EXHIBIT
10(v)


 


AMENDED


EMPLOYMENT AGREEMENT


 


This Agreement (“Agreement”) made this 9th day of December, 1999,
between DUSA Pharmaceuticals, Inc., a New Jersey corporation (the “Corporation”)
and Stuart L. Marcus, MD, PhD, (“Dr. Marcus”).


 


WHEREAS, the parties entered into an Employment Agreement dated as of October 11,
1993, the “Original Agreement”,  whereby
Dr. Marcus was appointed Vice President, Scientific Affairs of the Corporation;
and


 


WHEREAS, the parties now wish to amend the Original Agreement in
writing as provided in Paragraph 20 of the Original Agreement;


 


NOW THEREFORE, in consideration of the mutual covenants and promises,
the parties agree as follows:


 


1.                                       Employment:  The Corporation hereby employs Dr. Marcus and
he hereby accepts such employment as the Senior Vice President, Scientific
Affairs and Chief Scientific Officer of the Corporation.  Dr. Marcus agrees to work on a full-time
basis and to devote his best efforts and spend as much time and attention as is
necessary to manage the scientific affairs of the Corporation.  Dr. Marcus shall report to the President and
Chief Executive Officer of the Corporation as a member of the Executive
Committee and to the Chief Operating Officer on day-to-day activities.


 


2.                                       Duties and Responsibilities:  Notwithstanding any language contained herein
to the contrary, Dr. Marcus shall be responsible (by way of example and not by
way of limitation) for:


 


A.                                   the
general scientific direction of the business of the Corporation, including the
design and implementation of a comprehensive research and development program
immediate and long-term basis;


 


B.                                     the
management of the clinical development program regulatory affairs and quality
control of products produced by the Corporation;


 


C.                                     the
management of scientific activities conducted, on behalf of the Corporation, by
consultants and/or investigators in accordance with the Corporation’s
respective contracts.


 


D.                                    any
additional employment responsibilities assigned by the President and/or Chief
Executive Officer, from time to time, which are within Dr. Marcus’ expertise.


 


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3.                                       Remuneration:  The Corporation will pay to Dr. Marcus a base
salary equal to $210,000 per annum at intervals consistent with the Corporation’s
administrative practices, from time to time. 
This base salary shall be reviewed by the Board from time to time, not
less than on an annual basis, beginning in January, 2000.  Any salary increases shall be determined by,
and shall be made at the sole discretion of the Board. Following the end of
each fiscal year, the Board may award a cash bonus to Dr. Marcus in an amount
up to 30% of his current base salary for such year, as determined by the Board
in its sole discretion.  For purposes of
awarding the total amount of such bonus, mutually agreeable performance
objectives will be set at the beginning of any calendar year during Dr. Marcus's
employment.  The Board may award annual
cash bonuses above 30% of then current base salary for outstanding performance.


 


All salary and other payments and allowances outlined in this Agreement
shall be subject to such withholding taxes and deductions as may be required by
law.


 


4.                                       Place of Employment:  As Vice President of Scientific Affairs, Dr.
Marcus will operate primarily from the offices of DUSA Pharmaceuticals New
York, Inc. located in Valhalla, New York. 
Dr. Marcus acknowledges, however, that there will be domestic and
international travel required on a regular basis.  Such travel is understood to be necessary in
order to promote the business of the Corporation and so that Dr. Marcus may
remain in the forefront of scientific knowledge by attending relevant
scientific conferences or symposiums.


 


5.                                       Benefits: 
Dr. Marcus will be entitled to participate in the medical, disability,
life, and other insurance benefit plans or pension, profit sharing, or 401K
plans which may be made available to the officers and employees of the
Corporation from time to time, subject to applicable eligibility rules thereof.


 


6.                                       Stock Options:  Dr. Marcus shall be entitled to participate
in the 1996 Omnibus Plan, as amended, and any subsequent stock purchase and
bonus or incentive plans that the Corporation shall from time to time make
available to its officers and employees, subject to applicable eligibility
rules thereof.


 


7.                                       Vacation: Dr. Marcus shall be entitled to
four (4) weeks of vacation during each year of employment, to be taken at a
time or times acceptable to the Corporation, having regard to its
operations.  Dr. Marcus shall not be entitled
to carry over any unused vacation from one (1) calendar year into the following
calendar year, so long as such a vacation policy is consistent for all
employees.


 


8.                                       Expenses: 
All reasonable travel and other expenses incident to the rendering of services
by Dr. Marcus on behalf of and in promoting the interests of the Corporation
shall be paid by the Corporation, including but not limited to an automobile
allowance in the amount of $6,000 per year and a miscellaneous expense
allowance in the amount of $7,000 per year. 
If such expenses are paid in the first instance by Dr. Marcus, the
Corporation agrees that it will reimburse him therefore upon presentation of
appropriate statements, vouchers, bills and invoices as and when required by
the Corporation to support the reimbursement request.


 


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9.                                       Confidential Information:


 


A.                                   Dr.
Marcus understands that in the performance of his services hereunder he may
obtain knowledge of “confidential information”, as hereinafter defined,
relating to the business of the Corporation. 
As used herein, “confidential information” means any information
(whether clinical, financial, administrative or otherwise), written or oral,
(including without limitation, any formula, pattern, device, plan, process, or
compilation of information) which (i) is, or is designed to be, used in the
business of the Corporation or results from its research and/or development
activities, or (ii) is private or confidential in that it is not generally
known or available to the public, or (iii) gives the Corporation an opportunity
to obtain an advantage over competitors who do not know or use it.  Dr. Marcus shall not, without the written
consent of the Board, either during the term of his employment or thereafter,
(a) use or disclose any such confidential information outside of the
Corporation (except to consultants or other agents or representatives of the
Corporation who are similarly bound to the Corporation by confidentiality
obligations), (b) publish any article with respect thereto, (c) except in
the performance of his services hereunder, remove or aid in the removal from
the premises of the Corporation any such confidential information or any
property or material which relates thereto.


 


B.                                     Upon the
termination of his employment with the Corporation, all documents, records,
notebooks and similar repositories of or continuing information concerning the
Corporation, or its products, services or customers, including any copies
thereof, then in Dr. Marcus’s possession or under his control, whether prepared
by Dr. Marcus or others, will be left with or immediately returned to the
Corporation by Dr. Marcus.


 


C.                                     (i)                                     Dr. Marcus shall
promptly disclose to the Corporation any and all prescription drug products,
devices, machines, methods, inventions, discoveries, improvements, processes,
works or the like (all of which are referred to herein as “inventions”) which
he may invent, conceive, produce, or reduce to practice, either solely or
jointly with others, at any time (whether or not during work hours) during his
employment hereunder.


 


(ii)                                  All
such inventions which in any way relate to the products manufactured, sold or
used by the Corporation or to any methods, processes or apparatus used in
connection with the manufacture of such products or treatment of disease or
conditions, or in either case which are or may be or may become capable of use
in the business of the Corporation, shall at all times and for all purposes be
regarded as acquired and held by Dr. Marcus in a fiduciary capacity for, solely
for the benefit of, the Corporation.


 


(iii) With respect to all such inventions,
Dr. Marcus shall:


 


(a)                                  treat
all information with respect thereto as confidential information within the
meaning of, and subject to paragraph 9 above;


 


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(b)                                 keep
complete and accurate records thereof, which records shall be the property of
the Corporation;


 


(c)                                  execute
any application for letters patent of the United States and of any and all
other countries covering such inventions, and give to the Corporation, its
attorneys and solicitors all reasonable and requested assistance in preparing
such application;


 


(d)                                 from
time to time, upon the request and at the expense of the Corporation, but
without charge for services beyond the salary paid to him by the Corporation,
execute all assignment or other instruments required to transfer and assign to
the Corporation (or as it may direct) all inventions, and all patents and
applications for patents, copyrights or applications for registration of
copyrights, covering such inventions or otherwise required to protect the
rights and interests of the Corporation;


 


(e)                                  testify
in any proceedings or litigation as to all such inventions; and


 


(f)                                    in
case the Corporation shall desire to keep secret any such invention, or shall
for any reason decide not to have letters patent applied for thereon, refrain
from applying for letters patent thereon.


 


D.                                    Notwithstanding any
of the foregoing in this section, information, whether confidential or
proprietary or not, shall be exempt from the above confidentiality provisions
if said information:


 


(i)                                     is known to Dr.
Marcus prior to his employment or consultancy with the Corporation;


 


(ii)                                  is in the public
domain on the date of employment;


 


(iii)                               becomes public at any
time through no fault of Dr. Marcus; or


 


(iv)                              is or becomes readily
available from third parties who have no confidentiality obligations to the
Corporation.


 


E.                                      If Dr. Marcus's
employment is terminated by Dr. Marcus, Dr. Marcus shall not, without the
express prior written consent of the Corporation, directly, or indirectly,
during the term of this Agreement or for a period of one (1) year after its
termination, render services, or engage in activity including but not limited
to, the activities enumerated in Section 2 hereof or any similar activity,
for any company which relates to the development or sale of photodynamic
therapy (“PDT”) or photodetection (“PD”) products directly competitive (i.e.,
medically or therapeutically) with the Corporation's products or compounds or
mixtures thereof, whether alone or as a partner,


 


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officer, director, employee or shareholder of any other corporation, or
as a trustee, fiduciary, consultant or other representative of any other
activity.  This restriction shall not
apply if Dr. Marcus has disclosed to the Corporation, in writing, all the known
facts relating to such work or activity and has received a release, in writing from
the Corporation, to engage in such work or activity.  The making of passive and personal
investments and the conduct of private business affairs shall not be prohibited
hereunder.  Ownership by Dr. Marcus of
five percent (5%) or less of the outstanding shares of stock of any corporation
either (i) listed on a national securities exchange or (ii) having at least 100
stockholders shall not make Dr. Marcus a “stockholder” within the meaning of
that term as used in this paragraph, so long as Dr. Marcus has no participation
in the management of such corporation.


 


10.                                 Termination of Employment:


 


A.                                   The Corporation may
terminate this Agreement at any time, with or without cause on sixty (60) days
prior written notice.  For purposes of
this Agreement, cause shall mean (i) Dr. Marcus’s physical or mental disability
or other inability to perform the duties of his job for any reason for a period
in excess of six (6) consecutive months, (ii) Dr. Marcus's conviction in a
court of law of a crime or offense, which conviction would prevent Dr. Marcus
from effective management of the Corporation or materially adversely affect the
reputation of the Corporation, as determined by the Board in its sole
discretion, exercising its reasonable judgment, or (iii) Dr. Marcus's malfeasance
or misconduct such as fraud, embezzlement, dishonesty, acts of moral turpitude,
or a felony conviction, or for other good cause materially detrimental to the
Corporation.  In the event of a
termination for cause, Dr. Marcus shall be paid his base salary, pro rated to
the date of termination.  Nothing
contained herein shall be interpreted to impair or otherwise affect the right
of the Corporation to terminate Dr. Marcus's employment, at will, with or
without good cause.


 


B.                                     If Dr. Marcus’s
employment is terminated by the Corporation without cause, the Corporation
shall:


 


(i)                                     pay
Dr. Marcus a severance allowance equivalent to twelve (12) month’s then current
base salary, payable as a lump sum, within sixty (60) days following the date
of such termination;


 


(ii)                                  pay
to Dr. Marcus within two (2) weeks of the date of termination all outstanding
vacation pay and any earned but unpaid salary or bonuses to the date of such
termination and reimburse Dr. Marcus for any business expense incurred by him
up to and including the date of such termination following provision by Dr.
Marcus of all applicable and necessary receipts.


 


C.                                     Termination upon
Death:  Dr. Marcus’s employment with the
Corporation will cease and this Agreement will terminate without further compensation
if Dr. Marcus dies. Upon his death, his estate will be entitled to any
Corporation paid death benefit in force at the time of such death.  In addition, Dr. Marcus's estate shall be
paid any cash


 


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bonus to which he would have been entitled under Paragraph 3 above.
Likewise, Dr. Marcus’s beneficiaries as designated by him to the Corporation
shall be entitled to receive the benefits, if any, described in Paragraphs 5
and 6 above, and will be entitled to exercise any vested but unexercised stock
options that were held by him at the time of his death, subject to the terms
and conditions of such options.


 


D.                                    Resignation:  Dr. Marcus will provide the Corporation with
two (2) months’ advance notice, in writing, of his resignation from the
Corporation.


 


11.                                 Change of Control: If Dr. Marcus's
employment is terminated by the Corporation without cause upon the consummation
of a “change in control” as defined herein, Dr. Marcus shall receive, within
five (5) days after such termination from the Corporation or its successor, a
lump sum payment equal to three (3) times his base salary during the last
fiscal year in which Dr. Marcus is associated with the Corporation (including
any amounts due as severance under Paragraph 10B.(i) of this Agreement).  For the purposes hereof, “change in control”
shall mean a change in control of a nature that would be required to be
reported in response to Item 5 of Schedule 14D promulgated pursuant to section 14
of the Securities Exchange Act of 1934, as amended (the 1934 Act”), whether or
not the Corporation is then subject to such reporting requirements; provided
that, without limitations, such a change in control shall be deemed to have
occurred if (i) any person other than a trustee or other fiduciary holding
securities under an employee benefit plan of the Corporation is or becomes the
beneficial owner, directly or indirectly, of securities of the Corporation
representing twenty percent (20%) or more of the combined voting power of the
Corporation's then outstanding securities and thereafter the Board adopts a
resolution to the effect that, for the purposes of this Agreement, a change in
control of the Corporation has occurred; such ownership shall be defined
pursuant to Rule 13d-3 of the 1934 Act and includes mergers or acquisitions
whereby an outside party has in excess of twenty percent (20%) of the combined
voting power; (ii) when the Corporation merges or consolidates with any other
person or, entity other than a subsidiary and, upon consummation of such
transaction own less than fifty percent (50%) of the equity securities of the
surviving or consolidated entity; or (iii) a substantial portion of the assets
of the Corporation are sold or transferred to another person or entity.


 


12.                                 Indemnification:  The Corporation will, to the extent permitted
by the laws of the State of New Jersey, indemnify Dr. Marcus against any actual
or threatened action, suit or proceeding, whether civil, criminal,
administrative or investigative, that arises as a consequence of his duties as
an employer and officer of the Corporation. 
Such indemnification will include such expenses as attorneys fees,
judgments, fines and amounts awarded or agreed to in settlement, provided that
Dr. Marcus acted legally and in good faith, or reasonably believed that his
actions were legal and performed in good faith. 
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendre shall not, of itself,
create a presumption that his actions were illegal or not performed in good
faith.


 


13.                                 Representation Concerning Prior Employment:  Dr. Marcus represents and warrants to the
Corporation that none of the duties or obligations for which he is responsible
under this Employment Agreement breaches, or will cause him to breach in the
future, any restrictive covenant or confidentiality obligation under any former
employment agreement.


 


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14.                                 Provisions Operating Following Termination:  Notwithstanding any termination of Dr. Marcus’s
employment with or without cause, any provision of this Agreement necessary to
give it efficacy shall continue in full force and effect following such
termination.


 


15.                                 Notices: 
Any notice to be given in connection with this Agreement shall be given
in writing and may be given by personal delivery, by certified mail, postage
prepaid, or by facsimile transmission, so long as receipt of such transmission
is available, addressed to the recipient as follows:


 


To:                              Stuart
L.Marcus, MD, PhD


20 Dogwood Road


Mount Kisco, New York 10549


 


To:                              D.
Geoffrey Shulman, MD, FRCPC, President


DUSA Pharmaceuticals, Inc.


181 University Avenue


Suite 1208


Toronto, ON M5H 3M7


CANADA


 


or to such other address or individual as may be designated by notice
by either party to the other.  Any notice
given by personal delivery shall be deemed to have been given on the day of
actual delivery and, if made or given by certified mail, on the third day,
other than a Saturday, Sunday or a statutory holiday in Toronto, Ontario,
Canada following the deposit thereof with the U.S. Postal Service.


 


16.                                 Governing Law:  This Agreement shall be governed by and
construed in accordance with the laws of the State of New Jersey.


 


17.                                 Benefit of Agreement:  This Agreement shall enure to the benefit of
and be binding upon the heirs, executives, administrators and legal personal
representatives of Dr. Marcus and to and upon the successors and assigns of the
Corporation, respectively.


 


18.                                 Entire Agreement:  This Agreement constitutes the entire
agreement between the parties hereto with respect to the terms and conditions
of employment of Dr. Marcus and cancels and supersedes any prior understandings
and agreements between the parties to this Agreement.  There are no representations, warranties,
forms, conditions, undertakings or collateral agreements expressed, implied or
statutory between the parties hereto other than as expressly set forth in this
Agreement.


 


19.                                 Severability:  Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision of any other jurisdiction but this Agreement will be
reformed,


 


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construed and enforced in such jurisdiction as if such invalid, illegal
or unenforceable provision had never been contained herein.


 


20.                                 Amendments and Waivers:  Any provision of this Agreement may be
amended or waived only with prior written consent of the Corporation and Dr.
Marcus.


 


IN WITNESS WHEREOF, the parties have duly executed this Agreement.


 


	
  ATTEST:

  	
  DUSA PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Nanette Mantell

  	
   

  	
  By:

  	
  /s/ D. Geoffrey Shulman

  
	
   

  	
   

  	
  D. Geoffrey Shulman, MD, FRCPC

  
	
   

  	
   

  	
  President

  
	
  WITNESS:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  /s/ Stuart L. Marcus

  
	
   

  	
  Stuart L.Marcus, MD, PhD

  



 


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