EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into this the (____) day of
(__________), by and between Triangle Pharmaceuticals, Inc., a Delaware
corporation (the "Company"), and (_____________________) (the "Executive").
W I T N E S S E T H:
WHEREAS, Executive has been an employee of the Company since (__________);
WHEREAS, the terms of Executive's employment are set forth in certain
employment related documents (hereinafter the "Employment Memoranda");
WHEREAS, the Company and Executive desire to modify Executive's terms of
employment and the Employment Memoranda as set forth herein;
WHEREAS, the Company desires to receive certain promises, including
noncompetition and nonsolicitation covenants, from Executive;
WHEREAS, Executive desires to receive from the Company certain enhanced
severance benefits and certain other benefits in the event of a change in
control of the Company as set forth herein; and
WHEREAS, Executive acknowledges that this Agreement and the benefits
described herein are valuable consideration to which he is not otherwise
entitled.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and other good and valuable consideration, including the
employment of Executive by the Company under this Agreement, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Employment. The Company hereby employs Executive as Vice President,
Commercial Operations and IR/PR, or in such other capacity as may be designated
by the Company from time to time in its sole discretion, and Executive hereby
accepts such employment upon the terms and conditions set forth herein for the
Term of the Agreement, as defined in Section 2 hereof. While so employed,
Executive agrees to devote his full time and attention to carrying out his
duties and responsibilities under this Agreement and to use his best efforts,
skills and abilities to further the interests of the Company. While employed by
the Company, Executive may not work
for any other entity, in any capacity, without the prior express written consent
of the Company. Executive agrees to comply with all applicable governmental
laws, rules and regulations, and policies, standards and regulations of the
Company now existing or hereafter promulgated.
2. Term of Agreement. The term of this Agreement shall commence as of the
date and year first above written and shall continue until December 31, 2000
(the "Initial Term"), unless terminated as provided herein. Thereafter, this
Agreement shall renew automatically for successive one (1) year terms on the
same terms and conditions as set forth herein, or as may be amended from time to
time upon mutual written consent of the parties, unless it is terminated as
provided herein or unless either party gives written notice of non-renewal at
least thirty (30) days prior to the end of any term of this Agreement, unless
such notice is waived by the Company. As used in this Agreement, "Term of
Agreement" means the Initial Term and any extensions of this Agreement, as
provided for in this Section.
3. Compensation. Executive shall receive initially a base salary of
($__________) a year ("Base Salary"), less required federal and state
withholdings and other authorized deductions, payable in accordance with the
Company's normal payroll schedule. Executive's Base Salary may be adjusted from
time to time as determined by the Board of Directors of the Company.
4. Other Benefits. Executive may be eligible to participate in the
Company's retirement and welfare benefit plans under the terms and conditions
established by the applicable plan documents. Executive shall be entitled
annually to paid vacation and other paid time off in compliance with all
applicable laws and in accordance with the terms and conditions of the Company's
vacation and professional leave policies, as may be amended from time to time in
the Company's sole discretion.
5. Disability Payments. If Executive becomes eligible to receive benefits
under any short-term or long-term disability plan or policy sponsored by the
Company, then all payments and benefits provided by this Agreement, including,
but not limited to, the compensation described in Section 3, will cease, and
this Agreement shall terminate when Executive is considered to be a terminated
employee under the applicable policies and procedures of the Company.
6. Termination of Employment.
(a) Termination of Employment Relationship. The employment
relationship between the Company and Executive shall terminate
automatically upon the termination or non-renewal of this Agreement by
either party as provided in Section 2 or 6.
(b) Termination For Cause. The Board of Directors of the Company may
terminate this Agreement for Cause, as defined in Section 8, upon three
(3) business days written notice which shall state the reason for such
termination and shall be delivered to Executive in accordance with Section
16 hereof. Upon the mailing or the delivery in person of such notice,
Executive's duties and authority to act on behalf of the Company shall
cease
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immediately and his employment shall be deemed to terminate on the date
fixed in the notice.
(c) Voluntary Termination. Either the Company or Executive may
voluntarily terminate this Agreement upon thirty (30) days written notice,
for any reason, other than death or Retirement, as such terms are defined
in Section 8.
(d) Termination Upon Death or Retirement. This Agreement shall
terminate automatically, except as otherwise provided herein, upon
Executive's death or "Retirement," as defined in Section 8. If this
Agreement is terminated on account of Executive's Retirement, the parties
shall be required to carry out any provisions hereof which contemplate
performance thereof subsequent to termination and nothing contained herein
shall be deemed to preclude Executive and the Company from negotiating a
mutually acceptable basis upon which Executive continues his employment by
the Company in a full-time or part-time capacity.
(e) Termination for Good Reason. Executive may terminate this
Agreement at any time upon three (3) business days written notice to the
Company for "Good Reason," as defined in Section 8.
7. Effect of Termination.
(a) Termination for Cause. If this Agreement is terminated for Cause
pursuant to Section 6(b), the Company shall pay Executive such Base Salary
as Executive may be entitled to receive for services rendered prior to the
effective date of such termination and for any accrued but unused
vacation.
(b) Voluntary Termination by Executive. If Executive voluntarily
terminates this Agreement pursuant to Section 6(c) or elects not to renew
this Agreement pursuant to Section 2, the Company shall pay Executive such
Base Salary as Executive may be entitled to receive for services rendered
prior to the effective date of such termination and for any accrued but
unused vacation.
(c) Termination Upon Death or Retirement. If this Agreement is
terminated on account of Executive's death or Retirement pursuant to
Section 6(d), the Company shall pay Executive such Base Salary as
Executive may be entitled to receive for services rendered prior to the
effective date of such termination and for any accrued but unused
vacation. In addition, if this Agreement is terminated on account of
Executive's death, all outstanding options to purchase shares of stock of
the Company granted to Executive will become fully vested and exercisable,
and the Company's rights to repurchase, and all other restrictions
applicable to awards of restricted stock, shall lapse on the date of
Executive's death, subject to the terms and conditions of the applicable
plan documents and agreement(s).
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(d) Termination without Cause. Except as provided in Section 7(e),
if this Agreement is terminated by the Company without Cause pursuant to
Section 6(c) or if the Company elects not to renew this Agreement pursuant
to Section 2, then:
(i) The Company shall pay Executive such Base Salary as he may
be entitled to receive for services rendered prior to the date of
such termination (the "Payment for Services Rendered");
(ii) The Company shall pay Executive for any accrued but
unused vacation (the "Vacation Payment");
(iii) Subject the restrictions set forth in Sections 9 and 10,
the Company shall pay Executive an amount equal to one-twelfth
(1/12) of Executive's Base Salary each month for a period of
eighteen (18) months, which amount shall be payable in accordance
with the regularly scheduled payroll of the Company beginning on or
after the Release Date, as defined in Section 8 (the "Eighteen Month
Payment");
(iv) Subject to the restrictions set forth in Sections 9 and
10, if Executive timely elects to continue coverage under the
Company's health care plan, pursuant to the Consolidated Omnibus
Budget Reconciliation Act of 1985, as amended ("COBRA"), the Company
shall pay Executive at the end of each month for the first eighteen
(18) months beginning on the first day of the first month following
the Release Date, an amount equal to Executive's monthly premium for
the COBRA coverage so elected (the "COBRA Payment"). The Company's
obligation under this Section 7(d)(iv) shall immediately cease at
such time as Executive becomes eligible for comparable health
coverage from another company. If Executive fails to notify the
Company that he is eligible for other health coverage within thirty
(30) days of becoming eligible for such coverage, Executive shall be
considered in breach of this Agreement and shall be required to
repay to the Company all payments made under this Section 7(d)(iv);
and
(v) Subject to the restrictions set forth in Section 9, the
Company shall accelerate the vesting of any outstanding option to
purchase shares of stock of the Company granted to Executive by one
(1) year, and accelerate the lapse of all repurchase rights and
forfeiture restrictions applicable to any restricted stock award by
one (1) year, all subject to the terms and conditions of the
applicable plan documents and agreement(s).
(e) Termination Following a Change in Control. If, within twelve
(12) months following a Change in Control, as defined in Section 8, this
Agreement is terminated by the Company without Cause pursuant to Section
6(c), the Company elects not to renew this Agreement pursuant to Section
2, or Executive terminates this Agreement for Good Reason pursuant to
Section 6(e), then the Company shall pay
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Executive the Payment for Services Rendered and the Vacation Payment. In
addition to the foregoing, and subject to the restrictions set forth in
Section 9:
(i) the Company shall pay Executive an amount equal to
one-twelfth (1/12) of Executive's Base Salary for a period of
twenty-four (24) months (the "Twenty-Four Month Payment"), which
amount shall be payable in accordance with the regularly scheduled
payroll of the Company beginning on or after the Release Date, as
defined in Section 8;
(ii) all outstanding options to purchase shares of stock of
the Company granted to Executive will become fully vested and
exercisable, and the Company's rights to repurchase, and all other
restrictions applicable to awards of restricted stock, shall lapse,
all subject to the terms and conditions of the applicable plan
documents and agreement(s); and
(iii) the Company shall pay Executive the COBRA Payment. The
Company's obligation under this Section 7(e)(iii) shall immediately
cease at such time as Executive becomes eligible for comparable
health coverage from another company. If Executive fails to notify
the Company that he is eligible for other health coverage within
thirty (30) days of becoming eligible for such coverage, Executive
shall be considered in breach of this Agreement and shall be
required to repay to the Company all payments made under this
Section 7(e)(iii).
(f) Notwithstanding the foregoing, nothing herein shall be construed
to entitle Executive to any severance benefits beyond those specified in
this Section, and the severance benefits described in this Section are in
lieu of any other severance benefits which may be offered by the Company,
whether by the terms of this Agreement or otherwise, to any employee.
(g) Notwithstanding the foregoing, the Company shall have the right
to waive or accelerate any applicable notice period for termination or
non-renewal of this Agreement and may terminate this Agreement immediately
upon payment to Executive of an amount which the Company determines, in
its sole discretion and in good faith, to be equal to the amount of Base
Salary Executive would have received if notice had not been waived or
accelerated by the Company.
8. Definitions.
(a) For purposes of this Agreement, "Cause" shall be defined as:
(i) Executive being formally charged with the commission of a
felony, or being convicted of a misdemeanor involving moral
turpitude.
(ii) Executive's demonstrable fraud or dishonesty.
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(iii) Executive's use of illegal drugs or any illegal
substance, or his use of alcohol in any manner that materially
interferes with the performance of his duties under this Agreement.
(iv) Executive's intentional, reckless or grossly negligent
conduct detrimental to the best interests of the Company, including
without limitation, any misappropriation or unauthorized use of the
Company's property or improper disclosure of confidential
information.
(v) Executive's failure to perform material duties under this
Agreement if such failure has continued for twenty (20) days after
Executive has been notified in writing by the Company of the nature
of Executive's failure to perform.
(vi) Executive's chronic absence from work for reasons other
than illness.
(vii) Executive's violation of the Company's policy
prohibiting sexual harassment.
(viii) Executive's violation of the Company's policy
prohibiting unlawful discrimination.
(b) For purposes of this Agreement, "Change of Control" shall be
deemed to have occurred if:
(i) Assumption or Assignment. A merger or asset sale occurs in
which this Agreement is assumed or assigned;
(ii) Tender Offer or Acquisition. Any "person" as defined in
Section 3(a)(9) of the United States Securities Exchange Act of 1934
(the "Act"), including a "group" (as that term is used in sections
13(d)(3) and 14(d)(2) of the Act), but excluding the Company and any
Executive benefit plan sponsored or maintained by the Company,
including any trustee of such plan acting as trustee, who:
(1) makes a tender or exchange offer for any shares of
the Company's stock pursuant to which at least fifty percent
(50%) of the Company's stock is purchased; or
(2) together with its "affiliates" and "associates" (as
those terms are defined in Rule 12b-2 under the Act) becomes
the "beneficial owner" (within the meaning of Rule 13d-3 under
the Act) of at least fifty percent (50%) of the Company's
stock;
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(iii) Merger or Consolidation. The shareholders of the Company
approve one of the following transactions to which the Company is a
party:
(1) a merger or consolidation in which securities
possessing more than fifty percent (50%) of the total combined
voting power of the Company's outstanding securities are
transferred to a person or persons different from the persons
holding those securities immediately prior to such
transaction; or
(2) the sale, transfer or other disposition of all or
substantially all of the Company's assets in complete
liquidation or dissolution of the Company; or
(iv) Change in Board. When, during the Term of Agreement, the
individuals who, at the beginning of such period, constitute the
Board (the "Incumbent Directors") cease for any reason other than
death or retirement to constitute at least a majority thereof;
provided, however, that a director who was not a director at the
beginning of the Term of Agreement shall be deemed to have satisfied
such requirement, and be an Incumbent Director, if such director was
elected by, or on the recommendation of or with the approval of, at
least two-thirds of the directors who then qualified as Incumbent
Directors either actually, because they were directors at the
beginning of the Term of Agreement, or by prior operation of this
Section.
(c) For the purposes of this Agreement, "Good Reason" shall mean the
termination of Executive's employment by Executive within twelve (12)
months following a Change of Control on account of (i) a change in
Executive's position with the Company which materially reduces his level
of responsibility; (ii) a reduction in Executive's level of compensation
(including base salary, fringe benefits and participation in any corporate
performance based bonus or incentive programs) by more than fifteen
percent (15%); or (iii) a relocation of Executive's place of employment by
more than fifty (50) miles, provided and only if such change, reduction or
relocation is effected by the Company, without Executive's consent.
(d) For purposes of this Agreement, "Release Date" shall mean the
date on which the Release, described in Section 9, is effective, which
date shall be set forth in the Release.
(e) For purposes of this Agreement, "Retirement" shall occur at the
Executive's election, exercisable by ninety (90) days prior written
notice, at the end of any fiscal year during which or after Executive
attains age seventy (70), or age fifty-five (55) and fifteen (15) years of
continuous service.
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9. Condition of Payment of Benefits.
(a) Executive agrees that he shall be entitled to the Eighteen Month
Payment, the COBRA Payment, the Twenty-Four Month Payment and benefits
under the terms of Sections 7(d)(v) and 7(e)(ii), as applicable, only if
he timely executes a complete and general release in a form substantially
comparable to the release set forth in Exhibit A hereto and incorporated
herein by reference or in such other comparable form as is determined by
the Company in good faith to be advisable due to legitimate legal or
business needs of the Company, so long as any such changes are consistent
with the intent of this Agreement and Exhibit A. The release shall contain
a release by Executive and any beneficiary of Executive entitled to
receive all or any portion of the benefits specified in such Sections of
any claims arising from Executive's employment or association with the
Company or otherwise existing against the Company and its officers,
directors, agents, employees, shareholders, and representatives at the
time of execution of the release. Notwithstanding any other provision set
forth herein, if the Executive elects not to execute such a general
release, then Executive's entitlement to the Eighteen Month Payment, the
COBRA Payment and the Twenty-Four Month Payment, and benefits under
Sections 7(d)(v) and 7(e)(ii), as applicable, shall consist solely of an
amount equal to one-twelfth (1/12) of Executive's Base Salary in effect at
the time of the termination, which amount shall be payable in a lump sum
accordance with the regularly scheduled payroll of the Company.
(b) Notwithstanding anything to the contrary contained in this
Agreement, in the event that Section 10(d)(i) of this Agreement, to the
extent applicable pursuant to Section 10(e), is determined to be
unenforceable due to Executive's actions, to any extent, by a court or
arbitration panel, whether by preliminary or final adjudication, the
Company shall not be liable for the Eighteen Month Payment or the COBRA
Payment payable pursuant to Section 7(d)(iv).
10. Noncompetition and Nonsolicitation.
(a) Need for Covenants. Executive acknowledges that the Company has
expended, and is expected to expend, large amounts of time, money and
effort in researching, developing, designing and testing its products,
developing and keeping a committed management team. Executive acknowledges
and agrees that as an employee of the Company, he has had and will have
access to, the benefit of, and acquire a considerable amount of know-how,
confidential and proprietary information, and other valuable knowledge and
good will with respect to the business of the Company, which knowledge,
information, know-how and goodwill would be extremely detrimental to the
Company if used by Executive to compete with the Company, and Executive
agrees that the Company is entitled to be protected from the possibility,
both during and after Executive's employment terminates, of Executive
becoming associated with a business which competes with the Company.
Executive further acknowledges that if he did become associated with such
a business, such business would compete unfairly with the business of the
Company in view of the trade secrets and confidential, proprietary
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information which has and will become known to the Executive by reason of
being employed by the Company. Executive further acknowledges that the
nature of the Company's products are such that its natural market will be
worldwide because the development of drugs for the treatment of HIV/HBV
diseases can be conducted worldwide and the Company's competition in the
development of drugs for the treatment of HIV/HBV diseases is located
throughout the world and competes in a worldwide market. Accordingly,
Executive hereby agrees that the time, geographic and other restrictions
contained in this Agreement are reasonable to protect the legitimate
interests of the Company and do not unfairly restrict or penalize
Executive.
(b) Executive agrees that during his employment and, for so long of
the period after his employment terminates as he may elect to honor his
obligations under this Section 10(b) but in any event no longer than
eighteen (18) months following the termination of his employment (the
"Noncompetition Period") with the Company for any reason and by any party,
Executive will not within the Restricted Area defined below, directly or
indirectly, engage in any other business or be a consultant to or general
partner, employee, officer or director of any partnership, firm,
corporation, or other entity, or act as an agent for any of the foregoing
persons or entities, if (i) such other business, partnership, firm,
corporation, entity or person is engaged in for-profit activity in the
pharmaceutical industry within the Restricted Area, as defined below, and
competes with the Company in the field of HIV/HBV diseases or such other
field in which the Company has drug candidates in the clinical stage of
development; and (ii) Executive performs duties in the same or similar
functional area for such other business, partnership, firm, corporation,
entity or person as are substantially comparable to, those performed by
Executive at the Company; and (iii) Executive's duties are performed in
the United States.
(c) For purposes of this Agreement, "Restricted Area" means any
location within North America.
(d) Executive agrees that during the Term of Agreement and for the
Noncompetition Period, he or she will not, in the Restricted Area:
(i) encourage or solicit any employee or consultant to the
Company to leave the Company for any reason; or
(ii) solicit the business of any client or customer of the
Company (other than on behalf of the Company). However, this
obligation shall not affect any responsibility Executive may have as
an employee of the Company with respect to the bona fide hiring and
firing of Company personnel.
(e) This Section 10 shall apply only in the event that (i) the
Company terminates Executive's employment without Cause pursuant to
Section 6(c) or the Company elects not to renew this Agreement in
accordance with Section 2, and (ii) such termination or non-renewal does
not occur within twelve (12) months following a Change of
9
Control. Accordingly, this Section 10 does not apply if (i) the Company
terminates Executive's employment pursuant to Section 6(b); (ii) Executive
voluntarily terminates his employment pursuant to Section 6(c); (iii)
Executive elects not to renew this Agreement pursuant to Section 2; (iv)
Executive terminates his employment for Good Reason pursuant to Section
6(e); (v) the Company terminates Executive's employment without Cause or
elects not to renew this Agreement within twelve (12) months following a
Change of Control; or (vi) Executive terminates his employment on account
of Executive's Retirement pursuant to Section 6(d).
(f) If, for any reason, any provision of this Section 10, to the
extent applicable pursuant to Section 10(e), is determined to be
unenforceable due to Executive's actions, by a court or arbitration panel,
whether by preliminary or final adjudication, or Executive elects not to
adhere to the restrictions of Sections 10(b) or 10(d)(ii), which is his
right subject to forfeiture of his eligibility for the payments and
benefits described herein, the Company shall cease immediately payment of
the Eighteen Month Payment and the COBRA Payment payable pursuant to
Section 7(d)(iv). Executive agrees to notify the Company immediately of
his election not to adhere to Sections 10(b) or 10(d)(ii). If Executive
fails to notify the Company within thirty (30) days of making such
election, Executive shall be considered in breach of this Agreement, the
Company shall have no further obligations hereunder, and Executive shall
be required to repay to the Company all payments made for the Eighteen
Month Payment and the COBRA Payment payable pursuant to Section 7(d)(iv).
(g) The Noncompetition Period shall be extended for any period of
time in which Executive is in violation of the provisions of Section 10 or
period(s) of time required for legal action to enforce the provisions of
Section 10.
(h) Executive acknowledges and agrees that the provisions of Section
10 are reasonable and necessary to protect the legitimate business
interests of the Company, and are reasonable with respect to time and
territory.
(i) In the event the duration, scope or geographic area in Section
10 are determined to be unenforceable by a court or arbitration panel, the
parties agree that such duration, scope or geographic area shall be deemed
to be reduced to the greatest scope, duration or geographic area which
would be enforceable.
(j) The provisions of Section 10 shall be deemed severable, and the
invalidity or unenforceability of any provision (or part thereof) shall in
no way affect the validity or enforceability of any other provisions (or
remaining part thereof). Without limiting the foregoing, in the event any
of the restrictions on competition, interference, or solicitation as set
forth in Section 10 are determined to be invalid or unenforceable, the
provisions of Section 10 shall be deemed severable, and the invalidity or
unenforceability of any provision (or part thereof) shall in no way effect
the validity or enforceability of any other provision (or remaining part
thereof).
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(k) The provisions of Section 10 shall survive the termination of
this Agreement and the employment relationship between the parties.
11. Remedies. Executive acknowledges and agrees that any breach of Section
10(d)(i) of this Agreement will result in irreparable damage and continuing
injury to the Company. Therefore, in the event of any breach or threatened
breach of Section 10(d)(i) by Executive, Executive acknowledges and agrees that
the Company shall be entitled, without limiting any other available legal or
equitable remedy (whether conferred by statute or otherwise), to an injunction
to be issued by any court of competent jurisdiction enjoining and restraining
Executive from committing any violation or threatened violation of Section
10(d)(i), and Executive hereby consents to the issuance of such injunction. The
Company shall not be required to post any bond to obtain any such injunction.
Executive agrees that all remedies available to the Company by reason of a
breach of any of the foregoing provisions of this Agreement are cumulative and
that none is exclusive and that all remedies may be exercised concurrently or
consecutively at the option of the Company.
12. Arbitration. The parties agree that any and all disputes that they
have with one another which arise out of Executive's employment or under the
terms of this Agreement shall be resolved through final and binding arbitration,
as specified herein. This shall include, without limitation, disputes relating
to this Agreement, Executive's employment by the Company or the termination
thereof, claims for breach of contract or breach of the covenant of good faith
and fair dealing, and any claims of discrimination or other claims under any
federal, state or local law or regulation now in existence or hereinafter
enacted and as amended from time to time concerning in any way the subject of
Executive's employment with the Company or its termination. The only claims not
covered by this Section 12 are claims for benefits under the workers'
compensation laws or claims for unemployment insurance benefits, which will be
resolved pursuant to those laws. Binding arbitration will be conducted in
Durham, North Carolina, in accordance with the rules and regulations of the
American Arbitration Association. Each party will bear one half of the cost of
the arbitration filing and hearing fees, and the cost of the arbitrator.
Executive understands and agrees that the arbitration shall be instead of any
civil litigation and that the arbitrator's decision shall be final and binding
to the fullest extent permitted by law and enforceable by any court having
jurisdiction thereof. Notwithstanding the foregoing, the Company shall be
permitted to seek injunctive relief before any court within the State of North
Carolina for any alleged breach of Section 10(d)(i) of this Agreement.
13. Modification. No modification, amendment, or alteration of any
provision of this Agreement shall be effective unless contained in a written
agreement signed by the parties hereto, and then such modification, amendment,
or alteration shall be effective only in the specific instances and for the
specific purposes for which given.
14. Successors and Assigns. This Agreement shall bind and inure to the
benefit of the parties and their respective successors and permitted assigns.
Upon prior notice to Executive, the Company may assign this Agreement to a
wholly-owned subsidiary, "spin-off" Company, or other entity affiliated with the
Company. Executive shall not assign his rights or obligations hereunder to any
person or entity without the prior written consent of the Company.
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15. No Waiver. No delay or failure on the part of the Company in the
exercise of any right, power, or privilege under this Agreement shall impair any
such right, power, or privilege or be construed as a waiver of any default or
any acquiescence therein. No waiver shall be valid against the Company unless
made in writing and signed by it, and then only to the extent expressly
specified therein.
16. Notices. All notices and communications provided for hereunder shall
be in writing and personally delivered or sent by first-class, registered, or
certified mail, postage prepaid, and addressed as follows:
If to the Company:
Triangle Pharmaceuticals, Inc.
Attn: Director of Human Resources
4 University Place
4611 University Drive
Durham, North Carolina 27707
If to Executive:
To the Executive's last known address as shown on the Company's records.
Either party may change its address for notice purposes by notice to the other
party as specified herein.
17. Restrictive Legends. Promptly, and in any event within five (5)
business days after any request is made by or on behalf of Executive to remove
any restrictive legends on any vested shares owned by Executive, the Company
shall instruct its stock transfer agent to remove such restrictive legends,
except to the extent that such vested shares cannot be sold by Executive at the
time of such request pursuant to (i) a lock-up agreement entered into by
Executive which restricts the transfer of such shares (provided that the Company
shall promptly instruct its stock transfer agent to remove such restrictive
legends following the expiration of such lock-up period) or (ii) Rule 144 of the
Regulations under the Securities Act of 1933; provided that with respect to the
portion of such shares (if any) which Executive cannot sell pursuant to
subsection (k) of Rule 144, the Company may require such notices,
representations and other actions by or from Executive and/or his/her agents as
are customarily required and/or reasonably necessary prior to directing the
Company's stock transfer agent to remove such restrictive legends therefrom.
Solely with respect to this Section 17, reference to Executive shall include
reference to Executive's spouse, an immediate family member or other permissible
transferee, to the extent such transferee, consistent with applicable law, shall
request the removal of any restrictive legends. The provisions of this Section
shall survive any termination or expiration of this Agreement.
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18. Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of North Carolina without reference to its
conflict of law provisions, and any legal action brought by the parties related
to this Agreement shall be brought in Durham County, North Carolina.
19. Severability. If any provision or part thereof contained in this
Agreement shall be invalid or unenforceable under applicable law, that provision
or part thereof shall be ineffective to the extent of such invalidity only,
without in any way affecting the remainder of this Agreement.
20. Entire Agreement. This Agreement with attachments constitutes the
entire understanding of the parties with respect to the subject matter hereof.
This Agreement supersedes any and all other understandings and agreements,
either oral or in writing, between the parties hereto with respect to the
subject matter hereof and constitutes the sole and only Agreement between the
parties with respect to said subject matter. Each party to this Agreement
acknowledges that no representations, inducements, promises or agreements, oral
or otherwise, have been made by any party or by anyone acting on behalf of any
party, which are not embodied herein, and that no agreement, statement or
promise not contained in this Agreement shall be valid or binding or of any
force or effect. Notwithstanding the foregoing, Executive will adhere to and
honor all obligations to the Company as described in the Proprietary Information
and Inventions Agreement dated (_______), except that the provisions of Section
3(h) and 3(i) of said agreement are superseded, and any agreement providing for
the award of stock options and/or restricted stock to which Executive is a
party.
21. Duplication. If a benefit promised herein is otherwise provided by the
terms of a plan or policy sponsored by the Company on account of the same event
giving rise to the benefit under this Agreement, nothing herein shall be
construed to entitle Executive to duplicate benefits; however, if the terms of
this Agreement provide for an enhanced benefit, Executive shall be entitled to
the incremental benefit hereunder whether under the plan or policy or by direct
payments from the Company.
22. Withholding. All payments made hereunder shall be less taxes and
applicable withholdings.
23. Gender. The use of the masculine gender is for convenience only and
shall be deemed to refer to the applicable gender.
24. Survival. The provisions of Sections 9 through 24 shall survive the
termination of this Agreement and the termination of Executive's employment.
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IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first above written.
TRIANGLE PHARMACEUTICALS, INC.
ATTEST:
By:
- ------------------ ---------------------------
- ------------------, Secretary Authorized Officer
[Corporate Seal]
EXECUTIVE
(SEAL)
----------------------
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