EXHIBIT 10.40.1
May 5, 1997
Robert L. Capizzi, M.D.
100 Turnbridge Circle
Haverford, PA 19041
Re: AGREEMENT DATED AS OF MARCH 4, 1996 (THE "AGREEMENT")
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Dear Dr Capizzi:
The purpose of this letter is to confirm our arrangements to extend your
consulting relationship with U.S. Bioscience by modifying the Agreement in
certain respects, as follows. All capitalized terms used herein are used as
defined in the Agreement.
As provided in the Agreement, your Term as an employee and Senior Scientific
Advisor would terminate at the close of business on May 31, 1997. We are very
pleased that you have agreed to continue to serve as a consultant to U.S.
Bioscience from May 31, 1997 through May 31, 1998 (the "Consulting Term"), which
Consulting Term may be extended by mutual agreement of the parties, under the
following terms and conditions:
(a) All of the stock options granted to you by U.S. Bioscience on or
before February 21, 1995 will continue to vest during the Consulting
Term, and you will be entitled to exercise (including cashless
exercise) these options, to the extent vested, during the Consulting
Term and for a period of three months thereafter. The options granted
to you on March 11, 1996 will continue to vest and will remain
exercisable in accordance with the terms set forth in the Non-
Statutory Stock Option dated March 11, 1996.
(b) At all times during the Consulting Term when you are also a director
of U.S. Bioscience, you will have the same rights as a director of
U.S. Bioscience as those afforded, from time to time, to the other
directors. For purposes of determining your eligibility for annual
director's fees payable to non-employee directors, or options in lieu
thereof under the 1996 Non-employee Directors Stock Option Plan, you
will be considered to be a non-employee director of U.S. Bioscience
from and after the date of May 31, 1997.
(c) You will provide at the request of U.S. Bioscience consulting services
during the Consulting Term. The parties acknowledge that it is
difficult to predict with
Robert L. Capizzi, M.D.
May 5, 1997
Page 2
precision the exact number of hours of consulting services that will be
requested and provided under this Agreement, however, you shall be
required to provide at least 40 hours of consulting services per year
hereunder. Such consulting services may include, but shall not be
limited to: (i) speaking on behalf of U.S. Bioscience or its products;
(ii) assistance in addressing clinical or preclinical questions; (iii)
assistance in preparing position papers; (iv) contacting potential
investigators on behalf of U.S. Bioscience and assisting in study
design; and (v) assisting U.S. Bioscience to assign, obtain, maintain
and enforce proprietary rights relating to inventions conceived or
reduced to practice during your employment with U.S. Bioscience which
relate to any of its products, services or activities. U.S. Bioscience
will make reasonable efforts to provide you with advance notice when
requesting your services and you will make reasonable efforts to adapt
your schedule to comply with U.S. Bioscience's reasonable requests.
Certain of the consulting services may be performed by telephone and/or
by written communication and other such services may require your
presence, whether at U.S. Bioscience's facilities, potential
investigators' facilities, meeting with regulatory authorities,
professional meetings, meetings arranged by commercial partners, or
otherwise. It is expressly understood and agreed that during the
Consulting Term you may be employed on a full-time basis. You represent
to U.S. Bioscience that the terms of this letter do not, and will not,
conflict with the terms of any of your employment or consulting
arrangements. Consulting services in excess of 80 hours per year during
the Consulting Term shall be compensated at a rate to be mutually
agreed by the parties. U.S. Bioscience shall advance to you or
reimburse promptly all reasonable 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 your representation of U.S. Bioscience at conferences
and professional meetings. It is understood that such expenses shall be
subject to written approval in advance by U.S. Bioscience.
(d) In rendering consulting services hereunder, you will make appropriate
disclosure to third parties (e.g., IRB's, potential investigators,
research subjects, regulatory authorities, professionals) of all
financial ties and relationships between you and U.S. Bioscience. You
also agree to make appropriate disclosure in connection with any of
your publications which relate to any U.S. Bioscience compound.
(e) You will comply with federal securities laws and regulations with
respect to transactions in U.S. Bioscience securities, as well as the
procedures and practices
Robert L. Capizzi, M.D.
May 5, 1997
Page 3
set forth in the U.S. Bioscience Securities Law Guidebook, as amended
from time to time.
(f) The parties confirm that at the termination of your Term as an
employee, May 31, 1997, you shall no longer be eligible to receive the
benefits set forth in the Agreement under Section 2(a), 2(c) or 2(d).
Except as modified by this letter, the parties agree that the Agreement is
confirmed to be and shall remain in full force and effect.
Please indicate your acceptance of the terms set forth in this letter in the
space provided below and return it to me. An additional executed copy of this
letter is enclosed for your file.
Sincerely yours,
U.S. Bioscience, Inc.
By: /s/ Philip S. Schein
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Philip S. Schein, M.D.
Chairman and Chief Executive Officer
Accepted and agreed as of the 8th day of May, 1997:
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/s/ Robert L. Capizzi
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Robert L. Capizzi, M.D.