EXHIBIT 10.71
CORTEX PHARMACEUTICALS, INC.
15241 Barranca Parkway
Irvine, California 92718
June 5, 1995
Gary A. Rogers, Ph.D.
108 Aero Camino, B5
Goleta, California 93117
Dear Gary:
I am pleased to offer you employment with Cortex Pharmaceuticals, Inc.
("Company") on the following terms and conditions:
1. Your title will be Vice President, Pharmaceutical Discovery, and you
will report to the Chief Executive Officer of the Company. Your duties and
responsibilities will principally include responsibility for medicinal
chemistry, providing input into other scientific areas and such other matters as
the Company may assign to you. Your employment will begin on a mutually agreed
date, but in no event later than June 8, 1995. You will be a full time employee
but may, at your option, choose to work at the Company's facilities four days
per week until you relocate your primary residence from Santa Barbara. Until
such time, the Company will reimburse your actual expenses incurred in
maintaining laboratory facilities in Santa Barbara for your use on Company
projects, up to a maximum of $18,000 per year. All developments made in such
laboratories by you or others at such facility shall be considered developed in
the course of your employment and shall be subject to the Company's invention
assignment agreement.
During the term of your employment, you may collaborate with scientists in
academic institutions on non-Company matters, provided (i) you provide written
notice to the Chief Executive Officer of the Company, (ii) such activities do
not interfere with your duties of the Company, and (iii) such activities do not
involve more than an insubstantial amount of Company resources.
2. You will receive a base annual salary of $115,000, paid in accordance
with the Company's normal payroll practices. You will also be entitled to
vacation, coverage under the Company's Group Health Plan, and other benefits
that the Company provides to comparable employees. You will also be eligible to
receive bonus of between 10% and 30% of your annual base salary depending upon
achievement of pre-determined milestones relating to the progression of drug
candidates through the development process, including without limitation,
applications or issuances of patents, and achievement of clinical trials and
regulatory clearances.
Gary A Rogers, Ph.D.
June 5, 1995
Page 2
3. In addition, you will be eligible to receive bonuses as follows:
In the event any new AMPA receptor targeted or AMPA ligand compound
developed by you or under your supervision is the subject of a patent or patent
application that is assigned to the Company, (hereafter, a "New Compound") and
where such compound is not subject to (or claimed by third parties to be subject
to) substantive patent or other rights of third parties, including the
University of California, the Company shall pay to you bonuses with respect to
each such compound as set forth below.
(a) If the patent or patent application covers, and the clinical
trials relate to, the enhancement of memory and/or cognition:
(i) On successful completion of $50,000
Phase III clinical trials in the
U.S. or equivalent in a Foreign
Equivalent Country*
(ii) On approval of New Drug $75,000
Application ("NDA") in the
U.S. or equivalent in a Foreign
Equivalent Country*
(b) If the patent covers medical indications other than the
enhancement of memory and/or cognition:
(i) On successful completion $20,000-50,000**
of Phase III clinical trials
in the U.S. or equivalent in a
Foreign Equivalent Country*
(ii) On approval of NDA in the U.S. $35,000-75,000**
or equivalent in a Foreign
Equivalent Country*
* Foreign Equivalent Country is defined in Exhibit A.
** The exact amounts of the bonus payments will be determined by the
Company based upon the potential market size for the New Compound, according to
the guidelines set forth as Exhibit A hereto.
In order to receive the full amount of the additional bonuses for a New
Compound as set forth in this Section 3, you must be employed continuously by
the Company from the date of your discovery of the utility of the New Compound
for the indication set forth in Section 3(a) or 3(b). If you are not
continuously employed, the bonus payable shall equal the full amount multiplied
by a fraction, the numerator of which is the number of months from your
discovery of the utility of the
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Gary A. Rogers, Ph.D.
June 5, 1995
Page 3
New Compound until the termination of your employment, and the denominator of
which is the number of months from your discovery of the utility of the New
Compound to the date of the event giving rise to the bonus payment; provided,
however, such fraction shall not be less than one-half (1/2).
4. (a) In the event any New Compound is commercialized by or for the
benefit of the Company, or a licensee of the Company, the Company or the
licensee shall pay to you royalties equal to one percent (1%) (subject to
adjustment as set forth in Section 4(c) and Section 4(d) below) of Net Sales (as
defined in Section 4(b) below) of each Product (as defined in Section 4(b)
below) by the Company or its licensee. The Company's obligation to pay such
royalties with respect to a Product shall terminate at such time as there are no
patents giving rise to such royalty obligation remaining enforceable.
(b) For purposes hereof, "Product" meets any form or dosage of a
pharmaceutical agent which includes the New Compound. For purposes hereof, "Net
Sales" shall mean: the amount billed by the Company or its assignee or licensee
for sales of Product to an independent third party less: (i) discounts,
including cash discounts or rebates, retroactive price reductions or allowances
actually allowed or granted from the billed amount, (ii) credits or allowances
actually granted upon claims, rejections or returns of Product, including
recalls, regardless of the party requesting such, (iii) freight, postage,
shipping and insurance charges paid for delivery of Product, to the extent
billed, and (iv) taxes, duties or other governmental charges levied on or
measured by the billing amount when included in billing. In the event that
Product is sold in the form of a combination Product containing one or more
active ingredients, Net Sales for such combination Product will be calculated by
multiplying actual Net Sales by the fraction A/(A+B) where A is the fair market
value of the portion of the combination Product that contains the compound and B
is the fair market value of the other active ingredients included in such
combination Product, as determined by market prices of such portions if
separately priced and sold, or if not so priced and sold, as determined by
mutual agreement. Commencing with the year in which Product is first sold, the
Company will direct its independent auditors to prepare a good-faith estimate of
Net Sales, as defined hereunder, for each fiscal year and to provide a copy of
such estimate to Consultant. In preparing such estimate, the Company's
independent auditors may rely upon sales information provided to the Company by
sublicensees of the Company.
(c) In the event the Company markets a Product containing a New
Compound and the Company is obligated to pay a royalty (or other fee based on
sales) to a third party for additional rights to market such New Compound
("Third Party Royalty"), the royalty payable under Section 4(a) above on Net
Sales subject to such Third Party Royalty shall be reduced to the percentage of
Net Sales determined by multiplying one percent (1%) by the fraction (6% - x)/6%
where x represents the Third Party Royalty, expressed as a percentage of Net
Sales.
(d) In the event the Company licenses a New Compound to any licensee,
and is obligated to pay a portion of the royalty proceeds received from such
licensee ("Sublicense Royalty Proceeds") to a third party for additional rights
to license such New Compound (the "Third Party Portion"), the royalty payable
under Section 4(a) above on Net Sales subject to such license shall be reduced
to the percentage of Net Sales determined by multiplying one percent (1%) by the
fraction
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Gary A. Rogers, Ph.D.
Jne 5, 1995
Page 4
(30% - y/30%) where y represents the Third Party Portion expressed as a
percentage of the Sublicense Royalty Proceeds.
5. The Company will reimburse your actual moving expenses in connection
with the relocation of your principal residence from Santa Barbara County to
Orange County. Reimbursable expenses will be escrow fees and real estate filing
fees for the sale of your existing residence and the purchase of a new
residence, 50% of the real estate commissions paid by you in connection with the
sale of your existing residence, and any other expenses permitted as deductions
under the Internal Revenue Code. In addition, the Company will reimburse you up
to $750 per month for your documented temporary living expenses in Orange County
until the earlier of (i) the relocation of your principal residence to Orange
County, (ii) the completion by the Company of a financing or corporate
partnering transaction in excess of $12,000,000, or (iii) 18 months from your
commencement of employment.
6. As an employee of the Company you will be entitled to participate in
the Company's option plans. In connection with your employment, you will be
granted an option to purchase 60,000 shares of the Company's Common Stock with
an exercise price equal to the fair market value on the date of commencement of
your employment. Such options shall have the 10 year term and shall vest ratably
over 5 years.
7. Concurrently with your employment, your Consulting Agreement with the
Company dated May 2, 1994, shall be terminated; provided, however, that (i)
Section 3(e) and Section 3(f) regarding milestone and royalty payments shall
continue with respect to any new compound described in Section 3(e) thereof
which has been disclosed to the Company prior to June 7, 1995 (including the
following: GR120, LiD 19 and LiD 37), (ii) the Company's obligation to pay
royalties pursuant to Section 3(f) thereof with respect to a Product (as defined
in Section 3(f) thereof) shall terminate at such time as there are no patents
giving rise to such royalty obligation remaining enforceable, and (iii) the
rights to receive royalties under Section 3(f) thereof shall continue upon your
death and be payable to your successors by will or the laws of descent and
distribution. You shall be entitled to retain any monthly consulting fee which
has been paid in advance pursuant to Section 3(a) of the Consulting Agreement.
Promptly after such termination you shall (i) invoice the Company for any
expense reimbursements pursuant to Section 3(c) of the Consulting Agreement and
(ii) convey title to, and deliver if requested, any equipment for which the
Company advanced funds to you under Section 3(d) of the Consulting Agreement, in
consideration of the cancellation of any promissory notes which you executed in
favor of the Company with respect thereto.
8. The Company is an at-will employer, and cannot guarantee employment
for any specific duration. Your employment may be terminated, or the terms
thereof changed, at any time, with or without cause, by the Company. However, if
the Company is acquired while you are employed, prior to June 30, 1997, your
employment shall continue on the terms set forth herein for a period of eighteen
(18) months from the date of such acquisition. For purposes hereof, an
acquisition of the Company shall mean the merger, sale of all or substantially
all of the Company's assets, or the purchase of fifty percent (50%) or more of
the Company's capital stock in a single transaction or series of related
transactions, or other reorganization, in which the Company is not the surviving
corporation or which results in another person or entity (or an affiliated
group) owning fifty percent
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Gary A. Rogers Ph.D.
June 5, 1995
Page 5
(50%) or more of the Company's capital stock. This provision can only be changed
or revoked in a formal written contract signed by the Chief Executive Officer
and by you.
9. You agree to abide by the Company's policies and procedures, including
those set forth in the Employee Handbook. On commencement, you will be required
to sign the receipt on the last page of the Handbook.
10. You will be required to provide proof of your identity and
authorization to work in the United States as required by federal immigration
laws.
11. You will be required to sign the Company's invention assignment and
confidentiality agreement, as they may be changed from time to time as well as
the necessary tax and benefit enrollment forms before starting employment.
12. This letter contains the sole and entire agreement between us with
respect to the subject matter hereof. No representations, oral or otherwise,
express or implied, other than those contained herein, have been relied upon by
you.
13. You may not assign your rights, obligations or duties hereunder
without the express written consent of the Company. The right, obligations and
duties of the Company shall inure to the benefit and be binding upon any
successors of the Company by way of merger, consolidation, transfer of all or
substantially all of the assets of the Company, or otherwise, and any transferee
of all of the Company's rights in any New Compound (with respect to such New
Compound).
To confirm that you agree to the terms stated in this letter, please sign
and date the enclosed copy of this letter and return it to me no later than June
8, 1995. I welcome you to the Company, and I wish you success in your
employment.
Very truly yours,
/s/ Alan A. Steigrod
---------------------------
Alan A. Steigrod
I agree to the terms stated in this letter.
Dated: June 5, 1995
/s/ Gary A. Rogers, Ph.D.
- --------------------------
Gary A. Rogers, Ph.D.
5
EXHIBIT A
MARKET POTENTIAL FOR DETERMINATION
OF BONUS PAYMENTS UNDER SECTION 3 FOR
NON-COGNITION ENHANCER COMPOUNDS
(Market potential is the dollar amount of global product sales forecast for year
four)
====================================================================================================================
Milestone Market Potential ($ million)
=====================================================================================
Less than 100 100 to 250 More than 250
- --------------------------------------------------------------------------------------------------------------------
On successful completion of $20,000 $37,500 $50,000
Phase III clinical trials in
the U.S. or equivalent in a
Foreign Equivalent Country
- --------------------------------------------------------------------------------------------------------------------
Approval of NDA or equivalent $35,000 $55,000 $75,000
====================================================================================================================
Foreign Equivalent Country shall mean France, Italy, Great Britain, Germany and
Japan.