EXHIBIT 10.12
FIFTH AMENDMENT OF EMPLOYMENT AGREEMENT
This Fifth Amendment of the Employment Agreement (this "Amendment") is
entered into as of _______________, 2004 (the "Effective Date") by and between
SciClone Pharmaceuticals, Inc. (the "Company") and Donald R. Sellers
("Employee").
WHEREAS, the Company and Employee entered into that certain Employment
Agreement dated February 1, 1996 (the "Original Agreement"), which contained a
one-year term of employment ending on the last day of the 12th month following
February 1, 1996 (the "Anniversary Date");
WHEREAS, the Original Agreement was subsequently amended pursuant to
the Amendment of Employment Agreement which extended the term of employment
under the Original Agreement until November 30, 1998 and designated each such
successive November 30 from that point forward as the anniversary date (the
"Amended Anniversary Date");
WHEREAS, three subsequent amendments were made to the Original
Agreement to extend Employee's term of employment for successive one-year
periods and provide for a salary increase (the "Prior Amendments") (the Original
Agreement and the Prior Amendments are collectively referred to as the
"Agreement"); and
WHEREAS, the Company and Employee desire to further amend the Agreement
effective as of the Amended Anniversary Date occurring in 2003 as set forth
below.
NOW, THEREFORE, the Company and Employee agree that:
1. Paragraph 1 is amended and restated in its entirety to read as
follows:
"POSITION. During the term of this Agreement, the Company will
employ Employee, and Employee will serve the Company as its
President and Chief Executive Officer 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. Paragraph 3.1 is amended and restated in its entirety to read
as follows:
"BASE SALARY. Employee's job performance and base salary shall
be annualized from January to December ("Base Salary") and
reviewed annually by the Company's Compensation Committee in
the month of December, except that the Base Salary,
benchmarked at $500,000 annually for 2004, for the year
following the year being reviewed shall not be lower than the
Base Salary of the year being reviewed."
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3. Paragraph 3.2 is amended and restated in its entirety to read
as follows:
"CASH BONUS. The Company agrees to pay Employee a bonus
targeted at 50% of Base Salary upon the full achievement of
specified goals agreed upon by Employee and the Company.
Employee's performance goals shall be reviewed annually by the
Company's Compensation Committee in the month of December. Any
payments made to Employee under this paragraph shall be paid
in accordance with the Company's customary bonus payment
practices, unless otherwise agreed to by the Company and
Employee."
4. Paragraph 3.3 is amended and restated in its entirety to read
as follows:
"COST-OF-LIVING ASSISTANCE PAYMENTS. The Company agrees to
continue the cost-of-living assistance payments Employee has
received since 1997, fixed at the 1997 rate ("Cost-of-living
Assistance")."
5. Paragraph 4.1 is amended and restated in its entirety to read
as follows:
"TERM. This Agreement shall terminate twelve (12) months from
the Amended Anniversary Date occurring in 2003 and,
thereafter, shall be automatically renewed for consecutive
twelve (12) month periods, unless this Agreement is terminated
by either the Company or Employee upon 60 days' notice in
accordance with the notice provisions contained in Paragraph
6.6 hereof."
6. Subsection (a) of Paragraph 5.2, entitled "Termination Without
Cause," is amended and restated in its entirety to read as
follows:
"(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 two years beyond the effective
date of termination, unless Employee obtains new employment
which offers equal or better health-related benefits coverage
in which case the Company provided coverage will terminate as
the replacement coverage begins."
7. Subsection (b) of Paragraph 5.2, entitled "Termination Without
Cause," is amended and restated in its entirety to read as
follows:
"(b) within seven (7) days of termination, the
Company shall pay Employee a severance payment equal to the
sum of the following: (i) two additional years of Employee's
then-current base salary plus Cost-of-living Assistance, (ii)
Employee's annual car allowance, and (iii) the bonus Employee
could have earned had he continued employment with the Company
through the end of the calendar year in which termination
occurs with the amount of the bonus pro-rated for the portion
of the year through the date of termination. This payment
shall be made in a lump sum, less applicable withholding,"
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8. Subsection (c) of Paragraph 5.2, entitled "Termination Without
Cause," is amended and restated in its entirety to read as
follows:
"(c) the Company shall cause all of the Employee's
outstanding stock options to become immediately vested. In
addition, the exercise period of all stock options granted to
the Employee after the Amended Anniversary Date occurring in
2003 (the "Subsequent Stock Options") shall be extended for a
period of two years from the date of termination, provided,
however, that all stock options granted to the Employee prior
to the Amended Anniversary Date occurring in 2003 (the
"Previous Stock Options") shall be governed by the provisions
of Section 5.2(c) of the Original Agreement. Notwithstanding
the foregoing, such extension of the exercise periods of the
Subsequent Stock Options and the Previous Stock Options,
respectively, shall not exceed the original terms of such
options."
9. All other terms, conditions and restrictions contained in the
Agreement shall continue in full force and effect.
10. This Amendment may be signed in one or more counterparts, each
of which shall be deemed an original, but all of which
together shall constitute one instrument.
Pursuant to Section 6.5 of the Agreement, this Amendment, when fully
executed and delivered, shall constitute an amendment thereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Fifth
Amendment of Employment Agreement as of the day and year first above written.
"COMPANY"
SCICLONE PHARMACEUTICALS, INC.
By ___________________________________
Its __________________________________
"EMPLOYEE"
______________________________________
Donald R. Sellers
[SIGNATURE PAGE TO FIFTH AMENDMENT
OF EMPLOYMENT AGREEMENT]
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