EXHIBIT 10.(y)


 


EMPLOYMENT
AGREEMENT


 


This
Agreement (“Agreement”) made as of this 1st day
of January, 2004, between DUSA Pharmaceuticals, Inc., a New Jersey
corporation (“DUSA”) and Richard C. Christopher (“Christopher”).


 


WHEREAS,
Christopher has been employed by DUSA since December 18, 2000 and DUSA wishes
to promote Christopher;


 


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


 


1.             Employment:  DUSA hereby employs Christopher and he hereby
accepts such employment as the Vice President, Financial Planning and Business
Analysis.  Christopher 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 financial affairs of DUSA for which he
is responsible.  Christopher shall report
to the President of DUSA.


 


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


 


A.            supervision
and oversight of the financial planning, modeling and analysis for DUSA,
including but not limited to, the evaluation of business plans and/or
opportunities and their impact on the financial results, the budget process, and financial system operations of DUSA;


 


B.                                     preparation and coordination of the annual budget and
strategic plans; and


 


C.            any
additional employment responsibilities as deemed appropriate by the Board of
Directors and DUSA’s senior management, from time to time.


 


3.             Remuneration:  DUSA will pay to Christopher a base salary
equal to One Hundred Twenty-Two Thousand, Five Hundred Dollars ($122,500.00)
per annum at intervals consistent with DUSA’s administrative practices, from
time to time.  This base salary shall be
reviewed by the Board of Directors of DUSA from time to time, not less than on
an annual basis, beginning in January 2005. 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 Christopher 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 Christopher’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, Financial Planning and
Business Analysis, Christopher will operate primarily from the offices of DUSA
located in Wilmington, MA. Christopher acknowledges, however, that there may be
domestic and international travel


 





















 


required on a periodic basis. 
Such travel is understood to be necessary in order to promote the
business of DUSA.


 


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


 


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


 


7.             Vacation:
Christopher shall be entitled to four (4) weeks
of vacation during each year of employment, to be taken at a time or times
acceptable to DUSA, having regard to its operations. Christopher shall be
entitled to carry over up to 80 hours of 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 Christopher on behalf of and in
promoting the interests of DUSA shall be paid by DUSA, including but not
limited to an automobile allowance in the amount of $6,000 per year and cell
phone reimbursement.  If such expenses
are paid in the first instance by Christopher, DUSA agrees that it will
reimburse him therefore upon presentation of appropriate statements, vouchers,
bills and invoices as and when required by DUSA to support the reimbursement
request.


 


9.             Confidential Information:


 


A.            Christopher
understands that in the performance of his services hereunder he may obtain
knowledge of “confidential information”, as hereinafter defined, relating to
the business of DUSA.  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 DUSA 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 DUSA an
opportunity to obtain an advantage over competitors who do not know or use
it.  Christopher 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
DUSA (except to consultants or other agents or representatives of DUSA who are
similarly bound to DUSA 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 DUSA any such confidential
information or any property or material which relates thereto.


 


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


 


C.            (i)            Christopher shall promptly disclose
to DUSA any and all prescription drug products, devices, machines, methods,
inventions, discoveries,


 


2





















 


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 DUSA 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
DUSA, shall at all times and for all purposes be regarded as acquired and held
by Christopher in a fiduciary capacity for, solely for the benefit of, DUSA.


 


(iii) With respect to all such inventions, Christopher
shall:


 


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


 


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


 


(c)           execute
any application for letters patent of the United States and of any and all
other countries covering such inventions, and give to DUSA, 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 DUSA, but without charge for
services beyond the salary paid to him by DUSA, execute all assignment or other
instruments required to transfer and assign to DUSA (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 DUSA;


 


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


 


(f)            in
case DUSA 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 Christopher prior to his employment with DUSA;


 


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


 


(iii)                               becomes public at any
time through no fault of Christopher; or


 


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


 


3





















 


E.             If Christopher’s employment is terminated by
Christopher, Christopher shall not, without the express prior written consent
of DUSA, 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 DUSA’s
products or compounds or mixtures thereof, whether alone or as a partner,
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 Christopher has disclosed to DUSA, in
writing, all the known facts relating to such work or activity and has received
a release, in writing from DUSA, 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 Christopher 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 Christopher a “stockholder” within the meaning of
that term as used in this paragraph, so long as Christopher has no
participation in the management of such corporation.


 


10.           Termination of Employment:


 


A.            DUSA
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) Christopher’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) Christopher’s
conviction in a court of law of a crime or offense, which conviction would
prevent Christopher from effective management of DUSA or materially adversely
affect the reputation of DUSA, as determined by the Board in its sole
discretion, exercising its reasonable judgment, or (iii) Christopher’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 DUSA.  In the event of a
termination for cause, Christopher shall be paid his base salary and unused,
accrued vacation pay, prorated to the date of termination. Nothing contained
herein shall be interpreted to impair or otherwise affect the right of DUSA to
terminate Christopher’s employment, at will, with or without good cause.


 


B.            If
Christopher’s employment is terminated by DUSA without cause, DUSA shall:


 


(i)            pay
Christopher a severance allowance equivalent to six (6) months’ then current
base salary, payable as a lump sum, within sixty (60) days following the date
of such termination;


 


(ii)           pay
to Christopher 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 Christopher for any business expense incurred by him
up to and including the date of such termination following provision by
Christopher of all applicable and necessary receipts.


 


C.            Termination
upon Death:  Christopher’s employment
with DUSA will cease and this Agreement will terminate without further
compensation if Christopher 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, Christopher’s estate shall be
paid any cash bonus to which he would have been entitled under Paragraph 3
above. Likewise,


 


4





















 


Christopher’s
beneficiaries as designated by him to DUSA 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:  Christopher will provide DUSA with two (2)
months’ advance notice, in writing, of his resignation from DUSA.


 


11.           Change of Control: If
Christopher’s employment is terminated by DUSA without cause upon the
consummation of a “change in control” as defined herein, Christopher shall receive,
within five (5) days after such termination from DUSA or its successor, a lump
sum payment equal to three (3) times his base salary during the last fiscal
year in which Christopher is associated with DUSA (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 DUSA 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 DUSA is or becomes the beneficial owner,
directly or indirectly, of securities of DUSA representing twenty percent (20%)
or more of the combined voting power of DUSA’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 DUSA 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 DUSA 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 DUSA are sold or transferred to another person or entity.


 


12.           Indemnification:  DUSA will, to the extent permitted by the
laws of the State of New Jersey, indemnify Christopher 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 DUSA.  Such indemnification
will include such expenses as attorneys fees, judgments, fines and amounts
awarded or agreed to in settlement, provided that Christopher 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:  Christopher
represents and warrants to DUSA 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.


 


14.           Provisions Operating
Following Termination: 
Notwithstanding any termination of Christopher’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:


 


5





















 


To:          Richard C. Christopher


31 Chester Street


Andover, MA 01810


 


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


DUSA
Pharmaceuticals, Inc.


25
Upton Drive


Wilmington,
Massachusetts 01887


 


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 or Sunday 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 inure to the benefit of
and be binding upon the heirs, executives, administrators and legal personal
representatives of Christopher and to and upon the successors and assigns of
DUSA, respectively.


 


18.           Entire Agreement:  This Agreement constitutes the entire
agreement between the parties hereto with respect to the terms and conditions
of employment of Christopher 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, 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 DUSA and Christopher.


 


*****


 


6





















 


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


 


	
  ATTEST:

  	
  DUSA
  PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/
  Mark C. Carota

  	
   

  	
  By:

  	
  /s/
  D. Geoffrey Shulman

  
	
   

  	
   

  	
  D.
  Geoffrey Shulman, MD, FRCPC

  
	
   

  	
   

  	
  President
  and CEO

  
	
   

  	
   

  	
   

  
	
   

  	
  Dated: 1/30/04 

  
	
   

  	
   

  
	
   

  	
   

  
	
  WITNESS:

  	
  EMPLOYEE:

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/
  Marianne Mullin

  	
   

  	
  By:

  	
  /s/
  Richard C. Christopher

  
	
   

  	
   

  	
   

  	
  Richard
  C. Christopher

  
	
   

  	
   

  
	
   

  	
  Dated:
  1/16/04

  



 


7