Exhibit 10.35


 


EMPLOYMENT
AGREEMENT


 


 


THIS
EMPLOYMENT AGREEMENT
(the “Agreement”) is made and entered into effective as of July 22, 2004,
by and between Maxim Pharmaceuticals, Inc., (the “Company”), and Richard A.
Mafrica (“Executive”).  The Company and
Executive are hereinafter collectively referred to as the “Parties,” and
individually referred to as a “Party.”


 


RECITALS


 


A.                                    The Company desires assurance of the
association and services of Executive in order to retain Executive’s
experience, skills, abilities, background and knowledge, and is willing to
engage Executive’s services on the terms and conditions set forth in this
Agreement.


 


B.                                    Executive desires to be in the employ of
the Company, and is willing to accept such employment on the terms and conditions
set forth in this Agreement.


 


AGREEMENT


 


In
consideration of the foregoing recitals and the mutual promises and covenants
herein contained, and for other good and valuable consideration, the Parties,
intending to be legally bound, agree as follows:


 


1.                                       EMPLOYMENT.


 


1.1                                 The Company hereby employs Executive, and Executive
hereby accepts continued employment by the Company, upon the terms and
conditions set forth in this Agreement, effective as of the date first set
forth above (“Commencement Date”).  This
Agreement shall continue in effect until terminated pursuant to Section 5
below.


 


1.2                                 Executive shall be the Vice-President, Commercial
Affairs of the Company (or a position of at least comparable status) and shall
serve in such other capacity or capacities as the Chief Executive Officer
and/or the Company’s Board of Directors (“Board”) may from time to time
prescribe.


 


1.3                                 Executive shall do and perform all services, acts or
things necessary or advisable to manage and conduct the business of the
Company, which are (i) consistent with the Bylaws of the Company and (ii)
subject to the direction and policies from time to time established by the
Board and/or the Chief Executive Officer.


 


1.4                                 Unless the Parties otherwise agree in writing, during
the term of this Agreement, Executive shall perform the services he is required
to perform pursuant to this Agreement at the Company’s offices, located at 8899
University Center Lane, Suite 400 or at any other place at which the Company
maintains an office; provided, however, that the Company may from time to time
require Executive to travel temporarily to other locations in connection with
the Company’s business.


 





















 


2.                                       LOYAL AND CONSCIENTIOUS
PERFORMANCE; NONCOMPETITION.


 


2.1                                 During his employment by the Company, Executive shall
devote his full business energies, interest, abilities and productive time to
the proper and efficient performance of his duties under this Agreement.


 


2.2                                 During the term of this Agreement, Executive shall not
engage in competition with the Company, either directly or indirectly, in any
manner or capacity, as adviser, principal, agent, partner, officer, director,
employee, member of any association or otherwise, in any phase of the business
of developing, manufacturing and marketing of products which are in the same
field of use or which otherwise compete with the products or proposed products
of the Company.


 


2.3                                 Ownership by Executive, as a passive investment, of
less than one percent (1%) of the outstanding shares of capital stock of any
corporation with one or more classes of its capital stock listed on a national
securities exchange or publicly traded in the over-the-counter market shall not
constitute a breach of this paragraph.


 


3.                                       COMPENSATION OF EXECUTIVE.


 


3.1                                 While employed by the Company, as compensation for
proper and satisfactory performance of all duties to be performed hereunder,
the Company shall pay Executive an annual base salary of Two Hundred Eighty
Thousand Dollars, $280,000 per year (the “Base Salary”), payable in regular periodic
payments in accordance with Company policy. 
Such salary shall be prorated for any partial year of employment on the
basis of a 365-day fiscal year.  In
addition, Executive will be eligible for an incentive bonus of up to 25% of
base salary, based upon defined milestones.


 


3.2                                 Executive’s compensation may be changed from time to
time by mutual agreement of Executive and the Board.


 


3.3                                 All of Executive’s compensation shall be subject to
customary withholding taxes and any other employment taxes as are commonly
required to be collected or withheld by the Company.


 


3.4                                 Executive shall be entitled to vacation and illness
days consistent with the Company’s standard practice for its employees
generally.


 


3.5                                 Executive shall, at the discretion of the Board, be
entitled to participate in the benefits for which he is eligible under the
terms and conditions of the standard Company benefits which may be in effect
from time to time and provided by the Company.


 


4.                                       EXPENSE REIMBURSEMENT.


 


4.1                                 Executive shall be entitled to receive prompt
reimbursement of all reasonable business and travel expenses incurred by
Executive in connection with the business of the Company.  Such expenses must be properly accounted for
under the policies and procedures established by the Company.


 


5.                                       TERMINATION.


 


5.1                                 The Company may terminate Executive’s employment under
this Agreement “for cause” by delivery of written notice to Executive
specifying the cause or causes relied upon for such termination.  Any notice of termination delivered pursuant
to this Section 5.1 shall effect


 


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termination as of the
date specified in such notice or, in the event no such date is specified, on
the last day of the month in which such notice is delivered or deemed delivered
as provided in Section 9 below.  If
Executive’s employment under this Agreement is terminated by the Company for
cause under this section, Executive shall be entitled to receive only accrued
Base Salary and other accrued benefits required by law, prorated to the date of
termination.  Executive will not be
entitled to severance pay, pay in lieu of notice or any other such
compensation.  Grounds for the Company to
terminate this Agreement “for cause” shall be limited to the occurrence of any
of the following events:


 


5.1.1                        Executive’s material breach of any
provision of this Agreement;


 


5.1.2                        Executive’s engaging or in any manner
participating in any activity which is competitive with or intentionally
injurious to the Company or which violates any provision of Section 7 of
this Agreement;


 


5.1.3                        Executive’s commission of any fraud
against the Company or use or appropriation for his personal use or benefit of
any funds or properties of the Company;


 


5.1.4                        Executive’s conviction of any crime involving
dishonesty or moral turpitude;


 


5.1.5                        Conduct by Executive which in good faith
and reasonable determination of the Board demonstrates gross unfitness to
serve.


 


Any notice of termination given pursuant to this Section 5.1
shall effect termination as of the date specified in such notice or, in the
event no such date is specified, on the last day of the month in which such
notice is delivered or deemed delivered as provided in Section 9 below.


 


5.2                                 The Company may terminate the Executive’s employment
at any time without cause upon delivery of written notice to the
Executive.  Any notice of termination
given pursuant to this Section 5.2 shall effect termination as of the date
specified in such notice or, in the event no such date is specified, on the last
day of the month in which such notice is delivered or deemed delivered as
provided in Section 9 below.  If
such termination shall occur under this Section 5.2, then in lieu of all
other remedies, and upon the Executive’s furnishing to the Company an effective
waiver and release of claims (in a form acceptable to the Company), Executive
shall be entitled to continuation of Base Salary and health benefits for a
period of six (6) months from said date of termination with such Base Salary
continuation to be at the rate set forth in Section 3.1 or, if greater, at
the rate of Executive’s then current salary in effect as of the date of
termination.


 


5.3                                 The parties may mutually agree at any time to
terminate this Agreement upon such terms and conditions as may be agreed upon
in writing.


 


5.4                                 This Agreement shall terminate without notice upon the
date of Executive’s death or the date when Executive becomes “completely
disabled” as that term is defined in Section 6.2.  In the event of termination due to death or complete
disability, Executive or his estate or personal representative, as the case may
be, shall be entitled to receive only accrued Base Salary and other accrued
benefits required by law, prorated to the date of Executive’s death or the date
when Executive becomes completely disabled.


 


5.5                                 Notwithstanding any provision to the contrary herein,
unless otherwise provided herein or unless otherwise provided by law, Executive
may at any time terminate his employment with the Company hereunder.  In such event, the Company shall not be
liable to Executive for the


 


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payment of any amount
other than accrued Base Salary and other accrued benefits required by law,
prorated to the date of termination.  The
effective date of termination of Executive’s employment under this Section 5.5
shall be determined by the Board upon its receipt of notice of such
termination.  Executive will not be
entitled to severance pay, pay in lieu of notice or any other such
compensation.


 


6.                                       DEATH OR DISABILITY DURING TERM
OF EMPLOYMENT.


 


6.1                                 Upon termination of Executive’s employment pursuant to
Section 5.4, Executive or his estate or personal representative, as the
case may be, shall be entitled to receive Executive’s Base Salary and benefits
for a period of one month following the date of death or the date when
Executive becomes completely disabled.


 


6.2                                 The term “completely disabled” as used in this
Agreement shall mean the inability of Executive to perform the essential
functions of his position under this Agreement by reason of any incapacity,
physical or mental, which the Board of the Company, based upon medical advice
or an opinion provided by a licensed physician acceptable to the Board of the
Company and approved by the Executive, which approval shall not be unreasonably
withheld, determines to have incapacitated Executive from satisfactorily
performing any or all essential functions of his position for the Company
during the foreseeable future.  Based
upon such medical advice or opinion, the determination of the Board of the
Company shall be final and binding and the date such determination is made
shall be the date of such complete disability for purposes of this Agreement.


 


7.                                       CONFIDENTIAL INFORMATION;
NONSOLICITATION.


 


7.1                                 Executive recognizes that his employment with the
Company will involve contact with information of substantial value to the
Company, which is not generally known in the trade, and which gives the Company
an advantage over its competitors who do not know or use it, including but not
limited to, techniques, designs, drawings, processes, inventions, developments,
equipment, prototypes, sales and customer information, and business and
financial information relating to the business, products, practices and
techniques of the Company (hereinafter referred to as “Confidential Information”).  Executive will at all times regard and
preserve as confidential such Confidential Information obtained by Executive
from whatever source and will not, either during his employment with the
Company or thereafter, publish or disclose any part of such Confidential
Information in any manner at any time, or use the same except on behalf of the
Company, without the prior written consent of the Company.  As a condition of this Agreement, Executive
will sign and return a copy of the Company’s “Proprietary Information and
Inventions Agreement,” attached as Exhibit A.


 


7.2                                 While employed by the Company and for one (1) year
thereafter, the Executive agrees that in order to protect the Company’s confidential
and proprietary information from unauthorized use, that Executive will not,
either directly or through others, solicit or attempt to solicit any employee,
consultant or independent contractor of the Company to terminate his or her
relationship with the Company in order to become an employee, consultant or
independent contractor to or for any other person or business entity; or the
business of any customer, vendor or distributor of the Company which, at the
time of termination or one (1) year immediately prior thereto, was listed on
Company’s customer, vendor or distributor list.


 


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8.                                       ASSIGNMENT AND BINDING EFFECT.


 


8.1                                 This Agreement shall be binding upon and inure to the
benefit of Executive and Executive’s heirs, executors, personal
representatives, assigns, administrators and legal representatives.  Because of the unique and personal nature of
Executive’s duties under this Agreement, neither this Agreement nor any rights
or obligations under this Agreement shall be assignable by Executive.  This Agreement shall be binding upon and
inure to the benefit of the Company and its successors, assigns and legal
representatives.


 


9.                                       NOTICES.


 


9.1                                 All notices or demands of any kind required or
permitted to be given by the Company or Executive under this Agreement shall be
given in writing and shall be personally delivered (and receipted for) or
mailed by certified mail, return receipt requested, postage prepaid, addressed
as follows:


 


	
  9.1.1

  	
  If to the Company:

  
	
   

  	
   

  
	
   

  	
  Larry Stambaugh

  
	
   

  	
  Maxim Pharmaceuticals, Inc.

  
	
   

  	
  8899 University Center Lane

  
	
   

  	
  Suite 400

  
	
   

  	
  San Diego, CA  92122

  
	
   

  	
   

  
	
  9.1.2

  	
  If to Executive:

  
	
   

  	
   

  
	
   

  	
  Richard A. Mafrica

  
	
   

  	
  Maxim Pharmaceuticals, Inc.

  
	
   

  	
  8899 University Center Lane

  
	
   

  	
  Suite 400

  
	
   

  	
  San Diego, CA  92122

  



 


Any such written notice
shall be deemed received when personally delivered or three (3) days after its
deposit in the United States mail as specified above.  Either Party may change its address for
notices by giving notice to the other Party in the manner specified in this
section.


 


10.                                 CHOICE OF LAW.


 


10.1                           This Agreement is made in San Diego, California.  This Agreement shall be construed and
interpreted in accordance with the laws of the State of California.


 


11.                                 INTEGRATION.


 


11.1                           This Agreement contains the complete, final and
exclusive agreement of the Parties relating to the subject matter of this
Agreement, and supersedes all prior oral and written employment agreements or
arrangements between the Parties.


 


12.                                 AMENDMENT.


 


12.1                           This Agreement cannot be amended or modified except by
a written agreement signed by Executive and the Company.


 


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13.                                 WAIVER.


 


13.1                           No term, covenant or condition of this Agreement or
any breach thereof shall be deemed waived, except with the written consent of
the Party against whom the wavier is claimed, and any waiver or any such term,
covenant, condition or breach shall not be deemed to be a waiver of any
preceding or succeeding breach of the same or any other term, covenant,
condition or breach.


 


14.                                 SEVERABILITY.


 


14.1                           The finding by a court of competent jurisdiction of
the unenforceability, invalidity or illegality of any provision of this
Agreement shall not render any other provision of this Agreement unenforceable,
invalid or illegal.  Such court shall
have the authority to modify or replace the invalid or unenforceable term or
provision with a valid and enforceable term or provision which most accurately
represents the parties’ intention with respect to the invalid or unenforceable
term or provision.


 


15.                                 INTERPRETATION; CONSTRUCTION.


 


15.1                           The headings set forth in this Agreement are for
convenience of reference only and shall not be used in interpreting this
Agreement.  This Agreement has been
drafted by legal counsel representing the Company, but Executive has been
encouraged, and has consulted with, his own independent counsel and tax
advisors with respect to the terms of this Agreement.  The Parties acknowledge that each Party and
its counsel has reviewed and revised, or had an opportunity to review and
revise, this Agreement, and the normal rule of construction to the effect that
any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Agreement.


 


16.                                 REPRESENTATIONS AND WARRANTIES.


 


16.1                           Executive represents and warrants that he is not
restricted or prohibited, contractually or otherwise, from entering into and
performing each of the terms and covenants contained in this Agreement, and
that his execution and performance of this Agreement will not violate or breach
any other agreements between Executive and any other person or entity.


 


17.                                 COUNTERPARTS.


 


17.1                           This Agreement may be executed in two counterparts,
each of which shall be deemed an original, all of which together shall
contribute one and the same instrument.


 


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


 


	
   

  	
  The Company:

  
	
   

  	
   

  
	
   

  	
  MAXIM
  PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:  /s/ Larry G. Stambaugh

  
	
   

  	
  Larry G.
  Stambaugh

  
	
   

  	
  Chairman of the
  Board, President and Chief

  Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EXECUTIVE:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Richard A.
  Mafrica

  
	
   

  	
  Richard A.
  Mafrica

  



 


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