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Exhibit 10.7
________________________________________________________________________________
________________________________________________________________________________
EMISPHERE TECHNOLOGIES, INC.
Employment Agreement for Michael M. Goldberg, M.D.
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EMISPHERE TECHNOLOGIES, INC.
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Employment Agreement for Michael M. Goldberg, M.D.
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Page
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<S> <C>
1. Definitions..................................................................................... 1
2. Term of Employment.............................................................................. 2
3. Position, Duties and Responsibilities........................................................... 2
4. Base Salary..................................................................................... 3
5. Annual Incentive Awards......................................................................... 3
6. Long-Term Stock Incentive Programs.............................................................. 3
7. Employee Benefit Programs....................................................................... 4
8. Inventions...................................................................................... 4
9. Reimbursement of Business and Other Expenses.................................................... 4
10. Termination of Employment....................................................................... 5
11 Confidentiality; Cooperation with Regard to Litigation; Non-disparagement....................... 14
12. Non-competition................................................................................. 15
13. Non-solicitation/Non-interference............................................................... 16
14. Remedies........................................................................................ 16
15. Resolution of Disputes.......................................................................... 16
16. Indemnification................................................................................. 17
17. Excise Tax Gross-Up............................................................................. 17
18. Effect of Agreement on Other Benefits........................................................... 19
19. Assignability; Binding Nature................................................................... 20
20. Representation.................................................................................. 20
21. Entire Agreement................................................................................ 20
22. Amendment or Waiver............................................................................. 20
23. Severability.................................................................................... 20
24. Survivorship.................................................................................... 21
25. Beneficiaries/References........................................................................ 21
</TABLE>
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<TABLE>
Page
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<S> <C>
26. Governing Law/Jurisdiction...................................................................... 21
27. Notices......................................................................................... 21
28. Headings........................................................................................ 21
29. Counterparts.................................................................................... 22
</TABLE>
<PAGE>
EMPLOYMENT AGREEMENT
--------------------
AGREEMENT, made and entered into as of the 31st day of July, 2000 by
and between Emisphere Technologies, Inc., a Delaware corporation with principal
offices at 765 Old Saw Mill River Road, Tarrytown, New York 10591 (together with
its successors and assigns, the "Company" or Emisphere, and Michael M. Goldberg,
M.D. (the "Executive").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Emisphere desires to employ Executive pursuant to an agreement
embodying the terms of such employment (this "Agreement") and Executive desires
to enter into this Agreement and to accept such employment, subject to the terms
and provisions of this Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the receipt of
which is mutually acknowledged, Emisphere and Executive (individually a "Party"
and together the "Parties") agree as follows:
1. Definitions.
-----------
(a) "Additional Option Grant" shall have the meaning set forth
in Section 6(c).
(b) "Base Salary" shall have the meaning set forth in Section 4.
(c) "Board" shall have the meaning set forth in Section 3(a).
(d) "Cause" shall have the meaning set forth in Section 10(b).
(e) "Change in Control" shall have the meaning set forth in
Section 10(c).
(f) "Committee" shall have the meaning set forth in Section 4.
(g) "Confidential Information" shall have the meaning set forth
in Section 11(c).
(h) "Effective Date" shall have the meaning set forth in Section
2(a).
(i) "Monthly Continuation Payments" shall have the meaning set
forth in Section 10(c).
(j) "Original Term of Employment" shall have the meaning set
forth in Section 2(a).
(k) "Renewal Term" shall have the meaning set forth in Section
2(a).
(l) "Restriction Period" shall have the meaning set forth in
Section 12(b).
(m) "Severance Period" shall have the meaning set forth in
Section 10(c)(ii) below, except as provided otherwise in
Section 10(e).
(n) "Subsidiary" shall have the meaning set forth in Section
11(d).
<PAGE>
(o) "Term" shall have the meaning set forth in Section 2(a).
(p) "Termination by Executive for Good Reason" shall have the
meaning set forth in Section 10(c).
(q) "Termination Without Cause" shall have the meaning set forth
in Section 10(c).
2. Term of Employment.
------------------
(a) The term of Executive's employment under this Agreement
shall commence on the date of this Agreement (the "Effective Date") and end on
the third anniversary of such date (the "Original Term"), unless terminated
earlier in accordance herewith or extended in accordance with Section 2(b)
below. The Original Term shall be automatically renewed for successive one-year
terms (the "Renewal Terms") unless at least 180 days prior to the expiration of
the Original Term or any Renewal Term, either Party notifies the other Party in
writing that he or it is electing to terminate this Agreement at the expiration
of the then current Term. "Term" shall mean the Original Term and all Renewal
Terms. If a Change in Control shall have occurred during the Term,
notwithstanding any other provision of this Section 2(a), the Term shall not
expire earlier than two years after such Change in Control.
(b) Upon shareholder approval of the Additional Option Grant
(as defined below), the Original Term shall be extended by 24 months, and the
Original Term shall be scheduled to end on the fifth anniversary of the
Effective Date, subject to the provisions of Section 2(a) above.
3. Position, Duties and Responsibilities.
-------------------------------------
(a) Generally. Executive shall serve as the Chairman of the
---------
Board of Directors (the "Board") and Chief Executive Officer ("CEO") of
Emisphere. For so long as he is serving on the Board, Executive agrees to serve
on any Board committee to which he is elected. In any and all such capacities,
Executive shall report solely to the Board. Executive shall have and perform
such duties, responsibilities, and authorities as are customary for the Chairman
and CEO of corporations of similar size and businesses as Emisphere as they each
may exist from time to time and as are consistent with such positions and
status. Executive shall devote substantially all of his business time and
attention (except for periods of vacation or absence due to illness), and his
best efforts, abilities, experience, and talent to the positions of Chairman and
CEO of Emisphere.
(b) Other Activities. Anything herein to the contrary
----------------
notwithstanding, nothing in this Agreement shall preclude Executive from (i)
serving on the boards of directors of a
2
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reasonable number of other corporations, trade associations and/or charitable
organizations, (ii) engaging in charitable activities and community affairs, and
(iii) managing his personal investments and affairs, provided that such
-------- ----
activities do not materially interfere with the proper performance of his duties
and responsibilities under this Agreement.
(c) Place of Employment. Executive's principal place of
-------------------
employment shall be at Emisphere's corporate offices.
4. Base Salary.
-----------
Executive shall be paid an annualized salary ("Base Salary"),
payable in accordance with Emisphere's regular payroll practices, of not less
than $415,000, subject to review for increase on an annual basis. Executive
shall receive an annual increase of no less than six (6%) percent for each year
Executive is employed by Emisphere or otherwise receiving payments hereunder.
Larger increases may be determined at the discretion of the Board's Compensation
Committee (the "Committee").
5. Annual Incentive Awards.
-----------------------
Executive will be eligible to participate in Emisphere's annual
incentive compensation plan (if established by the Board at its discretion)
based on Emisphere's performance against performance objectives established
within the first 90 days of each fiscal year, as determined by the Committee.
Nothing in this Section 5 will guarantee to Executive any specific amount of
incentive compensation. Payment of annual incentive awards shall be made to
Executive by Emisphere at the same time that other senior-level executives
receive their annual incentive awards.
6. Long-Term Incentive Programs.
----------------------------
(a) Executive shall be eligible to participate in Emisphere's
long-term incentive compensation programs (including stock options and stock
grants).
(b) On the Effective Date, Executive shall receive a grant of
non-qualified options to purchase 480,000 shares of Emisphere common stock
("Option Grant"). The Option Grant shall be made at the fair market value of
Emisphere's common stock on the Effective Date, and shall be governed by the
terms and conditions of the accompanying grant agreement.
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(c) In the event that Emisphere's shareholders approve
additional shares which allow the Board or Committee to grant additional options
under Emisphere's stock option plans, Executive shall be entitled to receive a
grant of non-qualified options to purchase 320,000 shares of Emisphere common
stock ("Additional Option Grant") such grant to be made at the fair market value
of Emisphere's common stock on the grant date, and which grant is governed by
the terms and conditions of the accompanying grant agreement.
7. Employee Benefit Programs.
-------------------------
(a) General Benefits. During the Term, Executive shall be
----------------
entitled to participate in such employee pension and welfare benefit plans and
programs of Emisphere as are made available to Emisphere's senior-level
executives or to its employees generally, as such plans or programs may be in
effect from time to time, including without limitation, each of the following:
health, medical, dental, long-term disability, travel accident and life
insurance plans.
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(b) Vacation. Executive shall be entitled to six weeks of
--------
vacation for each year he is employed with Emisphere and to a reasonable number
of other days off for religious and personal reasons.
8. Inventions.
----------
(a) If at any time during the Term, Executive shall invent,
discover, or devise, either by himself or jointly with any other person, any
invention, design, idea or any other form of intangible property (together
"Invention") which relates to, or is connected or capable of being utilized,
directly or indirectly, in connection with any trade or business being conducted
at the time by Emisphere or any Subsidiary or affiliate, the Invention shall, to
the extent of Executive's entire interest, be the sole property of Emisphere,
and Emisphere shall have the exclusive right to use, adapt or patent (or not to
do so) the same, as determined by Emisphere in its sole and absolute discretion.
Executive shall immediately communicate to Emisphere the full details of any
such Invention and if Emisphere applies for a patent in respect of such
Invention, it shall make the patent application in the joint names of Emisphere
and Executive and Executive shall concur in applying for such Invention patent,
and, at Emisphere's sole expense, shall prepare all necessary specifications and
drawings and give every assistance in Executive's power to procure the patent
grant. Executive's interest in any such patent when granted shall be
unconditionally and irrevocably assigned to Emisphere.
(b) Executive shall, both during and after the Term, at
Emisphere's request and sole expense, do all reasonable acts and things and
shall execute all documents that Emisphere may consider necessary or desirable
to make such Invention available to Emisphere and to perfect and defend
Emisphere's title to the Invention, and Executive irrevocably appoints Emisphere
as his attorney and agent and in his name and/or on his behalf to sign, execute
or otherwise complete any deed or document and to do all acts and things that
Emisphere may consider necessary or expedient for purposes of this Section 8.
9. Reimbursement of Business and Other Expenses.
--------------------------------------------
(a) Generally. Executive is authorized to incur reasonable
---------
expenses in carrying out his duties and responsibilities under this Agreement,
and Emisphere shall promptly reimburse him for all business expenses incurred in
connection therewith, subject to documentation in accordance with Emisphere's
applicable policies.
(b) Financial. During the Term, Emisphere shall reimburse
---------
Executive, upon demand, for out-of-pocket expenses incurred in connection with
personal financial planning and tax preparation up to a maximum of $15,000 per
annum.
5
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(c) Automobile. During the Term, Emisphere shall pay or
----------
reimburse Executive for the expenses of Executive's automobile up to a maximum
of $1,000 a month.
(d) Life Insurance. During the Term, Emisphere shall pay on
--------------
Executive's behalf, or reimburse Executive for, $50,000 per annum towards life
insurance coverage.
10. Termination of Employment.
-------------------------
(a) Termination Due to Executive's Death or Disability. In the
--------------------------------------------------
event Executive's employment with Emisphere is terminated due to his death or
Disability, Executive, his estate or his beneficiaries, as the case may be,
shall be entitled to and their sole remedies under this Agreement shall be:
(i) Base Salary through the date of death or date of
termination of Executive's employment by Emisphere
("Termination Date") for Disability, payable in a cash
lump sum no later than 15 days following the
Termination Date;
(ii) pro rata annual incentive award (if any) for the year
in which Executive's death or termination for
Disability occurs, as determined by the Committee in
good faith at the conclusion of the fiscal year in
which Executive dies or is terminated for Disability,
payable in a cash lump sum no later than 15 days after
such determination;
(iii) the balance of any incentive awards (if any) earned as
of December 31 of the prior year (but not yet paid),
payable in a cash lump sum no later than 15 days
following the Termination Date;
(iv) settlement of all deferred compensation arrangements
in accordance with any then applicable deferred
compensation plan or election form; and
(v) other or additional benefits then due or earned in
accordance with applicable plans and programs of
Emisphere.
For purposes of this Section 10(a), the term "Disability" means
any illness or incapacity which prohibits Executive from rendering services of
the character as contemplated hereunder (i) for a period of 180 consecutive
days, or (ii) which is expected to result in Executive's death or be of
indefinite duration.
6
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(b) Termination by Emisphere for Cause.
----------------------------------
(i) "Cause" shall mean:
(A) Executive's refusal or failure to carry out
specific Board directive(s) which are of a
material nature and consistent with his status as
Chairman and CEO;
(B) Executive's refusal or failure to perform a
material part of his duties hereunder;
(C) the commission by Executive of a material breach
of this Agreement;
(D) Executive is convicted of any felony involving an
act of moral turpitude;
(E) Executive commits a fraudulent or dishonest act in
his relations with Emisphere or its subsidiaries
or affiliates ("dishonest" for this purpose means
Executive's knowing or reckless material statement
or omission for his own benefit).
(ii) A termination for Cause shall not take effect unless
the provisions of this paragraph (ii) are complied
with. Executive shall be given written notice by
Emisphere of its intention to terminate him for Cause,
such notice (A) to state in detail the particular act
or acts or failure or failures to act that constitute
the grounds on which the proposed termination for Cause
is based and (B) to be given within 90 days of
Emisphere's learning of such act or acts or failure or
failures to act. Executive shall have 5 days after the
date that such written notice has been given to him in
which to cure such conduct, to the extent such cure is
possible. If he fails to cure such conduct, Executive
shall then be entitled to appear at a special hearing
before the Board that is held for the purpose of
determining whether Cause exists. Such hearing shall be
held within 25 days of such notice to Executive,
provided he requests such hearing within 10 days of the
written notice from Emisphere stating its intention to
terminate him for Cause. If, within five (5) days
following such hearing, Executive is furnished written
notice by the Board
7
<PAGE>
confirming that, in its good faith judgment, grounds
for Cause on the basis of the original notice exist, he
shall thereupon be terminated for Cause.
(iii) In the event Emisphere terminates Executive's
employment for Cause, he shall be entitled to and his
sole remedies under this Agreement shall be:
(A) Base Salary through the Termination Date, payable
in a cash lump sum no later than 15 days following
the Termination Date;
(B) the balance of any incentive awards earned as of
December 31 of the prior year (but not yet paid),
payable in a cash lump sum no later than 15 days
following the Termination Date;
(C) settlement of all deferred compensation
arrangements in accordance with any then
applicable deferred compensation plan or election
form; and
(D) other or additional benefits then due or earned in
accordance with Emisphere's applicable plans or
programs.
(c) Termination Without Cause or by Executive for Good Reason
---------------------------------------------------------
Prior to Change in Control. In the event Executive's employment with Emisphere
--------------------------
is terminated without Cause (which termination shall be effective as of the date
specified by Emisphere in a written notice to Executive), other than due to
Executive's death or Disability, or in the event Executive terminates his
employment for Good Reason (as defined below), in either case prior to a Change
in Control (as defined below) Executive shall be entitled to and his sole
remedies under this Agreement shall be:
(i) Base Salary through the Termination Date, payable in a
cash lump sum no later than 15 days following such
date;
(ii) pro rata annual incentive award (if any) for the year
in which the termination occurs (as determined by the
Committee in good faith), such amount payable in a cash
lump sum no later than 15 days following the
Termination Date;
8
<PAGE>
(iii) the balance of any incentive awards earned as of
December 31 of the prior year (but not yet paid),
payable in a cash lump sum no later than 15 days
following the Termination Date;
(iv) the sum of Executive's (A) Base Salary, at the
annualized rate in effect on the Termination Date (or
in the event a reduction in Base Salary is a basis for
a Termination by Executive for Good Reason, then the
Base Salary in effect immediately prior to such
reduction), and (B) Executive's target annual incentive
(if any), such sum divided by 12 ("Monthly Continuation
Payments") and which Monthly Continuation Payments are
to be paid to Executive for a period of 24 months (the
"Severance Period");
(v) any outstanding stock options which are unvested shall
vest and Executive shall have the right to exercise any
vested stock options during the Severance Period or for
the remainder of the exercise period;
(vi) elimination of all restrictions on any restricted or
deferred stock awards outstanding at the time of
termination of employment;
(vii) settlement of all deferred compensation arrangements in
accordance with any then applicable deferred
compensation plan or election form;
(viii) continued participation in all medical, health and life
insurance plans at the same benefit level at which he
was participating on the date of the termination of his
employment until the earlier of:
(A) the end of the Severance Period; or
(B) the date, or dates, he receives equivalent
coverage and benefits under the plans and programs
of a subsequent employer (such coverage and
benefits to be determined on a coverage-by-
coverage, or benefit-by-benefit, basis); provided
that (1) if Executive is precluded from continuing
his participation in any employee benefit plan or
program as provided in this clause (viii) of this
Section 10(c), he shall receive cash payments
equal on an after-tax basis to the cost to him of
obtaining the benefits provided under the plan or
program in which he is unable to participate for
the period
9
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specified in this clause (viii) of this Section
10(c), (2) such cost shall be deemed to be the
lowest reasonable cost that would be incurred by
Executive in obtaining such benefit himself on an
individual basis, and (3) payment of such amounts
shall be made quarterly in advance; and
(ix) other or additional benefits then due or earned in
accordance with applicable plans and programs of
Emisphere.
"Termination Without Cause" shall mean Emisphere terminates
Executive's employment for any reason other than Cause (as defined in Section
10(b)) or due to Executive's death or Disability.
"Termination by Executive for Good Reason" shall mean Executive's
termination of his employment as provided in this Section 10(c) following the
occurrence, without Executive's written consent, of one or more of the following
events (except as a result of a prior termination):
(A) a material diminution or change, adverse to
Executive, in Executive's positions, titles, or
offices as set forth in Section 3(a), status,
rank, nature of responsibilities, or authority
within Emisphere, or a removal of Executive from
or any failure to elect or re-elect or, as the
case may be, nominate Executive to any such
positions or offices, including as a member of the
Board after delivery of written notice to the
Board by Executive and 5 days to cure;
(B) an assignment of any duties to Executive which are
inconsistent with his status as Chairman and CEO
of Emisphere and other positions held under
Section 3(a) or any adverse change in Executive's
reporting relationships;
(C) any decrease in Executive's annual Base Salary (or
any failure to increase Executive's Base Salary on
an annual basis as provided for in Section 4) or
annual incentive opportunity (if any);
(D) any other failure by Emisphere to perform any
material obligation under, or breach by Emisphere
of any material provision of, this Agreement that
is not cured within 5 days of Emisphere's receipt
of written notice from Executive;
10
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(E) a relocation of Executive to a location outside a
30-mile radius of Emisphere's corporate offices in
Tarrytown, New York;
(F) any failure to secure the agreement of any
successor corporation or other entity to Emisphere
to fully assume Emisphere's obligations under this
Agreement;
(G) upon (i) Emisphere commencing any case under any
bankruptcy or insolvency law or (ii) such case
shall be commenced against Emisphere, and such
case remains undischarged, undismissed or unended
for a period of sixty (60) days.
A "Change in Control" shall be deemed to have occurred if:
(i) any Person (other than Emisphere, any trustee or other
fiduciary holding securities under any employee benefit
plan of Emisphere, or any company owned, directly or
indirectly, by Emisphere's stockholders immediately
prior to the occurrence with respect to which the
evaluation is being made in substantially the same
proportions as their ownership of Emisphere's common
stock) becomes the Beneficial Owner (except that a
Person shall be deemed to be the Beneficial Owner of
all shares that any such Person has the right to
acquire pursuant to any agreement or arrangement or
upon exercise of conversion rights, warrants or options
or otherwise, without regard to the sixty day period
referred to in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of Emisphere or
any Significant Subsidiary (as defined below),
representing 30% or more of the combined voting power
of Emisphere's or such subsidiary's then outstanding
securities;
(ii) during any period of two (2) consecutive years,
individuals who at the beginning of such period
constitute the Board, and any new director (other than
a director designated by a person who has entered into
an agreement with Emisphere to effect a transaction
described in clause (i), (iii), or (iv) of this
paragraph) whose election by the Board or nomination
for election by Emisphere's stockholders was approved
by a vote of at least two-thirds of the directors then
still in office who either were directors at the
beginning of the two-
11
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year period or whose election or nomination for
election was previously so approved but excluding for
this purpose any such new director whose initial
assumption of office occurs as a result of either an
actual or threatened election contest (as such terms
are used in Rule 14a-11 of Regulation 14A promulgated
under the Exchange Act) or other actual or threatened
solicitation of proxies or consents by or on behalf of
an individual, corporation, partnership, group,
associate or other entity or Person other than the
Board, cease for any reason to constitute at least a
majority of the Board;
(iii) the consummation of a merger or consolidation of
Emisphere or any subsidiary owning directly or
indirectly all or substantially all of the consolidated
assets of Emisphere (a "Significant Subsidiary") with
any other entity, other than a merger or consolidation
which would result in the voting securities of
Emisphere or a Significant Subsidiary outstanding
immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted
into voting securities of the surviving or resulting
entity) more than 50% of the combined voting power of
the surviving or resulting entity outstanding
immediately after such merger or consolidation; or
(iv) the stockholders of Emisphere approve a plan or
agreement for the sale or disposition of all or
substantially all of the consolidated assets of
Emisphere (other than such a sale or disposition
immediately after which such assets will be owned
directly or indirectly by the stockholders of Emisphere
in substantially the same proportions as their
ownership of the common stock of Emisphere immediately
prior to such sale or disposition) in which case the
Board shall determine the effective date of the Change
in Control resulting therefrom.
For purposes of this definition of Change in Control:
(A) The term "Beneficial Owner" shall have the meaning
ascribed to such term in Rule 13d-3 under the
Exchange Act (including any successor to such
Rule).
(B) The term "Exchange Act" means the Securities
Exchange Act of 1934, as amended from time to
time, or any successor act thereto.
12
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(C) The term "Person" shall have the meaning ascribed
to such term in Section 3(a)(9) of the Exchange
Act and used in Sections 13(d) and 14(d) thereof,
including "group" as defined in Section 13(d)
thereof.
(d) Voluntary Termination. In the event of a termination of
---------------------
employment by Executive on his own initiative after delivery of 10 business days
advance written notice, other than a termination due to death or Disability, or
by Executive for Good Reason, Executive shall have the same entitlements as
provided in Section 10(b)(iii) above for a termination for Cause.
Notwithstanding any implication to the contrary, Executive shall not have the
right to terminate his employment with Emisphere during the Term except for Good
Reason, and any other voluntary termination of employment by Executive during
the Term shall be considered a material breach of this Agreement by Executive.
(e) Termination Without Cause Following a Change in Control;
--------------------------------------------------------
Termination by Executive for Good Reason Following a Change in Control. In the
----------------------------------------------------------------------
event Executive's employment with Emisphere is terminated by Emisphere without
Cause (which termination shall be effective as of the date specified by
Emisphere in a written notice to Executive), other than due to Executive's death
or Disability, or by Executive for Good Reason, in either case within two (2)
years following a Change in Control, Executive shall be entitled to and his sole
remedies under this Agreement shall be:
(i) Base Salary through the Termination Date payable in a
cash lump sum no later than 15 days following such
date;
(ii) an amount equal to the greater of (1) 3 times the sum
of (A) Executive's Base Salary, at the annualized rate
in effect on the Termination Date (or in the event a
reduction in Base Salary is a basis for a Termination
by Executive for Good Reason, then the Base Salary in
effect immediately prior to such reduction), and (B)
Executive's target annual incentive (if any), or (2)
the present value (using a discount rate of 6%) of the
Base Salary (at the annualized rate in effect on the
Termination Date or in the event a reduction in Base
Salary is a basis for a Termination by Executive for
Good Reason, then the Base Salary in effect immediately
prior to such reduction) and target annual incentive
payments due to Executive for the then balance of the
then remaining Term of this Agreement (assuming no
further renewals), such amount payable in a cash lump
sum no later than 15 days following the Termination
Date;
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(iii) pro rata annual incentive award (if any) for
the year in which termination occurs
assuming that Executive would have received
an award equal to his target annual
incentive (as determined by the Committee in
good faith) for such year, payable in a cash
lump sum no later than 15 days following the
Termination Date;
(iv) the balance of any incentive awards earned
as of December 31 of the prior year (but not
yet paid), payable in a lump sum no later
than 15 days following the Termination Date;
(v) immediate vesting of all outstanding stock
options and the right to exercise such stock
options during the Severance Period or for
the remainder of the exercise period;
(vi) elimination of all restrictions on any
restricted or deferred stock awards
outstanding at the time of termination of
employment;
(vii) immediate vesting of Executive's accrued
benefits under any supplemental retirement
benefit plan ("SERP") maintained by
Emisphere, with payment of such benefits to
be made in accordance with the terms and
conditions of the SERP;
(viii) settlement of all deferred compensation
arrangements in accordance with any then
applicable deferred compensation plan or
election form;
(ix) continued participation in all medical,
health and life insurance plans at the same
benefit level at which he was participating
on the date of termination of his employment
until the earlier of:
(A) the end of the Severance Period; or
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(B) the date, or dates, Executive receives
equivalent coverage and benefits under the plans
and programs of a subsequent employer (such
coverage and benefits to be determined on a
coverage-by-coverage, or benefit-by-benefit,
basis); provided that (1) if Executive is
precluded from continuing his participation in
any employee benefit plan or program as provided
in this clause (ix) of this Section 10(e), he
shall receive cash payments equal on an after-
tax basis to the cost to him of obtaining the
benefits provided under the plan or program in
which he is unable to participate for the period
specified in this clause (ix) of this Section
10(e), (2) such cost shall be deemed to be the
lowest reasonable cost that would be incurred by
Executive in obtaining such benefit himself on
an individual basis, and (3) payment of such
amounts shall be made quarterly in advance; and
(x) other or additional benefits then due or earned in
accordance with applicable plans and programs of
Emisphere.
For purposes of any termination pursuant to this Section 10(e), the term
"Severance Period" shall mean the period of 36 months following the Termination
Date.
(f) No Mitigation; No Offset. In the event of any termination
------------------------
of employment, Executive shall be under no obligation to seek other employment;
amounts due Executive under this Agreement shall not be offset by any
remuneration attributable to any subsequent employment that he may obtain or for
any other reason.
(g) Nature of Payments. Any amounts due under this Section 10
------------------
are in the nature of severance payments considered to be reasonable by Emisphere
and are not in the nature of a penalty.
(h) Exclusivity of Severance Payments. Upon termination of
---------------------------------
Executive's employment during the Term, he shall not be entitled to any
severance payments or severance benefits from Emisphere or any payments by
Emisphere on account of any claim by him of wrongful termination, including
claims under any federal, state or local human and civil rights or labor laws,
other than the payments and benefits provided in this Section 10.
(i) Release of Employment Claims. Executive agrees, as a
----------------------------
condition to receipt of the termination payments and benefits provided for in
this Section 10, that he will execute a release agreement, in a form reasonably
satisfactory to Emisphere, releasing any and all claims arising out of
Executive's employment (other than enforcement of this Agreement, Executive's
15
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rights under any of Emisphere's incentive compensation and employee benefit
plans and programs to which he is entitled under this Agreement, and any claim
for any tort for personal injury not arising out of or related to his
termination of employment).
11. Confidentiality; Cooperation with Regard to Litigation; Non-
-------------------------------------------------------------
disparagement.
-------------
(a) During the Term and thereafter, Executive shall not, without
Emisphere's prior written consent, disclose to anyone (except in good faith in
the ordinary course of business to a person who will be advised by Executive to
keep such information confidential) or make use of any Confidential Information
except in the performance of his duties hereunder or when required to do so by
legal process, by any governmental agency having supervisory authority over the
business of Emisphere or by any administrative or legislative body (including a
committee thereof) that requires him to divulge, disclose or make accessible
such information. In the event that Executive is so ordered, he shall give
prompt written notice to Emisphere to allow Emisphere the opportunity to object
to or otherwise resist such order.
(b) During the Term and thereafter, Executive shall not disclose
the existence or contents of this Agreement beyond what is disclosed in the
proxy statement or documents filed with the government unless and to the extent
such disclosure is required by law, by a governmental agency, or in a document
required by law to be filed with a governmental agency or in connection with
enforcement of his rights under this Agreement. In the event that disclosure is
so required, Executive shall give prompt written notice to Emisphere to allow
Emisphere the opportunity to object to or otherwise resist such requirement.
This restriction shall not apply to such disclosure by him to members of his
immediate family, his tax, legal or financial advisors, any lender, or tax
authorities, or to potential future employers to the extent necessary, each of
whom shall be advised not to disclose such information.
(c) "Confidential Information" shall mean all information
concerning the business of Emisphere or any Subsidiary relating to any of their
products, product development, trade secrets, customers, suppliers, finances,
and business plans and strategies. Excluded from the definition of Confidential
Information is information (i) that is or becomes part of the public domain,
other than through the breach of this Agreement by Executive or (ii) regarding
Emisphere's business or industry properly acquired by Executive in the course of
his career as an executive in Emisphere's industry and independent of
Executive's employment by Emisphere. For this purpose, information known or
available generally within the trade or industry of Emisphere or any Subsidiary
shall be deemed to be known or available to the public.
(d) "Subsidiary" shall mean any corporation controlled directly
or indirectly by Emisphere.
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(e) Executive agrees to cooperate with Emisphere, during the
Term and thereafter, by making himself reasonably available to testify on behalf
of Emisphere or any Subsidiary in any action, suit, or proceeding, whether
civil, criminal, administrative, or investigative, and to assist Emisphere , or
any Subsidiary, in any such action, suit, or proceeding, by providing
information and meeting and consulting with the Board or its representatives or
counsel, or representatives or counsel to Emisphere , or any Subsidiary as
reasonably requested; provided however, that the same does not materially
-------- ------
interfere with his then current professional activities. Emisphere agrees to
reimburse Executive, on an after-tax basis, for all expenses actually incurred
in connection with his provision of testimony or assistance.
(f) Executive agrees that, during the Term and thereafter he
will not make statements or representations, or otherwise communicate, directly
or indirectly, in writing, orally, or otherwise, or take any action which may,
directly or indirectly, disparage Emisphere or any Subsidiary or their
respective officers, directors, employees, advisors, businesses or reputations.
Emisphere agrees that, during the Term and thereafter Emisphere will not make
statements or representations, or otherwise communicate, directly or indirectly,
in writing, orally, or otherwise, or take any action which may directly or
indirectly, disparage Executive or his business or reputation. Notwithstanding
the foregoing, nothing in this Agreement shall preclude either Executive or
Emisphere from making truthful statements or disclosures that are required by
applicable law, regulation or legal process.
12. Non-competition.
---------------
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(a) During the Restriction Period (as defined in Section 12(b)
below), Executive shall not engage in Competition with Emisphere or any
Subsidiary. "Competition" shall mean engaging in any activity, except as
provided below, for a Competitor of Emisphere or any Subsidiary, whether as an
employee, consultant, principal, agent, officer, director, partner, shareholder
(except as a less than one percent shareholder of a publicly traded company) or
otherwise. A "Competitor" shall mean any corporation or other entity which
competes directly or indirectly with the business conducted by Emisphere , as
determined on the date of termination of Executive"s employment. If Executive
commences employment or becomes a consultant, principal, agent, officer,
director, partner, or shareholder of any entity that is not a Competitor at the
time Executive initially becomes employed or becomes a consultant, principal,
agent, officer, director, partner, or shareholder of the entity, future
activities of such entity shall not result in a violation of this provision
unless (x) such activities were contemplated by Executive at the time Executive
initially became employed or becomes a consultant, principal, agent, officer,
director, partner, or shareholder of the entity or (y) Executive commences
directly or indirectly overseeing or managing the activities of an entity which
becomes a Competitor during the Restriction Period, which activities are
competitive with the activities of Emisphere or any Subsidiary. Executive shall
not be deemed indirectly overseeing or managing the activities of such
Competitor which are competitive with the activities of Emisphere or any
Subsidiary so long as he does not regularly participate in discussions with
regard to the conduct of the competing business.
(b) For the purposes of this Section 12, "Restriction Period"
shall mean the period beginning with the Effective Date and ending with:
(i) in the case of a termination of Executive's
employment by Emisphere without Cause or by
Executive for Good Reason, in either case
following a Change in Control, immediately
upon such termination of employment;
(ii) in the case of a termination of Executive's
employment for any reason not specified in
Section 12(b)(i) above, the earlier of (1)
24 months after the Termination Date and (2)
the occurrence of a Change in Control.
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13. Non-solicitation/ Non-interference. During the period beginning with
----------------------------------
the Effective Date and ending 24 months following the Termination Date,
Executive shall not induce employees of Emisphere or any Subsidiary to terminate
their employment, nor shall Executive solicit or encourage any of Emisphere's or
any Subsidiary's non-retail customers, or any corporation or other entity in a
joint venture relationship (directly or indirectly) with Emisphere or any
Subsidiary, to terminate or diminish their relationship with Emisphere or any
Subsidiary or to violate any agreement with any of them. During such period,
Executive shall not hire, either directly or through any employee, agent or
representative, any employee of Emisphere or any Subsidiary or any person who
was employed by Emisphere or any Subsidiary within 180 days of such hiring.
14. Remedies.
--------
If Executive breaches any of the provisions contained in Sections 11,
12 or 13 above, Emisphere (a) subject to Section 15, shall have the right to
immediately terminate all payments and benefits due under this Agreement and (b)
shall have the right to seek injunctive relief. Executive acknowledges that such
a breach of Sections 11, 12 or 13 would cause irreparable injury and that money
damages would not provide an adequate remedy for Emisphere; provided however,
-------- -------
the foregoing shall not prevent Executive from contesting the issuance of any
such injunction on the ground that no violation or threatened violation of
Section 11, 12 or 13 has occurred.
15. Resolution of Disputes.
----------------------
(a) Any controversy or claim arising out of or relating to this
Agreement or any breach or asserted breach hereof or questioning the validity
and binding effect hereof arising under or in connection with this Agreement,
other than seeking injunctive relief under Section 14, shall be resolved by
binding arbitration, to be held at an office closest to Emisphere's principal
offices in accordance with the rules and procedures of the American Arbitration
Association. Judgment upon the award rendered by the arbitrator(s) may be
entered in any court having jurisdiction thereof. Pending the resolution of any
arbitration or court proceeding, Emisphere shall continue payment of all amounts
and benefits due Executive under this Agreement. All costs and expenses of any
arbitration or court proceeding (including fees and disbursements of counsel)
shall be borne by the respective party incurring such costs and expenses, but
Emisphere shall reimburse Executive for such reasonable costs and expenses in
the event he substantially prevails in such arbitration or court proceeding.
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(b) Notwithstanding the foregoing, following a Change in Control
all reasonable costs and expenses (including fees and disbursements of counsel)
incurred by Executive pursuant to this Section 15 shall be paid on behalf of or
reimbursed to Executive promptly by Emisphere; provided however, that no
-------- -------
reimbursement shall be made of such expenses if and to the extent the
arbitrator(s) determine(s) that any of Executive's litigation assertions or
defenses were in bad faith or frivolous.
16. Indemnification.
---------------
(a) Company Indemnity. Emisphere agrees that if Executive is
made a party, or is threatened to be made a party, to any action, suit or
proceeding, whether civil, criminal, administrative or investigative (a
"Proceeding"), by reason of the fact that he is or was a director, officer or
employee of Emisphere or any Subsidiary or is or was serving at the request of
Emisphere or any Subsidiary as a director, officer, member, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, whether or not the
basis of such Proceeding is Executive's alleged action in an official capacity
while serving as a director, officer, member, employee or agent, Executive shall
be indemnified and held harmless by Emisphere to the fullest extent legally
permitted or authorized by Emisphere's certificate of incorporation or bylaws or
resolutions of Emisphere's Board or, if greater, by the laws of the State of
[Delaware] against all cost, expense, liability and loss (including without
limitation, attorney's fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid or to be paid in settlement) reasonably incurred or suffered by
Executive in connection therewith, and such indemnification shall continue as to
Executive even if he has ceased to be a director, member, officer, employee or
agent of Emisphere or other entity and shall inure to the benefit of Executive's
heirs, executors and administrators. Emisphere shall advance to Executive all
reasonable costs and expenses to be incurred by him in connection with a
Proceeding within 20 days after receipt by Emisphere of a written request for
such advance. Such request shall include an undertaking by Executive to repay
the amount of such advance if it shall ultimately be determined that he is not
entitled to be indemnified against such costs and expenses. The provisions of
this Section 16(a) shall not be deemed exclusive of any other rights of
indemnification to which Executive may be entitled or which may be granted to
him, and it shall be in addition to any rights of indemnification to which he
may be entitled under any policy of insurance.
(b) No Presumption Regarding Standard of Conduct. Neither the
--------------------------------------------
failure of Emisphere (including its Board, independent legal counsel or
stockholders) to have made a determination prior to the commencement of any
proceeding concerning payment of amounts
20
<PAGE>
claimed by Executive under Section 16(a) above that indemnification of Executive
is proper because he has met the applicable standard of conduct, nor a
determination by Emisphere (including its Board, independent legal counsel or
stockholders) that Executive has not met such applicable standard of conduct,
shall create a presumption that Executive has not met the applicable standard of
conduct.
(c) Liability Insurance. Emisphere agrees to continue and maintain
-------------------
a directors and officers' liability insurance policy covering Executive to the
extent Emisphere provides such coverage for its other executive officers.
17. Excise Tax Gross-Up.
-------------------
If Executive becomes entitled to one or more payments (with a
"payment" including, without limitation, the vesting of an option or other non-
cash benefit or property), whether pursuant to the terms of this Agreement or
any other plan, arrangement, or agreement with Emisphere or any affiliated
company (the "Total Payments"), which are or become subject to the tax imposed
by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code")
(or any similar tax that may hereafter be imposed) (the "Excise Tax"), Emisphere
shall pay to Executive at the time specified below an additional amount (the
"Gross-up Payment") (including without limitation, reimbursement for any
penalties and interest that may accrue in respect of such Excise Tax) such that
the net amount retained by Executive, after reduction for any Excise Tax
(including any penalties or interest thereon) on the Total Payments and any
federal, state and local income or employment tax and Excise Tax on the Gross-up
Payment provided for by this Section 17, but before reduction for any federal,
state, or local income or employment tax on the Total Payments, shall be equal
to the sum of (a) the Total Payments, and (b) an amount equal to the product of
any deductions disallowed for federal, state, or local income tax purposes due
to the inclusion of the Gross-up Payment in Executive's adjusted gross income
multiplied by the highest applicable marginal rate of federal, state, or local
income taxation, respectively, for the calendar year in which the Gross-up
Payment is made. For purposes of determining whether any of the Total Payments
will be subject to the Excise Tax and the amount of such Excise Tax:
(i) The Total Payments shall be treated as "parachute payments"
within the meaning of Section 280G(b)(2) of the Code, and
all "excess parachute payments" within the meaning of
Section 280G(b)(1) of the Code shall be treated as subject
to the Excise Tax, unless, and except to the extent that, in
the written opinion of independent compensation consultants,
counsel or auditors of nationally recognized standing
("Independent Advisors") selected by Emisphere and
reasonably acceptable to Executive, the Total Payments (in
whole or in part) do not constitute parachute payments, or
such excess parachute payments (in whole or in part)
represent reasonable compensation for services actually
rendered within the meaning of Section
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280G(b)(4) of the Code in excess of the base amount
within the meaning of Section 280G(b)(3) of the Code
or are otherwise not subject to the Excise Tax;
(ii) The amount of the Total Payments which shall be
treated as subject to the Excise Tax shall be equal
to the lesser of (A) the total amount of the Total
Payments or (B) the total amount of excess parachute
payments within the meaning of Section 280G(b)(1) of
the Code (after applying clause (i) above); and
(iii) The value of any non-cash benefits or any deferred
payment or benefit shall be determined by the
Independent Advisors in accordance with the
principles of Sections 280G(d)(3) and (4) of the
Code.
For purposes of determining the amount of the Gross-up
Payment, Executive shall be deemed (A) to pay federal income taxes at the
highest marginal rate of federal income taxation for the calendar year in which
the Gross-up Payment is to be made; (B) to pay any applicable state and local
income taxes at the highest marginal rate of taxation for the calendar year in
which the Gross-up Payment is to be made, net of the maximum reduction in
federal income taxes which could be obtained from deduction of such state and
local taxes if paid in such year (determined without regard to limitations on
deductions based upon the amount of Executive's adjusted gross income); and (C)
to have otherwise allowable deductions for federal, state, and local income tax
purposes at least equal to those disallowed because of the inclusion of the
Gross-up Payment in Executive's adjusted gross income. In the event that the
Excise Tax is subsequently determined to be less than the amount taken into
account hereunder at the time the Gross-up Payment is made, Executive shall
repay to Emisphere at the time that the amount of such reduction in Excise Tax
is finally determined (but, if previously paid to the taxing authorities, not
prior to the time the amount of such reduction is refunded to Executive or
otherwise realized as a benefit by Executive) the portion of the Gross-up
Payment that would not have been paid if such Excise Tax had been applied in
initially calculating the Gross-up Payment, plus interest on the amount of such
repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the
event that the Excise Tax is determined to exceed the amount taken into account
hereunder at the time the Gross-up Payment is made (including by reason of any
payment the existence or amount of which cannot be determined at the time of the
Gross-up Payment), Emisphere shall make an additional Gross-up Payment in
respect of such excess (plus any interest and penalties payable with respect to
such excess) at the time that the amount of such excess is finally determined.
The Gross-up Payment provided for above shall be paid on the
30th day (or such earlier date as the Excise Tax becomes due and payable to the
taxing authorities) after it has been determined that the Total Payments (or any
portion thereof) are subject to the Excise Tax; provided however, that if the
-------- -------
amount of such Gross-up Payment or portion thereof cannot be finally
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<PAGE>
determined on or before such day, Emisphere shall pay to Executive on such day
an estimate, as determined by the Independent Advisors, of the minimum amount of
such payments and shall pay the remainder of such payments (together with
interest at the rate provided in Section 1274(b)(2)(B) of the Code), as soon as
the amount thereof can be determined. In the event that the amount of the
estimated payments exceeds the amount subsequently determined to have been due,
such excess shall constitute a loan by Emisphere to Executive, payable on the
fifth day after demand by Emisphere (together with interest at the rate provided
in Section 1274(b)(2)(B) of the Code). If more than one Gross-up Payment is
made, the amount of each Gross-up Payment shall be computed so as not to
duplicate any prior Gross-up Payment. Emisphere shall have the right to control
all proceedings with the Internal Revenue Service that may arise in connection
with the determination and assessment of any Excise Tax and, at its sole option,
Emisphere may pursue or forego any and all administrative appeals, proceedings,
hearings, and conferences with any taxing authority in respect of such Excise
Tax (including any interest or penalties thereon); provided however, that
-------- -------
Emisphere's control over any such proceedings shall be limited to issues with
respect to which a Gross-up Payment would be payable hereunder, and Executive
shall be entitled to settle or contest any other issue raised by the Internal
Revenue Service or any other taxing authority. Executive shall cooperate with
Emisphere in any proceedings relating to the determination and assessment of any
Excise Tax and shall not take any position or action that would materially
increase the amount of any Gross-up Payment hereunder.
18. Effect of Agreement on Other Benefits.
-------------------------------------
Except as specifically provided in this Agreement, the
existence of this Agreement shall not be interpreted to preclude, prohibit or
restrict Executive's participation in any other employee benefit or other plans
or programs in which he currently participates.
19. Assignability; Binding Nature.
-----------------------------
This Agreement shall be binding upon and inure to the benefit
of the Parties and their respective successors, heirs (in the case of Executive)
and permitted assigns. No rights or obligations of Emisphere under this
Agreement may be assigned or transferred by Emisphere except that such rights or
obligations may be assigned or transferred in connection with the sale or
transfer of all or substantially all of Emisphere's assets; provided that, the
-------- ----
assignee or transferee is the successor to all or substantially all of
Emisphere's assets and such assignee or transferee assumes Emisphere's
liabilities, obligations and duties as contained in this Agreement, either
contractually or as a matter of law. Emisphere further agrees that, in the event
of a sale or transfer of assets as described in the preceding sentence, it shall
take whatever action it legally can to cause such assignee or transferee to
expressly assume Emisphere's liabilities, obligations and duties hereunder. No
rights or obligations of Executive under this Agreement may be assigned or
transferred by Executive other than his rights to compensation and benefits,
which may be transferred only by will or operation of law, except as provided in
Section 25 below.
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20. Representation.
--------------
Emisphere represents and warrants that it is fully authorized
and empowered to enter into this Agreement and that the performance of its
obligations under this Agreement will not violate any agreement between it and
any other person, firm or organization.
21. Entire Agreement.
----------------
This Agreement (and any option grant agreements) contains the
entire understanding and agreement between the Parties concerning the subject
matter hereof and, as of the Effective Date, supersedes all prior agreements,
understandings, discussions, negotiations and undertakings, whether written or
oral, between the Parties with respect thereto.
22. Amendment or Waiver.
-------------------
No provision in this Agreement may be amended unless such
amendment is agreed to in writing and signed by Executive and an authorized
officer of Emisphere. Except as set forth herein, no delay or omission to
exercise any right, power or remedy accruing to any Party shall impair any such
right, power or remedy or shall be construed to be a waiver of or an
acquiescence to any breach hereof. No waiver by either Party of any breach by
the other Party of any condition or provision contained in this Agreement to be
performed by such other Party shall be deemed a waiver of a similar or
dissimilar condition or provision at the same or any prior or subsequent time.
Any waiver must be in writing and signed by Executive or an authorized officer
of Emisphere, as the case may be.
23. Severability.
------------
In the event that any provision or portion of this Agreement
shall be determined to be invalid or unenforceable for any reason, in whole or
in part, the remaining provisions of this Agreement shall be unaffected thereby
and shall remain in full force and effect to the fullest extent permitted by
law.
24. Survivorship.
------------
The respective rights and obligations of the Parties hereunder
shall survive any termination of Executive's employment to the extent necessary
to the intended preservation of such rights and obligations.
24
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25. Beneficiaries/References.
------------------------
Executive shall be entitled, to the extent permitted under any
applicable law, to select and change a beneficiary or beneficiaries to receive
any compensation or benefit payable hereunder following Executive's death by
giving Emisphere written notice thereof. In the event of Executive's death or a
judicial determination of his incompetence, reference in this Agreement to
Executive shall be deemed, where appropriate, to refer to his beneficiary,
estate or other legal representative.
26. Governing Law/Jurisdiction.
--------------------------
This Agreement shall be governed by and construed and
interpreted in accordance with the laws of New York without reference to
principles of conflict of laws. Subject to Section 15, Emisphere and Executive
hereby consent to the jurisdiction of any or all of the following courts for
purposes of resolving any dispute under this Agreement: (i) the United States
District Court for New York, or (ii) any of the courts of the State of New York.
Emisphere and Executive further agree that any service of process or notice
requirements in any such proceeding shall be satisfied if the rules of such
court relating thereto have been substantially satisfied. Emisphere and
Executive hereby waive, to the fullest extent permitted by applicable law, any
objection which it or he may now or hereafter have to such jurisdiction and any
defense of inconvenient forum.
27. Notices.
-------
Any notice given to a Party shall be in writing and shall be
deemed to have been given when delivered personally or sent by certified or
registered mail, postage prepaid, return receipt requested, duly addressed to
the Party concerned at the address indicated below or to such changed address as
such Party may subsequently give such notice of:
If to Emisphere: EMISPHERE TECHNOLOGIES, INC.
765 Old Saw Mill Road
Tarrytown, NY 10591
If to Executive: Mr. Michael M. Goldberg, MD
159 Lydecker Street
Englewood, NJ 07631
28. Headings.
--------
The headings of the sections contained in this Agreement are for
convenience only and shall not be deemed to control or affect the meaning or
construction of any provision of this Agreement.
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29. Counterparts.
------------
This Agreement may be executed in two or more counterparts.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
26
