exhibit101.htm


    
      

      

    



    EMPLOYMENT
AGREEMENT

     

    THIS
EMPLOYMENT AGREEMENT dated as of December 11, 2009 (as the same may be
amended, restated, supplemented or otherwise modified from time to time
hereafter, this “Agreement”), is entered into by and between Columbia
Laboratories, Inc., a Delaware corporation having its corporate offices at 354
Eisenhower Parkway, Livingston, New Jersey 07039 (the “Company”), and
Frank C. Condella, Jr. (“Executive”).

     

    WITNESSETH:

     

    WHEREAS,
Executive was elected Interim Chief Executive Officer of the Company on
December 11, 2009, to be effective as of December 15, 2009;
and

     

    WHEREAS,
the Company wishes to employ Executive on the terms and conditions set forth in
this Agreement; and

     

    WHEREAS,
the Company and Executive desire to enter into this Agreement so the rights,
duties, benefits, and obligations of each regarding Executive’s employment for
and by the Company will be fully set forth under the terms and conditions stated
within this Agreement;

     

    NOW
THEREFORE, in consideration of the mutual promises and undertakings hereunder,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereby agree as follows:

     

    1. At-will.  Executive’s
employment is “at will”.  Either the Executive or the Company may
terminate the Executive’s employment with the Company at any time, upon two
weeks’ notice, and for any or no reason.  Nothing in this Agreement or
in any other statement shall be interpreted to be in conflict with or to
eliminate or modify in any way the employment-at-will status of the
Executive.

     

    2. Title;
Duties.

    (a) Executive
shall be the Interim Chief Executive Officer of the
Company.  Executive will perform duties customarily associated with
such position, including, but not limited to, duties relating to the overall
management of the development, testing, registration, manufacturing, licensing,
marketing and selling of pharmaceutical products for the Company and its
affiliates, and such other duties commensurate with the job description as may
be assigned to him from time to time by the Board of Directors of the Company
(the “Board”) or its designee.  Executive shall have an office at the
Company’s headquarters located in Livingston, New Jersey, but he may also
conduct the Company’s business from his offices in
Massachusetts.  Executive will not be required to relocate to the
Livingston, New Jersey area.  Executive will report to the Company’s
Board in accordance with applicable law, the Company’s by-laws, and otherwise as
reasonably necessary to keep the Board apprised of material business
issues.

     

    (b) Except as
provided in the following sentence, Executive agrees to devote his entire
business time and attention to the performance of his duties under this
Agreement.  The Company acknowledges that Executive currently serves
as a director of SkyePharma PLC and will serve as Chairman from 1
January 2010 and also serves as a director of Fulcrum Pharma
plc.  Executive may spend such time as is reasonably necessary to
continue to perform his duties in such capacities.  He shall perform
his duties to the best of his ability and shall use his best efforts to further
the interests of the Company.  Executive shall perform his duties and
will be required to travel as reasonably necessary to perform the services
required of him under this Agreement.  Executive represents and
warrants to the Company that he is able to enter into this Agreement and that
his ability to enter into this Agreement and to fully perform his duties
hereunder are not limited to or restricted by any agreements or understandings
between Executive and any other person.  For the purposes of this
Agreement, the term “person” means any natural person, corporation, partnership,
limited liability partnership, limited liability company, or any other entity of
any nature.  Neither the Company nor Executive is currently aware of
any conflict that might exist as a result of Executive’s involvement with
SkyePharma PLC and Fulcrum Pharma plc.

     

    (c) Executive
will observe the reasonable rules, regulations, policies and/or procedures which
the Company may now or hereafter establish governing the conduct of its
business, except to the extent that any such rules, regulations, policies and/or
procedures may be inconsistent with the terms of this Agreement, in which case
the terms of this Agreement shall control.  The Company acknowledges
and agrees that notwithstanding any provisions of this Agreement (including, but
not limited to, the provisions of Exhibit A) or any provision of any
statute, rule, regulation, policy and/or procedures, Executive shall not be
under any obligation to and shall not (i) use in the performance of his
duties hereunder; nor (ii) disclose to Company, any confidential or
proprietary information he has acquired or acquires as a result of his position
as a director and/or chairman of Skyepharma PLC or as a director of Fulcrum
Pharma plc, whether or not such information may be of relevance or value to the
Company and Executive shall have no liability of any nature for failing to do
so.

     

    3. Employment
Contract.  The
Company and Executive acknowledge that the terms of his employment are set forth
in this Agreement.  If Executive’s employment terminates for any
reason, Executive shall not be entitled to any payments, benefits, damages,
awards or compensation other than as provided in this Agreement.

     

    4. Compensation.

    (a) Subject
to tax withholdings and other legally required deductions, effective
December 15, 2009 the Company will pay Executive an annual base
compensation of $375,000 per year to be paid in accordance with the Company’s
normal payroll practices during the term of this Agreement (“Base
Salary”).

     

    (b) Upon
execution hereof, the Company is issuing Executive options to purchase 100,000
shares of Common Stock with an exercise price equal to the fair market value of
the Company’s common stock on the date of grant.  The date of grant
shall be the date on which this Employment Agreement is fully executed by the
Company and the Executive.  Subject to the following sentence, such
options shall vest on the first anniversary of this Agreement; provided,
however, that if a significant corporate transaction is consummated prior to the
first anniversary of this Agreement, 50% of such options shall vest on the date
such significant corporate transaction is consummated.  In either
case, such options shall only vest if, at the time they would otherwise vest,
Executive is then performing services for the Company as Executive or as an
employee, director or paid consultant.  The determination of whether a
significant corporate transaction has been consummated shall be made by the
Board in a timely fashion, and upon a written request by the Executive to the
Company’s Chairman of the Board of Directors.

     

    (c) Except as
provided in (a) and (b) above, or unless otherwise determined by the Board,
Executive shall not be entitled to participate in any equity incentive or bonus
plans of the Company.

     

    5. Benefits.

     

    (a) Executive
and his dependents shall be eligible, at the Executive’s option, to participate
in all employee benefits plans, policies and programs that are available to
executive level employees of the Company other than group medical, dental and
vision plans.

     

    (b) Executive
shall be entitled to accrue paid time off (“PTO”) during the term of this
Agreement in accordance with the Company’s standard policy and in an amount
commensurate with other executive level employees of the Company.

     

    (c) Executive
shall be entitled to a non-accountable payment of $2,000 per month in lieu of
his receiving group medical, dental and vision benefits which are available to
other executive employees.  In addition, Executive shall be entitled
to reimbursement for reasonable business expenses for travel and entertainment
incurred on behalf of the Company and other business-related expenses, if
approved by the Chairman of the Board, in each case, upon submission of itemized
receipts for such expenses.

     

    6. Termination
Upon Death.  Executive’s
employment shall terminate immediately upon his death.

     

    7. Compensation
Upon Termination.

     

    (a) If
Executive’s employment is terminated by Death, Executive shall be entitled to
receive:

     

    
      	
              (i)  

            	
              the
      Base Salary through the date of termination;
and

            


    

     

    
      	
              (ii)  

            	
              the
      pro-rated portion of the $2,000 monthly expense allowance through the date
      of termination.

            


    

     

    8. Confidentiality.  Executive
is entering into the Employee Proprietary Information Agreement between the
Company and Executive as attached hereto as Exhibit A and incorporated by
reference as if fully set forth herein.

     

    9. Cooperation.  Executive
agrees to cooperate on a reasonable basis in the truthful and honest prosecution
and/or defense of any claim in which the Company, its affiliates, and/or its
subsidiaries may have an interest (subject to reasonable limitations concerning
time and place), which may include without limitation making himself available
on a mutually agreed, reasonable basis to participate in any proceeding
involving the Company, its affiliates, and/or its subsidiaries, allowing himself
to be interviewed by representatives of the Company, its affiliates, and/or its
subsidiaries without asserting or claiming any privilege against the Company,
its affiliates, and/or its subsidiaries, appearing for depositions and testimony
without requiring a subpoena and without asserting or claiming any privilege
against the Company, its affiliates, and/or its subsidiaries, and producing
and/or providing any documents or names of other persons with relevant
information without asserting or claiming any privilege against the Company, its
affiliates, and/or its subsidiaries; provided that, if such services are
required after termination of this Agreement, the Company, its affiliates,
and/or its subsidiaries shall provide Executive with reasonable compensation for
the time actually expended in such endeavors and shall pay his reasonable
expenses incurred at the prior and specific request of the Company, its
affiliates, and/or its subsidiaries.

     

    10. Remedies.  Executive
acknowledges and agrees that the Company’s remedy at law for a breach or
threatened breach of the provisions of this Agreement would be inadequate and,
in recognition of this fact, in the event of a breach or threatened breach by
Executive of any provision of this Agreement, it is agreed that, in addition to
any available remedy at law, the Company shall be entitled to, without posting
any bond, specific performance, temporary restraining order, temporary or
permanent injunction, or any other equitable relief or remedy which may then be
available; provided, however, nothing herein shall be deemed to relieve the
Company of its burden to prove grounds warranting such relief nor preclude
Executive from contesting such grounds or facts in support
thereof.  Nothing herein contained shall be construed as prohibiting
the Company from pursuing any other remedies available to it for such breach or
threatened breach thereof.

     

    11. Applicable
Laws and Consent to Jurisdiction

     

    .  The
validity, construction, interpretation, and enforceability of this Agreement
shall be determined and governed by the laws of the State of New Jersey without
giving effect to the principles of conflicts of law.  For the purpose
of litigating any dispute that arises under this Agreement, the parties hereby
consent to exclusive jurisdiction of, and agree that such litigation shall be
conducted in, any state or federal court located in the State of New
Jersey.

     

    12. Severability.  The
provisions of this Agreement are severable and if any one or more provisions are
determined to be illegal or otherwise unenforceable, in whole or in part, the
remaining provisions shall nevertheless be binding and
enforceable.  The parties agree that the covenants set forth herein
are reasonable.  Without limiting the foregoing, it is the intent of
the parties that the covenants set forth herein be enforced to the maximum
degree permitted by applicable law.  As such, the parties ask that if
any court of competent jurisdiction were to consider any provisions of this
Agreement to be overly broad based on the circumstances at the time enforcement
is requested, that such court “blue pencil” the provision and enforce the
provision to the full extent that such court deems it to be reasonable in
scope.

     

    13. Miscellaneous;
Waiver.

     

    (a) Executive
further agrees that this Agreement, together with Exhibit A, the Indemnification
Agreement dated as of March 10, 2009 between the Company and Executive, and the
Agreement dated as of July 18, 2009 between the Company and Executive relating
to consulting services (“July 18 Agreement”), as amended by the First Amendment
to the July 18 Agreement dated as of September 9, 2009, each of which is
incorporated by reference as if fully set forth herein, set forth the entire
employment agreement between the Company and Executive, supersede any and all
prior agreements between the Company and Executive, and shall not be amended or
added to except in writing signed by the Company and
Executive.  Executive understands that he may not assign his duties
and obligations under this Agreement to any other party and that the Company
may, at any time and without further action by or the consent of Executive,
assign this Agreement to any of its affiliated companies.

     

    (b) The
Company and Executive agree that the July 18 Agreement, as amended by the First
Amendment, terminated as of the close of business on October 31, 2009 and has
not been extended.   The Company and Executive agree that the
grant of 12,000 shares of restricted Common Stock of the Company, which was
Executive’s compensation under the July 18 Agreement for the month of October
2009, shall vest on December 31, 2009 in accordance with the July 18 Agreement,
as amended by the First Amendment.

     

    14. Counterparts.  This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original and all of which taken together shall constitute one and the
same agreement.

     

    15. Successors
and Assigns.  This
Agreement shall be binding on the successors and heirs of Executive and shall
inure to the benefit of the successors and assigns of the Company.

     

    16. Notices.  Any
notice required or permitted hereunder shall be in writing and shall be
sufficiently given if personally delivered or if sent by registered or certified
mail, postage prepaid, with return receipt requested,
addressed:  (a) in the case of the Company, to Columbia
Laboratories, Inc., 354 Eisenhower Parkway, Livingston, New Jersey 07039,
attn.:  General Counsel, and (b) in the case of Executive, to
Executive’s last known address as reflected in the Company’s records, or to such
other address as Executive shall designate by written notice to the
Company.  Any notice given hereunder shall be deemed given at the time
of receipt thereof by the person to whom such notice is given.

     

    IN
WITNESS WHEREOF, the parties have executed this Agreement as of the dates set
forth below.

     

    
      	
              EXECUTIVE

               

              /S/ Frank C. Condella,
      Jr.                                                              

              Frank
      C. Condella, Jr.

               

              Date:  December
      11, 2009

            	
              COLUMBIA
      LABORATORIES, INC.

               

              By:  /S/ Stephen G.
      Kasnet                                                               

                     Name:
      Stephen G. Kasnet

                     Title:
      Chairman

               

              Date:  December 11,
      2009

               

            


    


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    Exhibit
A

     

    EMPLOYEE
PROPRIETARY INFORMATION AGREEMENT

     

    This
Employee Proprietary Information Agreement (the “Agreement”) is made as of
December 11, 2009, between Frank C. Condella, Jr. (referred to below as “I”,
“My”, “Myself”, or “Me”) and Columbia Laboratories, Inc., having an office at
354 Eisenhower Parkway, Livingston, NJ 07039 (referred to below together with
its subsidiaries and affiliates as the “Company”).

     

    RECITALS

     

    A.           The
Company is engaged in a continuous program of research, development, production,
distribution, and marketing with respect to its present and future business;
and

     

    B.           I
understand that My employment with the Company creates a relationship of
confidence and trust between the Company and Me with respect to any
information:  (a) applicable to the business of the Company, or (b)
applicable to the business of any client or customer of the Company, that may be
made known to Me by the Company, any client or customer of the Company, or
learned by Me during the period of My employment.  I understand that
this information constitutes a very valuable asset of the Company.

     

    NOW,
THEREFORE, in consideration of My employment by the Company and the salary and
other employee benefits I will receive from the Company for My service, I hereby
agree as follows:

     

    1.           Proprietary
Information.  The Company possesses and will come to possess
information that has been created, discovered or developed, or has otherwise
become known to the Company (including without limitation, information created,
discovered, developed or made known by or to Me arising out of My employment by
the Company), and/or in which property rights have been assigned or otherwise
conveyed to the Company, which information has commercial value in the business
in which the Company is engaged.  All of the aforementioned
information is hereinafter called “Proprietary Information.”  Any
information disclosed to Me by the Company, or to which I have access (whether I
or others originated it) during the time I am employed by the Company and solely
by virtue of my employment with the Company, that the Company or I reasonably
consider Proprietary Information or that the Company treats as Proprietary
Information, will be presumed to be Proprietary Information.

     

    By way of
illustration, but not limitation, Proprietary Information includes trade
secrets, processes, formulae, data and know-how, improvements, inventions,
techniques, marketing plans, strategies, forecasts, customer lists, and finance
and business systems, except that Proprietary Information does not include any
inventions or patents that I created, discovered, owned or developed either
(a) prior to my employment with the Company or after my Company employment
ends, or (b) independently from my employment with the Company, regardless
of when I create, discover, own or develop the invention or patent.

     

    (a)           Company as Sole
Owner.  I agree and acknowledge that all Proprietary
Information shall be the sole property of the Company and its assigns, and the
Company and its assigns shall be the sole owner of all patents and trade secrets
and any other rights in connection therewith.

     

    (b)           Assignment of Rights;
Obligation of Confidentiality.  I hereby assign to the Company
any rights I may have or acquire in all Proprietary Information.  At
all times during My employment by the Company and at all times after termination
of such employment, I will keep in confidence and trust all Proprietary
Information and, except as I may be authorized to make disclosure in the
ordinary course of performing My duties as an employee of the Company, I will
not disclose, sell, use, lecture upon or publish any Proprietary Information or
anything relating to it without the prior written consent of the
Company.

     

    2.           No
Competition.  I agree that during the period of My employment
by the Company I will not, without the Company’s prior written consent, engage
in any employment or other activity for any person, company or entity engaged in
any business that is competitive with the Company’s business other than such
services I might perform; provided that My service as a director of SkyePharma
PLC and as a director of Fulcrum Pharma plc shall not be deemed to violate this
Section 2.

     

    3.           Other Proprietary
Rights.  All documents, data, records, apparatus, equipment,
chemicals, molecules, organisms, and other physical property, whether or not
pertaining to Proprietary Information, furnished to Me by the Company or
produced by Me or others in connection with My employment shall be and remain
the sole property of the Company and shall be returned promptly to the Company
as and when requested by the Company.  Should the Company not so
request, I shall return and deliver all such property upon termination of My
employment by Me or the Company for any reason and I will not take with Me any
such property or any reproduction of such property upon such
termination.

     

    4.           No Breach of
Confidentiality.  I represent that My performance of all terms
of this Agreement and that My employment by the Company does not and will not
breach any obligation of confidentiality that I have to others, which existed
prior to My employment by the Company.  I have not brought or used,
and will not bring with Me to the Company or use any equipment, supplies,
facility or trade secret information of any former employer or any other person,
which information is not generally available to the public, unless I have
obtained written authorization for their possession and use, and promptly
provided such written authorization to the Company.  I have not
entered into, and I agree I will not enter into, any agreement either written or
oral in conflict with this Agreement.

     

    5.           Injunctive
Relief.  I acknowledge and agree that the Company’s remedy at
law for a breach or threatened breach of any of the provisions of this Agreement
would be inadequate and, in recognition of that fact, in the event of any such
breach or threatened breach, I agree that, in addition to its remedy at law, the
Company shall be entitled to equitable relief in the form of specific
performance, temporary restraining order, temporary or permanent injunction or
any other equitable remedy that may then be available.  Nothing herein
contained shall be construed as prohibiting the Company from pursuing any other
remedies available to it for such breach or threatened breach.

     

    6.           Not
Debarred.  I warrant and represent that I have never been, and
am not currently an individual who has been, debarred by the United States Food
and Drug Administration (“FDA”) pursuant to 21 U.S.C. §336a (a) or (b)
(“Debarred Individual”) from providing services in any capacity to a person that
has an approved or pending drug product application.  I further
warrant and represent that I have no
knowledge of any FDA investigations of, or debarment proceedings against, Me or
any person or entity with which I am, or have been, associated, and I will
immediately notify the Company if I become aware of any such investigations or
proceedings during the term of My employment with the Company.

     

    7.           Miscellaneous
Provisions.

     

    (a)           Employment.  Nothing
in this Agreement shall alter My at will employee status or be construed to
create a specific term of employment or a promise of continued
employment.  Either I or the Company may terminate the employment
relationship for any reason at any time, with or without notice.

     

    (b)           Enforceability.  If
one or more of the provisions contained in this Agreement shall, for any reason,
be held to be excessively broad as to scope, activity, subject or otherwise, so
as to be unenforceable at law, such provision or provisions shall be construed
by the appropriate judicial body by limiting or reducing it or them, so as to be
enforceable to the maximum extent compatible with then applicable
law.  If any provision of this Agreement shall be declared invalid,
illegal or unenforceable, such provision shall be severed and all remaining
provisions shall continue in full force and effect.

     

    (c)           Assignment.  This
Agreement is not assignable by Me without the written consent of the Company,
which consent may be withheld for any reason or no reason.  In light
of the very personal and critical nature of this Agreement, I recognize that it
is unlikely such consent would ever be granted.

     

    (d)           Entire
Agreement.  This Agreement contains the entire agreement
between Me and the Company with respect to the subject matter of this Agreement
and supersedes all prior or contemporaneous oral or written agreements,
statements, representations, or understandings between Me and the Company, or
any employee of the Company.  This Agreement may be amended only by a
written instrument signed by Me and the Company.

     

    (e)           Effective
Date.  This Agreement shall be effective as of the first day of
My employment by the Company, as affirmed or reaffirmed by my signature
below.

     

    (f)           Binding
Effect.  This Agreement shall be binding upon Me, My heirs,
executors, assigns and administrators and shall inure to the benefit of the
Company, its successors and assigns.

     

    (g)           Governing
Law.  This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey without regard to its rules
on conflicts of law.

     

    COLUMBIA
LABORATORIES,
INC.                                                                                     EMPLOYEE

    


    By:__/S/ Stephen G.
Kasnet                                                                                               
S/ Frank C. Condella,
Jr.

    Name:
Stephen G.
Kasnet                                                                                                    Frank
C. Condella, Jr.

    Title:
Chairman