exv10w1



 





Exhibit 10.1




EMPLOYMENT AGREEMENT




     This EMPLOYMENT AGREEMENT (the “Agreement”) is made and entered into this 7th day
of March, 2007 (the “Effective Date”) by and between REPROS THERAPEUTICS INC., a Delaware
corporation (the “Company”), and ANDRE van AS, M.D., PH.D. (the “Employee”).



WITNESSETH




     WHEREAS, Employee is currently employed by the Company as its Senior Vice President of
Regulatory and Clinical Affairs and Chief Medical Officer pursuant to the terms of that certain
Offer Letter dated as of December 4, 2006 (the “Offer Letter “); and



     WHEREAS, the Offer Letter contemplated and provided that the Company and Employee would enter
into a six month rolling Employment Agreement;



     NOW, THEREFORE, in consideration of the mutual covenants, promises and agreements contained
herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:



     1. Amendment and Restatement of Prior Offer Letter. The Offer Letter is hereby
amended in its entirety and restated herein. Such amendment and restatement is effective upon the
execution of this Agreement by the Company and Employee. Upon such execution, all terms,
conditions and rights granted in the Offer Letter are hereby waived, released and superseded in
their entirety and shall have no further force or effect.



     2. Employment.




     (a) The Company hereby employs the Employee and the Employee hereby accepts employment
as the Senior Vice President of Regulatory and Clinical Affairs and Chief Medical Officer of
the Company, subject to the direction of the Board of Directors and the Company’s President
and CEO. Employee agrees that he shall perform and discharge well and faithfully the duties
and responsibilities that are assigned to him by the Board of Directors and/or the President
and CEO. The Employee agrees to devote such of his time, attention and energy to the
business of the Company, and any of its subsidiaries or affiliates, as may be required to
perform the duties and responsibilities assigned to him by the Board of Directors and/or the
President and CEO to the best of his ability and with requisite diligence.




     (b) In exchange for the accelerated vesting of Employee’s Option (as defined in Section
4(b) below), as provided in Section 4(b) below, in the event of a Change of Control (as
defined in Section 7(d) below) of the Company, Employee agrees that he will be available for
a period of one year to the acquiring company, at a pay rate equal to no less than
Employee’s then-current salary at the time of acquisition, to perform such services as the
acquiring company may reasonably require, consistent with Employee’s duties hereunder.



 









 






     (c) The Employee agrees to comply in all material respects, at all times during the
Term (as defined in Section 3 hereof), with all applicable policies, rules and regulations
of the Company.



     3. Term. Subject to the terms hereof, this Agreement shall commence on the Effective
Date hereof and shall terminate on the first anniversary of the Effective Date (the “Initial
Term”); provided, that this Agreement will automatically renew for successive one-year periods
after the Initial Term (each an “Additional Term”) unless terminated in accordance with Section 7.
The Initial Term together with any Additional Term shall be referred to herein as the “Term.”



     4. Compensation.




     (a) The Company agrees to pay to Employee during the Initial Term a base monthly salary
of $21,750.00, payable in equal semi-monthly installments or on any other periodic basis
consistent with the Company’s payroll procedures, subject only to such payroll and
withholding deductions as are required by applicable federal and state laws. The base
monthly salary for such Additional Term shall be reviewed on an annual basis by the Board of
Directors and recommendations for a salary adjustment shall be made based on both individual
and corporate performance; provided, however, that there is no assurance that the base
monthly salary will be increased for any subsequent Additional Term, such decision to be
within the discretion of the Board of Directors.




     (b) The Company has issued, to Employee, an incentive stock option (the “Option”) to
purchase 50,000 shares of the Company’s Common Stock under the Company’s Stock Option Plan,
at an exercise price equal to the closing price of the Company’s Common Stock on the Nasdaq
Global Market on the date of Employee’s commencement of employment (December 16, 2006).
Such shares shall vest and be exercisable at a rate of 1/12th of the total
thereof for each three month period of Employee’s employment following the Effective Date,
provided that all shares shall vest and be exercisable in the event of a Change of Control
(as defined below).



     5. Fringe Benefits; Expenses.




     (a) So long as the Employee is employed by the Company, the Employee shall participate
in all employee benefit plans sponsored by the Company for its executive employees,
including, but not limited to, vacation policy, health insurance, dental insurance and
retirement plans; provided, however, that the nature, amount and limitations of such plans
shall be determined from time to time by the Board of Directors of the Company.




     (b) The Company agrees to reimburse the Employee for all reasonable out-of-pocket
expenses incurred by him in the performance of his duties, subject to the submission of
appropriate documentation in accordance with the Company’s expense reimbursement policy as
in existence from time to time.




     (c) The Company agrees that it will pay all of Employee’s reasonable expenses
associated with travel between the Company’s headquarters in The Woodlands,



2









 







Texas and Employee’s residence in Pennsylvania, and to/from any other locations
required in the performance of his duties hereunder. If mutually agreed, the Company will
provide temporary living arrangements for Employee in The Woodlands, including rental or
lease of a vehicle.



     6. Confidential Information and Non-Competition. The Employee has executed and agrees
to comply with the Confidentiality, Proprietary Information and Inventions and Non-Competition
Agreement, a copy of which is attached as Exhibit A hereto and incorporated herein by
reference.



     7. Termination.




     (a) At any time during the Term, the Company may, at its sole discretion, discharge the
Employee, with or without “Cause”. Such termination shall be effective on delivery of
written notice to the Employee of the Company’s election to terminate this Agreement under
this Section 7. For purposes of this Agreement, the following events shall constitute
“Cause”: (i) the conviction of the Employee by a court of competent jurisdiction of a crime
involving moral turpitude; (ii) the commission, or attempted commission, by the Employee of
an act of fraud on the Company; (iii) the misappropriation, or attempted misappropriation,
by the Employee of any funds or property of the Company; (iv) the continued and unreasonable
failure by the Employee to perform in any material respect his obligations under the terms
of this Agreement; (v) the knowing engagement by the Employee, without the written approval
of the Board of Directors, in any direct, material conflict of interest with the Company
without compliance with the Company’s conflict of interest policy; (vi) the knowing
engagement by the Employee, without the written approval of the Board of Directors, in any
activity which competes with the business of the Company or which would result in a material
injury to the Company; or (vii) the knowing engagement by the Employee in any activity that
would constitute a material violation of the provisions of the Company’s Insider Trading
Policy or Business Ethics Policy, if any, then in effect.




If the Company terminates the Employee’s employment under this Agreement for reasons other
than Cause or if Employee terminates his employment for Good Reason (as defined below), then
the Company shall, subject to the terms of this Section 7, pay to the Employee (or his
estate or representative, as appropriate) an amount equal to six (6) months compensation at
his then current salary, payable bi-monthly or in accordance with the Company’s payroll
procedures, and shall continue to provide benefits in the kind and amounts provided up
through the date of termination for the six (6) month period, including, without limitation,
continuation of any Company-paid benefits as described in Section 5 of this Agreement for
the Employee and his family. Under no circumstances shall the Employee be entitled to any
compensation or continuation of benefits for any period of time following his termination if
his termination is for Cause. If the Company terminates the Employee’s employment under
this Agreement for reasons other than Cause, the Employee agrees to accept, in full
settlement of any and all claims, losses, damages and other demands that the Employee may
have arising out of such termination as liquidated damages and not as a penalty, the six (6)
month salary payments and continuation of Company-paid benefits as set forth above. The
Employee hereby waives



3









 







any and all rights that he may have to bring any cause of action or proceeding, as a result
of such termination, except to enforce the Company’s obligation to pay amounts owing
pursuant to this Section 7.




     (b) This Agreement will terminate automatically on the earliest to occur of: (i) the
death or disability of the Employee; or (ii) the voluntary retirement of the Employee.




     (c) If at any time during the Term of this Agreement, the Employee is unable to perform
effectively his duties hereunder because of physical or mental disability, the Company shall
continue payment of compensation as provided in Section 4 hereof during the first six-month
period of such disability to the extent not covered by the Company’s disability insurance
policies. On the expiration of such six-month period, the Company, at its sole discretion,
may continue payment of the Employee’s salary for such additional periods as the Company
elects or may terminate this Agreement without any further obligations thereunder. If the
Employee should die during the Term of this Agreement, the Employee’s employment and the
Company’s obligations hereunder shall terminate as of the last day of the month in which the
Employee’s death occurs.




     (d) As used in this Agreement, “Good Reason” shall mean a material diminution in the
title, powers, duties, responsibilities or functions of the Employee as described in Section
2 above within one year following the occurrence of a Change of Control.



     As used in this Agreement, a “Change of Control” shall mean:




     (i) the acquisition after the Effective Date by any individual, entity
or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended) (a “Person”) of beneficial
ownership of 30% or more of either (x) the then outstanding shares of common
stock of the Company (the “Outstanding Common Stock”) or (y) the combined
voting power of the then outstanding voting securities of the Company
entitled to vote generally in the election of directors (the “Outstanding
Voting Securities”), provided that for purposes of this subsection (i), the
following acquisitions shall not constitute a Change of Control: (A) any
acquisition directly from the Company, (B) any acquisition by the Company,
(C) any acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any corporation controlled by the
Company, or (D) any acquisition by any corporation pursuant to a transaction
which complies with clauses (A), (B) and (C) of subsection (ii) hereof; or




     (ii) consummation after the Effective Date of a reorganization, merger
or consolidation or sale or other disposition of all or substantially all of
the assets of the Company (a “Corporate Transaction”) in each case, unless,
following such Corporate Transaction, (A) (1) all or substantially all of
the persons who were the beneficial owners of the Outstanding



4









 






Common Stock immediately prior to such Corporate Transaction
beneficially own, directly or indirectly, more than 30% of the then
outstanding shares of common stock of the corporation resulting from such
Corporate Transaction, and (2) all or substantially all of the persons who
were the beneficial owners of the Outstanding Voting Securities immediately
prior to such Corporate Transaction beneficially own, directly or
indirectly, more than 30% of the combined voting power of the then
outstanding voting securities entitled to vote generally in the election of
directors of the corporation resulting from such Corporate Transaction
(including, without limitation, a corporation which as a result of such
transaction owns the Company or all or substantially all of the Company’s
assets either directly or through one or more subsidiaries) in substantially
the same proportions as their ownership of the Outstanding Common Stock and
the Outstanding Voting Securities immediately prior to such Corporate
Transaction, as the case may be, (B) no Person (excluding (1) any
corporation resulting from such Corporate Transaction or any employee
benefit plan (or related trust) of the Company or such corporation resulting
from such Corporate Transaction and (2) any Person approved by the members
of the Board in office immediately prior to such Corporate Transaction)
beneficially owns, directly or indirectly, 30% or more of the then
outstanding shares of common stock of the corporation resulting from such
Corporate Transaction or the combined voting power of the then outstanding
voting securities of such corporation except to the extent that such
ownership existed prior to such Corporate Transaction and (C) at least a
majority of the members of the board of directors of the corporation
resulting from such Corporate Transaction were members of the Board at the
time of the execution of the initial agreement or of the action of the Board
providing for such Corporate Transaction.




     (e) At any time during the Term of this Agreement, the Employee may terminate this
Agreement by giving at least thirty (30) days written notice to the Company of his intent to
terminate this Agreement, with the date of termination to be specified in such notice.




     (f) If this Agreement is terminated by the Employee pursuant to Section 7(e) hereof,
then the Company will have no obligation to pay any amount to the Employee other than
amounts earned or accrued pursuant to Section 4 hereof, but which have not yet been paid, as
of the date of termination.



     8. Assignment by Employee. Except as otherwise expressly provided herein, the
Employee agrees for himself, and on behalf of his executors and administrators, heirs, legatees,
distributees and any other person or persons claiming any benefits under him by virtue of this
Agreement, that this Agreement and the rights, interests and benefits hereunder shall not be
assigned, transferred, pledged or hypothecated in any way by the Employee or any executor,
administrator, heir, legatee, distributee or person claiming under the Employee by virtue of this
Agreement and shall not be subject to execution, attachment or similar process. Any attempt at
assignment, transfer, pledge or hypothecation or other disposition of this Agreement or of such



5









 







rights, interests and benefits contrary to the foregoing provision, or the levy of any
attachment or similar process thereupon, shall be null and void and without effect.



     9. Successors of the Company. This Agreement shall be binding on and inure to the
benefit of any Successor (as hereinafter defined) of the Company and any such Successor shall be
deemed substituted for the Company under the terms of this Agreement. As used in this Agreement,
the term “Successor” shall include any person, firm, corporation or other business entity which at
any time, whether by merger, purchase or otherwise, acquires all or substantially all of the assets
or businesses of the Company; but no such substitution shall relieve such companies of their
original obligations hereunder. This Agreement may not otherwise be assigned by the Company
without the Employee’s consent to any person, firm, corporation, limited liability company, trust
or other entity.



     10. Notices. All notices or other communications that are required or may be given
under this Agreement shall be in writing and shall be deemed to have been duly given when delivered
in person, transmitted by telecopier or mailed by registered or certified first class mail, postage
prepaid, return receipt requested, to the parties hereto at the address set forth below (as the
same may be changed from time to time by notice similarly given) or the last known business or
residence address of such other person as may be designated by either party hereto in writing.



	 	 	 
	 

	 	If to the Company:
	 
	 	 
	 

	 	Repros Therapeutics Inc.
	 

	 	2408 Timberloch Place, Suite B-7
	 

	 	The Woodlands, Texas 77380
	 

	 	Attn: Joseph S. Podolski
	 
	 	 
	 

	 	If to the Employee:
	 
	 	 
	 

	 	Andre van As, M.D., Ph.D.
	 

	 	1273 Robynwood Lane
	 

	 	Westchester, PA 19380






     11. Waiver of Breach. A waiver by the Company or the Employee of a breach of any
provision of this Agreement by the other party shall not operate or be construed as a waiver of any
other breach by the other party.



     12. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Texas.



     13. Severability. If any provision of this Agreement shall, for any reason, be held
to violate any applicable law, and so much of said Agreement is held to be unenforceable, then the
invalidity of such specific provision herein shall not be held to invalidate any other provision
herein which shall remain in full force and effect.



     14. Amendment. This Agreement constitutes and contains the entire agreement of the
parties and supersedes any and all prior negotiations, correspondence, understandings and
agreements between the parties respecting the subject matter hereof including, but not limited to,



6









 







the Offer Letter. This Agreement may be modified only by an agreement in writing executed by
all the parties hereto.



     15. Headings. The section and subsection headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or interpretation of this
Agreement.



     16. Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original, and all of which together shall constitute one instrument.



     17. Cumulative Remedies. All rights and remedies hereunder are cumulative and are in
addition to all other rights and remedies provided by law, agreement or otherwise.



[Remainder of page left blank intentionally.]




7









 





     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.



	 	 	 	 	 
	 	 	COMPANY:
	 
	 	 	 	 
	 	 	REPROS THERAPEUTICS INC.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Joseph S. Podolski
	 

	 	 	 	 
	 

	 	 	 	Joseph S. Podolski
	 

	 	 	 	President and Chief Executive Officer
	 
	 	 	 	 
	 	 	EMPLOYEE:
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Andre van As, M.D., Ph.D.
	 

	 	 	 	 
	 

	 	 	 	Andre van As, M.D., Ph.D.







 









 








Exhibit A




Proprietary Information and Inventions and Non-Competition Agreement between the Company and

Employee




(See attached)