**Exhibit 10.45**
**ADVANCIS PHARMACEUTICAL CORPORATION**
EXECUTIVE EMPLOYMENT AGREEMENT
     THIS EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”) is made this 4th day of August 2004 byand between Joseph J. Rogus, P.E., a resident of Whitehouse Station, New Jersey (the “Employee”),and Advancis Pharmaceutical Corporation, a corporation organized and existing under the laws of theState of Delaware (the “Company”).
BACKGROUND
     The Company is engaged in the business of developing, improving and promoting antibiotictherapies and the delivery and dosage of antibacterials, as well as extending the market and patentlife of important anti-infectives and oncology (as may be modified or expanded by the Companyduring the term of this Agreement, collectively and individually, the “Business”).
     The Company desires to employ the Employee and the Employee desires to be employed by theCompany, upon the terms and conditions set forth in this Agreement.
     NOW, THEREFORE, in consideration of the mutual covenants and obligations contained herein, andintending to be legally bound, the parties, subject to the terms and conditions set forth herein,agree as follows:
     1. **Employment and Term**. The Company hereby employs the Employee and the Employeehereby accepts employment with the Company, as Senior Vice President, Technical Operations (the“Position”), commencing on August 1, 2004 (the “Commencement Date”). Employee is employed by theCompany on an at will basis. The Employee shall be entitled to terminate this Agreement at anytime upon ninety (90) days prior written notice to the Company. The Company shall be entitled toterminate this Agreement at any time subject to the provisions of Section 8 hereof. (The entireperiod of time during which the Employee is employed by the Company is referred to herein as the“Term”).
     2. **Duties**. During the Term, the Employee shall serve the Company faithfully and tothe best of his ability and shall devote his full time, attention, skill and efforts to theperformance of the duties required by or appropriate for the Position. Subject to the oversight ofthe Senior Vice President & CFO, the Employee shall (i) have responsibility for the planning,directing and prioritizing of technical operations activities and (ii) such duties andresponsibilities as may be assigned to him from time to time by the Senior Vice President & CFO.The Employee shall perform such duties and responsibilities at the Company’s facility located inGermantown, Maryland or at such other location as may be mutually agreed upon by the Company andthe Employee in accordance with the business needs of the Company. The Employee, as Senior VicePresident, Technical Operations shall report to the Senior Vice President & CFO.
 

 

     3. **Other Business Activities**. Except with the prior written consent of the Company inits sole discretion, the Employee shall not engage, directly or indirectly, during the Term, in anyother business activities or pursuits whatsoever, except activities in connection with charitableor civic activities, personal investments and serving as an executor, trustee or in other similarfiduciary capacity; provided that any such activities do not interfere with the performance of hisresponsibilities and obligations pursuant to this Agreement.
     4. **Compensation**. The Company shall pay the Employee, and the Employee hereby agreesto accept, as compensation for all services to be rendered to the Company and for the Employee’sintellectual property covenants and assignments and covenant not to compete, as provided inSections 6 and 7 hereof, the compensation set forth in this Section 4.
          4.1 Salary. The Company shall pay the Employee a base salary at the annual rate ofTwo Hundred Forty Thousand Dollars ($240,000.00) (as the same may hereafter be adjusted, the“Salary”) during the Term of this Agreement. The Salary shall be inclusive of all applicableincome, social security and other taxes and charges that are required by law to be withheld by theCompany (collectively, “Taxes”) and shall be paid and withheld in accordance with the Company’snormal payroll practice for its executive employees from time to time in effect. The Salary shallbe subject to increase at the option and in the sole discretion of the Company based upon thedemonstrated performance of the Employee.
          4.2 Bonus. Upon the execution of this Agreement, the Employee shall be eligible to beawarded an annual cash bonus, which bonus shall be determined by the Chairman, President & CEO andthe Board of Directors and shall be in a target amount of Thirty percent (30%) of Salary paidduring such applicable period, less Taxes, provided that the Employee shall have achieved all ofhis performance objectives established for such period. Such bonus shall be determined and paidwithin ninety (90) days after the conclusion of such year.
          4.3 Fringe Benefits. The Employee shall be entitled to participate in the followingprograms and receive the following benefits (collectively, the “Benefits”) in accordance with thefollowing provisions.
               (a) The Employee shall be entitled to participate in any retirement, health or dental programsgenerally made available to executive employees of the Company.
               (b) The Employee shall be entitled to participate in all vacation, life and disabilityinsurance and other fringe benefit programs of the Company to the extent and on the same terms andconditions as are accorded to other executive employees of the Company.
          4.4 Reimbursement of Expenses. During the Term, the Employee shall be reimbursed foritems of travel, food and lodging and miscellaneous expenses reasonably incurred by him on behalfof the Company, provided that such expenses are incurred,   Employee Name: Joseph J. Rogus, P.E. Employment Agreement Ver. 01/2003Dated August 4, 2004 Page 2 of 14
 

 

documented and submitted to the Company,all in accordance with the reimbursement policies of the Company as in effect from time to time.
     5. **Confidentiality**. The Employee recognizes and acknowledges that the ProprietaryInformation (as hereinafter defined) is a valuable, special and unique asset of the Company. As aresult, both during the Term and thereafter, the Employee shall not, without the prior writtenconsent of the Company, for any reason either directly or indirectly divulge to any third-party oruse for his own benefit, or for any purpose other than the exclusive benefit of the Company, anyconfidential, proprietary, business and technical information or trade secrets of the Company or ofany subsidiary or affiliate of the Company (the “Proprietary Information”) revealed, obtained ordeveloped in the course of his employment with the Company. Proprietary Information shall includeany confidential or proprietary information or trade secrets relating to any patents or otherintellectual property assigned by the Employee to the Company. Proprietary Information also shallinclude, but shall not be limited to the intangible personal property described in Section 6(b)hereof and, in addition, technical information, including research design, results, techniques andprocesses; apparatus and equipment design; computer software; technical management information,including project proposals, research plans, status reports, performance objectives and criteria,and analyses of areas for business development; and business information, including project,financial, accounting and personnel information, business strategies, plans and forecasts, customerlists, customer information and sales and marketing plans, efforts, information and data. Inaddition, “Proprietary Information” shall include all information and materials received by theCompany or Employee from a third party subject to an obligation of confidentiality and/ornon-disclosure. Nothing contained herein shall restrict the Employee’s ability to make suchdisclosures during the course of his employment as may be necessary or appropriate to the effectiveand efficient discharge of the duties required by or appropriate for the Position or as suchdisclosures may be required by law. Furthermore, nothing contained herein shall restrict theEmployee from divulging or using for his own benefit or for any other purpose any ProprietaryInformation that is readily available to the general public so long as such information did notbecome available to the general public as a direct or indirect result of the Employee’s breach ofthis Section 5. Failure by the Company to mark any of the Proprietary Information as confidentialor proprietary shall not affect its status as Proprietary Information under the terms of thisAgreement.
     6. **Property**.
          6.1 Removal and Distribution. All right, title and interest in and to ProprietaryInformation shall be and remain the sole and exclusive property of the Company. During the Term,the Employee shall not remove from the Company’s offices or premises anydocuments, records, notebooks, files, correspondence, reports, memoranda or similar materials of orcontaining Proprietary Information, or other materials or property of any kind belonging to theCompany, unless necessary or appropriate in accordance with the duties and responsibilitiesrequired by or appropriate for the Position and, in the event that such materials or property areremoved, all of the foregoing shall be returned to their proper files or places of safekeeping aspromptly as possible after the removal shall serve its specific purpose. The Employee shall notmake, retain, remove and/or distribute any copies of any of the foregoing for any reason   Employee Name: Joseph J. Rogus, P.E. Employment Agreement Ver. 01/2003Dated August 4, 2004 Page 3 of 14
 

 

whatsoever, except as may be necessary in the discharge of the assigned duties and shall notdivulge to any third person the nature of and/or contents of any of the foregoing or of any otheroral or written information to which he may have access or with which for any reason he may becomefamiliar, except as disclosure shall be necessary in the performance of the duties; and upon thetermination of his employment with the Company, the Employee shall return to the Company alloriginals and copies of the foregoing then in his possession or under his control, whether preparedby the Employee or by others.
          6.2 Developments.
               (a) The Employee acknowledges that all right, title and interest in and to any and allwritings, documents, inventions, discoveries, ideas, developments, information, computer programsor instructions (whether in source code, object code, or any other form), algorithms, formulae,plans, memoranda, tests, research, designs, innovations, systems, analyses, specifications, models,data, diagrams, flow charts, and/or techniques (whether patentable or non-patentable or whetherreduced to written or electronic form or otherwise) that the Employee creates, makes, conceives,discovers or develops, either solely or jointly with any other person, at any time during the Term,whether during working hours or at the Company’s facility or at any other time or location, andwhether upon the request or suggestion of the Company or otherwise, (collectively, “IntellectualWork Product”) shall be the sole and exclusive property of the Company. The Employee shallpromptly disclose to the Company all Intellectual Work Product, and the Employee shall have noclaim for additional compensation for the Intellectual Work Product, except for any excludedIntellectual Work Product that is wholly unrelated to the pharmaceutical industry, in the broadestsense, provided that such Intellectual Work Product is not conceived, discovered or developed,either solely or jointly with any other person during working hours or at the Company’s facility orusing any other Company resource.
               (b) The Employee acknowledges that all the Intellectual Work Product that is copyrightableshall be considered a work made for hire under United States Copyright Law. To the extent that anycopyrightable Intellectual Work Product may not be considered a work made for hire under theapplicable provisions of the United States Copyright Law, or to the extent that, notwithstandingthe foregoing provisions, the Employee may retain an interest in any Intellectual Work Product, theEmployee hereby irrevocably assigns and transfers to the Company any and all right, title, orinterest that the Employee may have in the Intellectual Work Product under copyright, patent, tradesecret and trademark law, in perpetuity or for the longest period otherwise permitted by law,without the necessity of further consideration. The Company shall be entitled to obtain and holdin its own name all copyrights, patents, trade secrets, and trademarks with respect thereto.
               (c) The Employee shall reveal promptly all information relating to any such IntellectualProperty to the Board of Directors of the Company, and, at the Company’s expense, shall cooperatewith the Company and execute such documents as may be necessary or appropriate (i) in the eventthat the Company desires to seek copyright, patent or trademark protection, or other analogousprotection, thereafter relating to the Intellectual Work Product, and when such protection isobtained, renew and restore the same, or (ii) to defend any   Employee Name: Joseph J. Rogus, P.E. Employment Agreement Ver. 01/2003Dated August 4, 2004 Page 4 of 14
 

 

opposition proceedings in respect ofobtaining and maintaining such copyright, patent or trademark protection, or other analogousprotection.
               (d) In the event the Company is unable after reasonable effort to secure the Employee’ssignature on any of the documents referenced in Section 6.2 (c) hereof, whether because of theEmployee’s physical or mental incapacity or for any other reason whatsoever, the Employee herebyirrevocably designates and appoints the Company and its duly authorized officers and agents as theEmployee’s agent and attorney-in-fact, to act for and on the behalf and stead to execute and fileany such documents and to do all other lawfully permitted acts to further the prosecution andissuance of any such copyright, patent or trademark protection, or other analogous protection, withthe same legal force and effect as if executed by the Employee.
               (e) The Employee represents that the innovations, designs, systems, analyses, ideas, and allcopyrights, patents, trademarks and trade names, or similar intangible personal property(collectively, the “Pre-existing Property”) identified on Schedule I hereof comprise all ofthe innovations, designs, systems, analyses, ideas and all copyrights, patents, trademarks andtrade names, or similar intangible personal property that the Employee has made or conceived ofprior to the date hereof, and same are excluded from the operation of the other provisions of thisSection 6.2. In the event that the Employee learns of any Pre-existing Property that heinadvertently failed to include in Schedule I, and the circumstances surrounding the failure ofsuch inclusion are reasonably satisfactory to the Company, the Employee and the Company shalljointly amend Schedule I to include such property.
     7. **Covenant not to Compete**.
          7.1 Restrictions. Provided that the Company is in compliance with Section 8.4 hereof,if applicable, the Employee shall not, during the Term and for a period of two (2) years thereafter(the “Restricted Period”), except as an employee of the Company and in order to carry out theEmployee’s duties hereunder, do any of the following directly or indirectly without the priorwritten consent of the Company in its sole discretion:
               (a) engage or participate, directly or indirectly, in any business activity competitive withthe Business or the business of the Company or any of the Company’s subsidiaries or affiliates asconducted during the Term;
               (b) become interested (as owner, stockholder, lender, partner, co-venturer, director, officer,employee, agent, consultant or otherwise) in any person, firm,corporation, association or other entity engaged in any business that is competitive with theBusiness or of the business of the Company or any subsidiary or affiliate of the Company asconducted during the Term, or become interested in (as owner, stockholder, lender, partner,co-venturer, director, officer, employee, agent, consultant or otherwise) any portion of thebusiness of any person, firm, corporation, association or other entity where such portion of suchbusiness is competitive with the Business of the Company or the business of any subsidiary oraffiliate of the Company as conducted during the Term (notwithstanding the foregoing, the   Employee Name: Joseph J. Rogus, P.E. Employment Agreement Ver. 01/2003Dated August 4, 2004 Page 5 of 14
 

 

Employeemay hold not more than one percent (1%) of the outstanding securities of any class of anypublicly-traded securities of a company that is engaged in activities referenced in this Section7.1.
               (c) solicit, call on or transact or engage in any business activity with, either directly orindirectly, any (i) customer with whom the Company shall have dealt at any time during the one (1)year period immediately preceding the termination of the Employee’s employment hereunder, or (ii)corporate partner, collaborator, independent contractor or supplier with whom the Company shallhave dealt at any time during the one (1) year period immediately preceding the termination of theEmployee’s employment hereunder;
               (d) influence or attempt to influence any then current or prospective supplier, customer,corporate partner, collaborator, or independent contractor of the Company to terminate or modifyany written or oral agreement or course of dealing with the Company; or
               (e) influence or attempt to influence any person either (i) to terminate or modify anemployment, consulting, agency, distributorship or other arrangement with the Company, or (ii) toemploy or retain, or arrange to have any other person or entity employ or retain, any person whohas been employed or retained by the Company as an employee, consultant, agent or distributor ofthe Company at any time during the one (1) year period immediately preceding the termination of theEmployee’s employment hereunder.
          7.2 Acknowledgment. The Employee acknowledges that he has carefully read andconsidered the provisions of this Section 7. The Employee acknowledges that the foregoingrestrictions will limit his ability to earn a livelihood in a business competitive with theBusiness, but he nevertheless believes that he has received and will receive sufficientconsideration and other benefits in connection with the payment by the Company of the compensationset forth in Sections 4 and 8.4 to justify such restrictions, which restrictions the Employee doesnot believe would prevent him from earning a living in businesses that are not competitive with theBusiness and without otherwise violating the restrictions set forth herein.
          8. **Early Termination**. The Employee’s employment hereunder may be terminated duringthe Term upon the occurrence of any one of the events described in this Section 8. Upontermination, the Employee shall be entitled only to such compensation and benefits as described inthis Section 8.   Employee Name: Joseph J. Rogus, P.E. Employment Agreement Ver. 01/2003Dated August 4, 2004 Page 6 of 14
 

 

          8.1 Involuntary Termination.
               (a) Termination for Disability.
                    (i) In the event of the disability of the Employee such that the Employee is unable to performthe duties and responsibilities hereunder to the full extent required by this Agreement by reasonsof illness, injury or incapacity for a period of more than one hundred eighty (180) consecutivedays or more than one hundred eighty (180) days, in the aggregate, during any three hundredsixty-five (365) day period (“Disability”), the Company shall have the right to terminateEmployee’s employment hereunder by written notice to the Employee.
                    (ii) In the event of a termination of the Employee’s employment hereunder pursuant to Section8.1(a)(i), the Employee will be entitled to receive all accrued and unpaid (as of the date of suchtermination) Salary and applicable Benefits; provided that the Employee has complied with all ofhis obligations under this Agreement and continues to comply with all of his surviving obligationshereunder listed in Section 10 and a pro-rata percentage of the bonus (provided in Section 4.2) forthe last fiscal year of the Company prior to the date of Employee’s termination. Except asspecifically set forth in this Section 8.1(a)(ii) or as provided by applicable law, the Companyshall have no liability or obligation to the Employee for compensation or benefits hereunder byreason of, or subsequent to, such termination.
               (b) Termination by Death. In the event that the Employee dies during the Term, theEmployee’s employment hereunder shall be terminated thereby and the Company shall pay to theEmployee’s executors, legal representatives or administrators an amount equal to the accrued andunpaid portion of the Salary for the month in which he dies and a pro-rata percentage of the bonus(provided in Section 4.2) for the last fiscal year of the Company prior to the date of Employee’stermination. Except as specifically set forth in this Section 8.1(b) or as provided by applicablelaw, the Company shall have no liability or obligation hereunder to the Employee’s executors, legalrepresentatives, administrators, heirs or assigns or any other person claiming under or through himby reason of or subsequent to the Employee’s death.
          8.2 Termination for Cause.
               (a) The Company shall have the right to terminate the Employee’s employment hereunder at anytime for “cause” upon written notice to the Employee. For purposes of this Agreement, “cause”shall mean the Employee’s (including, if the Employee is not a natural person, any employee of orcontractor to the Employee who is involved, directly or indirectly, in the provision of services tothe Corporation) (a) dishonesty, embezzlement, theft or fraudulent misconduct; (b) abuse of acontrolled substance that materially impairs the performance of the Employee’s duties to theCorporation; (c) conduct adverse to the business, interests, or reputation of the Corporation; (d)material breach of any of the terms hereof or of any agreement between the Corporation and theEmployee, (including, but not limited to, terms relating to non-disclosure, non-competition andinvention assignment) which, if curable, remains   Employee Name: Joseph J. Rogus, P.E. Employment Agreement Ver. 01/2003Dated August 4, 2004 Page 7 of 14
 

 

uncuredthirty (30) days after the Employee receives written notice of such breach; or (e) commission of afelony.
               (b) In the event of a termination of the Employee’s employment hereunder pursuant to Section8.2(a), the Employee shall be entitled to receive all accrued but unpaid (as of the effective dateof such termination) Salary and Benefits. All Salary and Benefits shall cease at the time of suchtermination, subject to the requirements of applicable law. Except as specifically set forth inthis Section 8.2, the Company shall have no liability or obligation hereunder by reason of orsubsequent to such termination.
          8.3 Termination by the Company Without Cause.
               (a) Notwithstanding anything to the contrary set forth herein, the Company shall have theright to terminate the Employee’s employment hereunder at any time, for any reason or no reason,with or without cause, effective upon the date designated by the Company upon written notice to theEmployee.
               (b) In the event of a termination of the Employee’s employment hereunder pursuant to Section8.3(a), the Employee shall be entitled to receive all accrued but unpaid (as of the effective dateof such termination) Salary; a pro-rata percentage of the bonus (provided in Section 4.2) for thelast fiscal year of the Company prior to the date of the Employee’s termination; and the severancepayments and Benefits in the manner set forth in Section 8.4; provided that the Employee hascomplied with all of his obligations under this Agreement and continues to comply with all of hissurviving obligations hereunder listed in Section 10. All Salary shall cease at the time of suchtermination, except as required under applicable law. Except as specifically set forth in thisSection 8.3, the Company shall have no liability or obligation hereunder by reason of or subsequentto such termination.
          8.4 Severance.
               (a) In the event of the termination of the Employee’s employment under Section 8.3 theEmployee shall be entitled to severance pay in an amount equal to twenty-four (24) months ofSalary, subject to all withholding obligations, calculated on the basis of the Salary in effect atthe date of termination and paid in the same manner as Salary was then paid hereunder.
               (b) The Employee shall be entitled to receive all Benefits to which he was entitled on thedate preceding his termination for the period of time during which he is entitled to receiveseverance pay hereunder.
               (c) Except as provided in subsections (a) and (b) above, the Company shall have no liabilityor obligation by reason of or subsequent to the termination of the employment relationship betweenthe Company and the Employee.   Employee Name: Joseph J. Rogus, P.E. Employment Agreement Ver. 01/2003Dated August 4, 2004 Page 8 of 14
 

 

     9. **Representations, Warranties and Covenants of the Employee****.**
          9.1 Restrictions. The Employee represents and warrants to the Company that:
               (a) There are no restrictions, agreements or understandings whatsoever to which the Employeeis a party which would prevent or make unlawful the Employee’s execution of this Agreement or theEmployee’s employment hereunder, or which is or would be inconsistent or in conflict with thisAgreement or the Employee’s employment hereunder, or, except as set forth in any agreementspreviously provided to the Company, would prevent, limit or impair in any way the performance bythe Employee of the obligations hereunder; and
               (b) The Employee has disclosed to the Company all restraints, confidentiality commitments orother employment restrictions that he has with any other employer, person or entity.
          9.2 Obligations to Former Employers. The Employee covenants that in connection withhis provision of services to the Company, he shall not breach any obligation (legal, statutory,contractual or otherwise) to any former employer or other person, including, but not limited toobligations relating to confidentiality and proprietary rights.
          9.3 Obligations Upon Termination. Upon and after his termination or cessation ofemployment with the Company and until such time as no obligations of the Employee to the Companyhereunder exist, the Employee (i) shall provide a complete copy of this Agreement to anyprospective employer or other person, entity or association engaged in the Business, with whom orwhich the Employee proposes to be employed, affiliated, engaged, associated or to establish anybusiness or remunerative relationship prior to the commencement thereof and (ii) shall notify theCompany of the name and address of any such person, entity or association prior to his employment,affiliation, engagement, association or the establishment of any business or remunerativerelationship.
     10. **Survival of Provisions**. The provisions of this Agreement set forth in Sections 5,6, 7, 8, 9, 10, 19 and 20 hereof shall survive the termination of the Employee’s employmenthereunder.
     11. **Successors and Assigns**. This Agreement shall inure to the benefit of and bebinding upon the Company and the Employee and their respective successors, executors,administrators, heirs and/or assigns; provided that neither party shall make any assignment of thisAgreement or any interest herein, by operation of law or otherwise, without the prior writtenconsent of the other party.
     12. **Notice**. Any notice hereunder by either party shall be given by personal deliveryor by sending such notice by certified mail, return-receipt requested, or telecopied, addressed ortelecopied, as the case may be, to the other party at its address set forth below or at   Employee Name: Joseph J. Rogus, P.E. Employment Agreement Ver. 01/2003Dated August 4, 2004 Page 9 of 14
 

 

such other address designated by notice in the manner provided in this section. Such notice shallbe deemed to have been received upon the date of actual delivery if personally delivered or, in thecase of mailing, two (2) days after deposit with the U.S. mail, or, in the case of facsimiletransmission, when confirmed by the facsimile machine report.      (a) if to the Company, to:        Advancis Pharmaceutical Corporation20425 Seneca Meadows ParkwayGermantown, Maryland 20876Attention: Human ResourcesFacsimile: (301) 944-6701        with a copy to:        Howard Schwartz, EsquirePiper Rudnick LLP6225 Smith AvenueBaltimore, Maryland 21209-3600Facsimile: (410) 580-3251        (b) if to the Employee, to:        Joseph J. Rogus, P.E.3 Glenmont RoadWhitehouse Station, NJ 08889  
     13. **Entire Agreement; Amendments**. This Agreement contains the entire agreement andunderstanding of the parties hereto relating to the subject matter hereof, and merges andsupersedes all prior and contemporaneous discussions, agreements and understandings of every naturebetween the parties hereto relating to the employment of the Employee with the Company. ThisAgreement may not be changed or modified, except by an agreement in writing signed by each of theparties hereto.
     14. **Waiver**. The waiver of the breach of any term or provision of this Agreement shallnot operate as or be construed to be a waiver of any other or subsequent breach of this Agreement.
     15. **Governing Law**. This Agreement shall be construed and enforced in accordance withthe laws of the State of Delaware, without regard to the principles of conflicts of laws of anyjurisdiction.   Employee Name: Joseph J. Rogus, P.E. Employment Agreement Ver. 01/2003Dated August 4, 2004 Page 10 of 14
 

 

     16. **Invalidity**. If any provision of this Agreement shall be determined to be void,invalid, unenforceable or illegal for any reason, the validity and enforceability of all of theremaining provisions hereof shall not be affected thereby. If any particular provision of thisAgreement shall be adjudicated to be invalid or unenforceable, such provision shall be deemedamended to delete therefrom the portion thus adjudicated to be invalid or unenforceable, suchamendment to apply only to the operation of such provision in the particular jurisdiction in whichsuch adjudication is made; provided that, if any provision contained in this Agreement shall beadjudicated to be invalid or unenforceable because such provision is held to be excessively broadas to duration, geographic scope, activity or subject, such provision shall be deemed amended bylimiting and reducing it so as to be valid and enforceable to the maximum extent compatible withthe applicable laws of such jurisdiction, such amendment only to apply with respect to theoperation of such provision in the applicable jurisdiction in which the adjudication is made.
     17. **Section Headings**. The section headings in this Agreement are for convenienceonly; they form no part of this Agreement and shall not affect its interpretation.
     18. **Number of Days**. In computing the number of days for purposes of this Agreement,all days shall be counted, including Saturdays, Sundays and legal holidays; provided that, if thefinal day of any time period falls on a Saturday, Sunday or day which is a legal holiday inDelaware or Maryland, then such final day shall be deemed to be the next day which is not aSaturday, Sunday or legal holiday.
     19. **Specific Enforcement** The Employee acknowledges that the restrictions contained inSections 5, 6, and 7 hereof are reasonable and necessary to protect the legitimate interests of theCompany and its affiliates and that the Company would not have entered into this Agreement in theabsence of such restrictions. The Employee also acknowledges that any breach by him of Sections 5,6, or 7 hereof will cause continuing and irreparable injury to the Company for which monetarydamages would not be an adequate remedy. The Employee shall not, in any action or proceeding toenforce any of the provisions of this Agreement, assert the claim or defense that an adequateremedy at law exists. In the event of such breach by the Employee, the Company shall have theright to enforce the provisions of Sections 5, 6, and 7 of this Agreement by seeking injunctive orother relief in any court, and this Agreement shall not in any way limit remedies of law or inequity otherwise available to the Company.
     20. **Consent to Suit**. Subject to the provisions of Section 21 hereof, any legalproceeding arising out of or relating to this Agreement shall be instituted in the Court ofChancery of New Castle County, or if such court does not have jurisdiction or will not acceptjurisdiction, in any state or federal court of general jurisdiction in the State of Delaware, andeach of the Company and the Employee hereby consents to the personal and exclusive jurisdiction ofsuch court and hereby waives any objection that either party may have to the laying of venue of anysuch proceeding and any claim or defense of inconvenient forum. If an action at law or in equityis necessary to enforce or interpret the terms of this Agreement, the prevailing party shall beentitled to recover, in addition to any other relief, reasonable attorneys’ fees, costs anddisbursements.   Employee Name: Joseph J. Rogus, P.E. Employment Agreement Ver. 01/2003Dated August 4, 2004 Page 11 of 14
 

 

     21. **Arbitration**. Subject to the last sentence of this Section 21, if any disputearises over the terms of this Agreement between the parties to this Agreement, either Employee orCompany may submit the dispute to binding arbitration within thirty (30) days after such disputearises, to be governed by the evidentiary and procedural rules of the American ArbitrationAssociation (Commercial Arbitration). Employee and Company shall mutually select one (1)arbitrator within ten (10) days after a dispute is submitted to arbitration. In the event that theparties do not agree on the identity of the arbitrator within such period, the arbitrator shall beselected by the American Arbitration Association. The arbitrator shall hold a hearing on thedispute in Wilmington, Delaware within thirty (30) days after having been selected and shall issuea written opinion within fifteen (15) days after the hearing. The arbitrator shall also decide onthe allocation of the costs of the arbitration to the respective parties, but Employee and Companyshall each be responsible for paying the fees of their own legal counsel, if legal counsel isobtained. Either Employee or Company, or both parties, may file the decision of the arbitrator asa final, binding and unappealable judgment in a court of appropriate jurisdiction. Notwithstandingthe foregoing provisions of this Section 21 to the contrary, matters in which an equitable remedyor injunctive relief is sought by a party, including but not limited to the remedies referred to inSection 19 hereof, shall not be required to be submitted to arbitration, if the party seeking suchremedy or relief objects thereto, but shall instead be subject to the provisions of Sections 19 and20 hereof.
     22. **Counterparts**. This Agreement may be executed in one or more counterparts, each ofwhich shall be deemed an original, and all of which together shall be deemed to be one and the sameinstrument.
     23. **Authorization**. In connection with the execution of this Agreement, the Employeeshall be provided with a copy of the resolutions of the Board of Directors of the Companyauthorizing the execution of this Agreement on behalf of the Company.
***[SIGNATURES ON FOLLOWING PAGE]***   Employee Name: Joseph J. Rogus, P.E. Employment Agreement Ver. 01/2003Dated August 4, 2004 Page 12 of 14
 

 

     IN WITNESS WHEREOF, the parties have caused this Executive Employment Agreement to be executedthe day and year first written above.         ADVANCIS PHARMACEUTICAL CORPORATION          By: /s/ Edward M. Rudnic, Ph.D.           Edward M. Rudnic, Ph.D.