzi"), and U.S.
Bioscience, Inc. (hereafter "U.S. Bioscience") desire and agree to restate their
employment relationship as of March 4, 1996, pursuant to the following terms and
conditions. In consideration of the mutual covenants and agreements herein
contained, and intending to be legally bound, the parties hereto agree as
follows:
1. Dr. Capizzi hereby resigns as an officer of U.S. Bioscience
effective March 4, 1996, but shall continue thereafter through May 31, 1997 (the
"Term") as an employee, serving as Senior Scientific Advisor. Dr. Capizzi's
employment and any consulting relationship shall terminate at the close of
business on May 31, 1997, without the need of any notice with respect thereto by
either party (except as provided in paragraph 2(h)).
2. U.S. Bioscience shall pay and provide to Dr. Capizzi the
following:
(a) Salary during the Term of $7,818.46 per pay period, less
normal withholding and payroll taxes, to be paid on a bi-
weekly pay schedule.
(b) Bonus payment for 1995 in an amount equal to twenty-five
percent of Dr. Capizzi's 1995
salary, to be paid upon execution of this Agreement.
(c) On the same basis as is provided to senior executives and
other employees of U.S. Bioscience, company-paid medical
benefits (including health, dental, and prescription drug),
less dependent cost, throughout the Term, or until other
employer-provided medical insurance is available, which ever
occurs first, subject to Dr. Capizzi's right to continue
such coverage under COBRA. In the event that Dr. Capizzi
obtains other employment and medical coverage, he will
promptly advise U.S. Bioscience.
(d) Group life insurance and long term disability benefit during
the Term, on the same basis as is provided to senior
executives and other employees of U.S. Bioscience. It is
agreed and understood that as of March 4, 1996, Dr. Capizzi
will no longer be entitled to participate in U.S.
Bioscience's benefit plans for (i) Supplemental Long Term
Disability, (ii) Supplemental Life Insurance, (iii) SERP,
(iv) 401(k), and (v) Money Purchase Pension Plan; provided
that Dr. Capizzi shall continue to be entitled to all
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benefits available or accrued under such plans through March
3, 1996.
(e) The right to continue to vest stock options during the Term
and the right to a cashless exercise of such vested options
during the Term and for a period of three months following
the Term.
(f) The same rights to indemnification and advancement of
expenses as Dr. Capizzi presently has pursuant to U.S.
Bioscience's certificate of incorporation and bylaws, or
such greater rights as subsequently may be made available to
directors and officers of U.S. Bioscience; provided that his
right to indemnification as an officer shall be with respect
to the period through March 3, 1996. U.S. Bioscience shall,
to the fullest extent not prohibited by law, indemnify Dr.
Capizzi for all actions and services provided by him
hereunder. In addition, U.S. Bioscience shall maintain such
directors and officers insurance coverage as it may find
appropriate, and shall include Dr. Capizzi in his capacity
as a director as an additional named insured on any such
policy.
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(g) References consistent with the terms of Attachment A.
(h) U.S. Bioscience's Executive Compensation Committee will
grant, by March 15, 1996, options to purchase 20,000 shares
of U.S. Bioscience common stock at the closing price on the
date of the grant. These shares will be exercisable as
follows: (i) 10,000 shares upon submission of supplemental
NDA on or before March 31, 2001, for Ethyol's use as a bone
marrow stimulation in myelodysplastic bone marrow syndrome,
and (ii) 10,000 shares upon FDA approval on or before March
31, 2001 of supplemental NDA for bone marrow stimulation
indication in the setting of chemotherapy induced
myelosuppression. These options will be granted subject to
the U.S. Bioscience 1992 Stock Option Plan and a stock
option agreement in the form attached hereto as Exhibit B.
The option grants described in this subsection (h) are
contingent upon Dr. Capizzi's assistance, pursuant to
Section 6 hereof, in the following areas:
. Support in the identification and recruitment of
appropriate investigators;
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. Participating in the analysis of data;
. Help in the preparation of study reports and documents
required for submission;
. Representation (if requested) before appropriate
regulatory bodies; and
. Presentation of data at academic or other meetings.
3. Separate and apart from the foregoing, U.S. Bioscience shall pay
Dr. Capizzi for 150 unused banked vacation hours, accrued through March 3, 1996,
less normal withholding and payroll taxes, upon completion of the Term. After
March 4, 1996, Dr. Capizzi shall not accrue additional vacation benefits.
4. Except as set forth in this Agreement, it is expressly agreed and
understood that U.S. Bioscience does not have and will not have any obligation
to provide Dr. Capizzi at any time in the future with any payments, benefits or
considerations other than those recited herein.
5. (a) In consideration for the payments, benefits and agreements
of U.S. Bioscience contained herein, Dr. Capizzi releases and discharges U.S.
Bioscience and its past, present and future officers, directors, attorneys,
employees, agents, successors and assigns, jointly and severally, from any and
all actions, charges, causes of action or claims of any kind, known
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or unknown, which against any of them, he, his heirs, agents, successors or
assigns ever had, now have or hereafter may have arising out of any matter,
occurrence or event existing or occurring prior to the execution hereof,
including, without limitation: any claims relating to or arising out of his
employment with U.S. Bioscience; any claims for unpaid or withheld wages,
benefits, bonuses and/or other compensation of any kind, including accrued sick
pay and vacation; any claims for attorneys' fees, costs or expenses; any claims
of discrimination based on sex, age, race, religion, color, creed, handicap,
citizenship, national origin or any other factor prohibited by Federal, State or
Local law (including any claims under Title VII of the Civil Rights Act of 1964,
the Age Discrimination in Employment Act, the Pennsylvania Human Relations Act,
the Americans with Disabilities Act, and the Employee Retirement Income Security
Act of 1974 as amended); and any and all common law claims whatsoever, whether
existing or hereinafter recognized, including but not limited to breach of
contract, libel, slander, fraud, promissory estoppel, breach of covenant of good
faith and fair dealing, equitable estoppel, misrepresentation or wrongful
discharge. Excluded from this Release are only: claims which arise subsequent
to the execution of this Agreement; actions to enforce vested rights under any
option agreement, 401(k) or retirement plan; and actions to enforce this
Agreement or the Executive Severance Agreement described and amended in Section
19, below.
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(b) In consideration for Dr. Capizzi's covenants and agreements
contained herein, U.S. Bioscience releases and discharges Dr. Capizzi, his
heirs, personal representatives, agents, successors and assigns from any and all
actions, charges, causes of action or claims of any kind, known or unknown,
which against any of them, U.S. Bioscience, its officers, directors, attorneys,
employees, agents, successors and assigns ever had, now have or hereafter may
have, arising out of any matter, occurrence or event existing or occurring prior
to the execution hereof, including, without limitation, any claims relating to
or arising out of Dr. Capizzi's employment with U.S. Bioscience or his service
as an officer or director.
6. Dr. Capizzi shall provide to U.S. Bioscience up to 225 hours of
consulting services during the Term. Such consulting services may include, but
shall not be limited to, (a) speaking on behalf of U.S. Bioscience or its
products, (b) assistance in addressing clinical or preclinical questions, (c)
assistance in preparing position papers, (d) contacting potential investigators
on behalf of U.S. Bioscience and assisting in study design, and (e) assisting
U.S. Bioscience to assign, obtain, maintain, and enforce all proprietary rights
relating to inventions he conceived or reduced to practice during his employment
with U.S. Bioscience which relate to any of U.S. Bioscience's products, services
or activities of which he is aware. U.S. Bioscience will make reasonable
efforts to provide
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Dr. Capizzi with advance notice when requesting his services and he will make
reasonable efforts to adapt his schedule to comply with U.S. Bioscience's
reasonable request. Such consulting services may be performed by telephone
and/or by written communication and may require Dr. Capizzi's presence at U.S.
Biosciences' facilities or his travel outside of the greater Philadelphia area.
It is expressly understood that during the Term Dr. Capizzi may obtain full-time
employment with another employer. Consulting services in excess of 225 hours
during the Term shall be compensated at a rate to be mutually agreed by the
parties. U.S. Bioscience shall advance to Dr. Capizzi or reimburse promptly all
costs and expenses related to such consulting services, including but not
limited to secretarial support services, literature searches, slide preparation,
conference registration, travel and accommodations, and other reasonable
expenses appropriate to Dr. Capizzi's representation of U.S. Bioscience at
conferences and professional meetings. It is understood that such expenses
shall be subject to approval in advance by U.S. Bioscience.
7. Dr. Capizzi agrees that during the Term and thereafter he will
keep in strictest confidence all secret or confidential information, knowledge
or data relating to U.S. Bioscience and its business or products which shall be
obtained by him during his employment ("Proprietary Information"), and will not
use or disclose any Proprietary Information without the
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written consent of U.S. Bioscience, except as may be necessary in the ordinary
course of performing his duties as an employee of U.S. Bioscience; provided that
this obligation does not apply to any information that becomes published or
otherwise part of the public domain other than through any wrongful act or
omission by Dr. Capizzi.
8. All documents, notes and other materials of any nature relating
to any Proprietary Information which are generated by Dr. Capizzi or come into
his possession shall be owned exclusively by U.S. Bioscience. Dr. Capizzi will
not take any original or copy of the foregoing and will return the same to U.S.
Bioscience upon request. In addition to the foregoing, Dr. Capizzi will not
publish anything during the Term relating to Proprietary Information without the
written consent of U.S. Bioscience.
9. In any action brought by either party for enforcement of the
rights given by this Agreement, the prevailing party shall be entitled to
payment by the other of all reasonable attorneys' fees and costs incurred due to
or resulting from the action.
10. In the event of Dr. Capizzi's death prior to the receipt of all
amounts to which he is entitled hereunder, such amounts (including, without
limitation, all amounts due pursuant
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to section 2 hereof) shall be paid to Dr. Capizzi's spouse, or such other
beneficiary as Dr. Capizzi shall name by notice to U.S. Bioscience.
11. Neither party shall engage in any communications which disparage
or interfere with the other party's existing or prospective business
relationships.
12. Neither party shall communicate or disclose the terms of this
Agreement to any person without the prior consent of the other party; provided
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that Dr. Capizzi may discuss this Agreement with members of his immediate
family, his attorney and his accountant.
13. This Agreement embodies the complete understanding and agreement
between U.S. Bioscience and Dr. Capizzi and, other than the Executive Severance
Agreement described below and the option agreements previously issued to Dr.
Capizzi, supersedes any and all prior agreements between them, oral or written,
express or implied, including without limitation the non-competition and
confidentiality provisions of the Employment Agreement dated August 14, 1991 are
superseded by this Agreement, provided that nothing contained in this Agreement
shall supersede the provisions of paragraph 7(c) of such Employment Agreement.
For the sake of clarity, the parties agree that Dr. Capizzi shall not be
prohibited from pursuing research and commercial
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development relating to oncology and Acquired Immune Deficiency Syndrome (AIDS)
or any other area and obtaining new patents in his own name or those of others,
including without limitation any such relating to cytoprotection, marrow
stimulation and antifols, so long as he does not use any Proprietary Information
of U.S. Bioscience.
14. This Agreement shall be governed by the law of the Commonwealth
of Pennsylvania and any suit against U.S. Bioscience or Dr. Capizzi claiming a
breach hereof shall be maintained in a state or federal court in Pennsylvania.
15. Nothing in this Agreement is to be construed as an admission or
concession of liability or wrongdoing by either U.S. Bioscience or Dr. Capizzi.
16. Dr. Capizzi agrees and represents that:
(a) He has read carefully all of the terms of this Agreement;
(b) He has been encouraged to review this Agreement with an
attorney;
(c) He understands the meaning and effect of the terms of this
Agreement;
(d) He was given up to twenty-one (21) days to determine whether
he wishes to enter into this Agreement;
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(e) He understands that he has seven (7) days from the date of
execution of this Agreement to revoke his execution thereof;
(f) The entry into and execution of this Agreement is of his own
free will and a voluntary act without compulsion of any
kind; and
(g) No promise or inducement not expressed herein has been made
to him.
17. U.S. Bioscience hereby represents to Dr. Capizzi that it has all
requisite corporate power and authority to enter into this Agreement and perform
its obligations hereunder, and that this Agreement has been duly authorized,
executed and delivered by U.S. Bioscience and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms.
18. If any part or term of this Agreement is subsequently determined
by any court of competent jurisdiction to be unenforceable or illegal, such
determination should not affect the enforceability, legality or binding nature
of any other term or provision of this Agreement.
19. The parties to this Agreement are parties to an Executive
Severance Agreement dated October 14, 1991 (the
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"Executive Severance Agreement"). Dr. Capizzi agrees that in the event he
becomes eligible to receive compensation under the Executive Severance
Agreement, such compensation shall be reduced by an amount equal to the amount
paid to Dr. Capizzi under this Agreement. The Executive Severance Agreement
shall cease to be applicable to Dr. Capizzi in accordance with paragraph 2(b) of
the Executive Severance Agreement.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first written above.
/s/ Robert L. Capizzi, M.D.
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Robert L. Capizzi, M.D.
U.S. BIOSCIENCE, INC.
/s/ H. Charles Ford
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H. Charles Ford
Vice President, Human Resources
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