EXHIBIT 10.(w.1)


 


EMPLOYMENT AGREEMENT


 


This
Agreement (“Agreement”) made as of February 14, 2000, between DUSA
Pharmaceuticals, Inc., a New Jersey corporation (the “Corporation”) and Mark
Carota, (“Carota”), who resides at 144 Old Westford Road, Chelmsford,
Massachusetts 01824:


 


NOW,
THEREFORE, in consideration of the covenants and promises contained herein and in
accordance with the terms and conditions set forth in this Agreement, the
parties mutually agree as follows:


 


1.                                       Employment:  The Corporation hereby employs Carota and he
hereby accepts such employment as the Vice President - Operations of the
Corporation. Carota agrees to devote his full time and best efforts to manage
all activities relating to the manufacturing operations of the  drugs and devices products of the Corporation
in a cost effective and regulatory compliant manner.  Carota shall supervise and coordinate
manufacturing activities, whether at facilities of the Corporation or at
third-party manufacturers.  Carota shall
report to the Chief Operating Officer of the Corporation as determined by the
Corporations board of directors.


 


2.                                       Duties and Responsibilities: 
Notwithstanding any language contained herein to the contrary, Carota’s
responsibilities (by way of example and not by way of limitation) shall
include:


 


A.                                   Supervision and oversight of staff and
operations regarding the manufacturing of drugs and devices to support clinical
activities or for post-regulatory approval supplies;


 


B.                                     Management of operational budgets and
production functions to meet demand for the Corporation’s products and to
maintain cost objectives relating to cost of goods;


 


C.                                     Management of Quality Control and Quality
Assurance activities of the Corporation in compliance with GMP/QSR regulations
and customer requirements;


 


D.                                    Supervision and hiring of management,
technical, and administrative personnel as authorized in the budget, from time,
to time;


 


E.                                      Any
additional responsibilities assigned by the Chief Operating Officer or Chief
Executive Officer, from time to time.


 





















 


3.                                       Remuneration:  The
Corporation shall pay to Carota an initial base salary equal to $140,000 per
annum at intervals consistent with the Corporation’s administrative practices,
from time to time.  His base salary shall
be reviewed by the Board, from time to time, not less than on an annual basis,
beginning in January, 2001.  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 Carota in an amount up to 30% of Carota’s 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 Carota’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 - Operations, Carota shall operate from the offices
currently located in Wilmington, Massachusetts. 
Carota 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 effectively conduct his responsibilities for the Corporation.


 


5.                                       Benefits:  Carota 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:  As an
incentive to Carota to continue in the employment with the Corporation, the
Corporation hereby agrees to grant to Carota incentive stock options to
purchase up to 10,000 shares of the Corporation’s common stock at the closing
price of the common stock on NASDAQ on the date of grant, pursuant to the
Corporation’s 1996 Omnibus Plan, as amended. 
These options will vest at the rate of twenty-five percent (25%) per
year over four (4) years, commencing on the date hereof, and will have a term
of ten (10) years. Thereafter, Carota shall be entitled to participate in the
1996 Omnibus Plan, 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.                                       Other Allowances:  The
Corporation shall provide on-line access to the Corporation’s LAN system for
Carota’s use at his residence.


 


8.                                       Vacation:  Carota
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.  Carota 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.


 





















 


9.                                       Expenses: All reasonable travel and other expenses incident
to the rendering of services by Carota on behalf of and in promoting the
interests of the Corporation shall be paid by the Corporation.  If such expenses are paid in the first
instance by Carota, the Corporation agrees that it will reimburse Carota
therefor upon presentation of appropriate statements, vouchers, bills and
invoices as and when required by the Corporation to support the reimbursement
request.


 


10.                                 Confidential Information:


 


A.                                   Carota
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.  Carota 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 Carota’s possession or under his control, whether prepared by
Carota or others, will be left with or immediately returned to the Corporation
by Carota.


 


C.                                     (i)                                     Carota
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 Carota in a fiduciary capacity for, solely for
the benefit of, the Corporation.


 


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


 


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


 


(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 Carota 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 Carota; or


 


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


 





















 


E.                                      Carota
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 would lead to the
development of photodynamic therapy or photodetection products directly
competitive (i.e., medically or therapeutically) with the Corporation’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 Carota 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 Carota 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 Carota a “stockholder” within the meaning of that
term as used in this paragraph, so long as Carota has no participation in the
management of such corporation.


 


11.                                 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) Carota’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) Carota’s
conviction in a court of law of a crime or offense, which conviction would
prevent Carota from effective management of the Company or materially adversely
affect the reputation of the Company, as determined by the Board in its sole
discretion, exercising its reasonable judgment, or (iii) Carota’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, Carota 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 Carota’s employment, at will, with or without good cause.


 


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


 


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


 


C.                                     Termination
upon Death:  Carota’s employment with the
Corporation will cease and this Agreement will terminate without further
compensation if Carota 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, Carota’s estate shall be paid
any cash bonus to which he would have been entitled under Paragraph 3 above.
Likewise, Carota’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:  Carota will provide the Corporation with two
(2) months’ advance notice, in writing, of his resignation from the
Corporation.


 


12.                                 Indemnification:  The
Corporation shall, to the extent permitted by the laws of the State of New
Jersey, indemnify Carota 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 Carota 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:  Carota represents and warrants to the
Corporation that none of the duties or obligations for which he is responsible
under this  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 Carota’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:                              Mark
Carota


144
Old Westford Rd.


Chelmsford,
MA 01824


 





















 


To:                              Ronald
L. Carroll


DUSA
Pharmaceuticals, Inc.


25
Upton Drive


Wilmington,
MA 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, 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 Carota
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 Carota and
cancels and supersedes any prior understandings and agreements between the
parties to this Agreement;provided, however, that the Confidentiality Agreement
dated February 11, 2000 shall remain in full force and effect.  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 the Corporation and Carota.


 


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


 


	
  ATTEST:

  	
  DUSA
  PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Susan B.
  Tennent

  	
   

  	
  By:

  	
  /s/ Ronald L.
  Carroll

  
	
   

  	
   

  	
  Ronald L.
  Carroll, Executive VP and COO

  
	
   

  	
   

  	
   

  
	
  WITNESS:

  	
   

  
	
   

  	
   

  
	
  /s/ Scott
  Lundahl

  	
   

  	
  /s/ Mark Carota

  
	
   

  	
  Mark Carota