ex101.htm


    EMPLOYMENT
      AGREEMENT

     

    EMPLOYMENT
      AGREEMENT (this “Agreement”), effective as of September 1, 2007 (“Effective
      Date”), between Urigen Pharmaceuticals, Inc., a Delaware corporation (the
“Company”), and Dennis Giesing (the “Employee”).

     

    WHEREAS,
      the Board of Directors of the Company (the “Board”) has determined that it is in
      the best interests of the Company and its shareholders to employ the Employee
      in
      the position set forth below, and the Employee desires to serve in that
      capacity.

     

    NOW,
      THEREFORE, in consideration of the foregoing premises, the Company and Employee
      hereby agree as follows:

     

    1.  Employment
      Period. The Company shall employ the Employee, and the Employee shall
      serve the Company, on the terms and conditions set forth in this Agreement,
      for
      the period commencing on the date hereof and four years after such date (the
      “Initial Term” and, together with any subsequent term of Employment, the
“Employment Period”); provided that the term of employment hereunder will
      automatically be renewed for successive one-year terms (each such term a
“Renewal Term”) unless either party shall, at least 30 days before such date,
      provide written notice to the other party that the Employment Period will not
      be
      extended.

     

    2.  Position
      and Duties.

     

    (a)  The
      Employee shall serve as Chief Scientific Officer of the Company, reporting
      to
      the Chief Executive Officer, with such duties and responsibilities as are
      customarily assigned to such position, and such other duties and
      responsibilities not inconsistent therewith as may be assigned to him from
      time
      to time by the Board.

     

    (b)  During
      the Employment Period, and excluding any periods of vacation and sick leave
      to
      which the Employee is entitled, the Employee shall devote his full-time efforts
      to the business and affairs of the Company and use his best efforts to carry
      out
      such responsibilities faithfully and efficiently. It shall not be considered
      a
      violation of the foregoing for the Employee to (i) serve on corporate, civic
      or
      charitable boards or committees, (ii) deliver lectures or fulfill speaking
      engagements, (iii) manage personal investments, (iv) engage in other business
      activities, so long as such activities do not materially interfere with the
      performance of his responsibilities as an employee of the Company in accordance
      with this Agreement or violate the provisions of Section 8 of this
      Agreement.

     

    (c)  Employee
      shall not be required to change his domicile to perform his
      duties.  Employee agrees to perform a reasonable amount of travel in
      order to perform his duties hereunder.

     

    3.  Compensation.

     

    (a)  Base
      Salary. During the first contract year of the Initial Term, the
      Employee shall receive an annual base salary (the “Annual Base Salary”) of
      $220,000.  Employee will receive an annual salary review by the Board,
      or an authorized committee thereof, on each anniversary of the Effective Date.
      The Annual Base Salary shall be payable in accordance with the Company’s payroll
      practices as in effect from time to time. The Board or an authorized committee
      thereof may increase the Annual Base Salary above the foregoing amounts at
      its
      discretion.

     

    
      
        
        

      

      
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    (b)  Shares.
      Employee shall be entitled to receive an aggregate of 800,000 shares of common
      stock of the Company, which will be earned in equal monthly installments though
      out the employment period beginning on the first anniversary of this
      Agreement.

     

    (c)  Bonus.
      In addition to the Annual Base Salary, the Employee shall be entitled to
      a  bonus at the end of the first year of employment of $20,000 based
      upon mutually agreed to milestones.  Starting with the second year of
      employment, the employee will be entitled to an annual bonus based upon the
      discretion of the Board of Directors.

     

    (d)  Benefits.
      During the Employment Period, the Employee and the Employee’s direct family
      shall be entitled to participate in all benefit programs of the Company provided
      to executives of similar rank, including, but not limited to, health insurance
      coverage, as well as all welfare benefit plans, practices, policies and programs
      provided by the Company or Parent, including, but not limited to any
      comprehensive dental plan, retirement plans and profit sharing programs the
      Company or Parent may provide to other employees from time to time.

     

    (e)  Expenses.
      During the Employment Period, the Employee shall be entitled to receive prompt
      reimbursement for all reasonable expenses incurred by the Employee in carrying
      out the Employee’s duties under this Agreement, provided that the Employee
      complies with the policies, practices and procedures of the Company for
      submission of expense reports, receipts and similar documentation of such
      expenses.

     

    (f)  Vacation.
      During the Employment Period, the Employee shall be entitled to a paid annual
      vacation of four weeks and other fringe benefits on such terms and conditions
      as
      may be determined by the Board or authorized committee thereof from time to
      time.

     

    4.  Termination
      of Employment.

     

    (a)  Death
      or Disability. The Employee’s employment shall terminate automatically
      upon the Employee’s death during the Employment Period. The Company shall be
      entitled to terminate the Employee’s employment because of the Employee’s
      Disability during the Employment Period. “Disability” means that (i) the
      Employee is unable to perform the job with or without a reasonable accommodation
      pursuant to the state and federal disability discrimination laws and (ii) a
      physician selected by the Company or its insurers, and acceptable to the
      Employee or the Employee’s guardian or legal representative, has determined that
      the Employee’s incapacity is total and permanent. A termination of the
      Employee’s employment by the Company for Disability shall be communicated to the
      Employee by written notice, and shall be effective on the 30th day after receipt
      of such notice by the Employee (the “Disability Effective Date”), unless the
      Employee is able to, and does, return to full-time performance of the Employee’s
      duties before the Disability Effective Date or the employee establishes that
      he
      is not disabled under this definition of Disability.

     

    (b)  By
      the Company.

     

    (A)  The
      Company may terminate the Employee’s employment during the Employment Period for
      Cause or without Cause. “Cause” means:

     

    (i)  Employee
      having, in the reasonable judgment of the Company, committed an act which if
      prosecuted and resulting in a conviction would constitute a fraud, embezzlement,
      or any felonious offense (specifically excepting simple misdemeanors not
      involving acts of dishonesty and all traffic violations);

     

    
      
        
        

      

      
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    (ii)  the
      Employee’s theft, embezzlement, misappropriation of or intentional and malicious
      infliction of damage to the Company’s property or business
      opportunity;

     

    (iii)  the
      Employee’s repeated abuse of alcohol, drugs or other substances as determined by
      an independent medical physician; or

     

    (iv)  the
      Employee’s engagement in gross dereliction of duties, refusal to perform
      assigned duties consistent with his position, his knowing and willful breach
      of
      any material provision of this Agreement continuing after written notice from
      the Company or repeated violation of the Company’s written policies after
      written notice.

     

    (B)  A
      termination of the Employee’s employment by the Company for Cause shall be
      effectuated by giving the Employee written notice (“Notice of Termination for
      Cause”) of the termination, setting forth the conduct of the Employee that
      constitutes Cause. Termination of employment by the Company for Cause shall
      be
      effective on the date when the Notice of Termination for Cause is given, unless
      the notice sets forth a later date (which date shall in no event be later than
      60 days after the notice is given).  Employee will be immediately
      advised of any allegations of conduct covered by clause (A) above and will
      be
      provided a period of thirty (30) days from the date of the written notice to
      defend himself against such allegations and to take any appropriate remedial
      action. If Employee shows that the allegations are untrue or takes appropriate
      remedial action to address the allegations, the Company will not terminate
      the
      Employee’s employment for Cause.

     

    (C)  A
      termination of the Employee’s employment by the Company without Cause shall be
      effected by giving the Employee written notice of the termination at least
      6
      months (180 days) prior to the termination date or by providing the employee
      with compensation that would have been earned by Employee during the six months
      period, in lieu of such notice and the severance benefits in section 5(a)
      below.

     

    (c)  By
      the
      Employee.

     

    (A)  The
      Employee may terminate employment with or without Good Reason.  “Good
      Reason” means:

     

     

    
      
        
        

      

      
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    (i)  a
      material reduction in the Employee's responsibilities, compensation, or
      title;

     

    (ii)  any
      act
      of the Company requiring that the Employee relocate

     

    Employee's
      living residence outside of the San Francisco Bay Area;

     

    (iii)  the
      assignment to the Employee of any duties inconsistent in any respect with
      paragraph (a) of Section 2 of this Agreement, other than actions that are not
      taken in bad faith and are remedied by the Company within thirty (30) days
      after
      receipt of notice thereof from the Employee;

     

    (iv)  any
      failure by the Company to comply with any provision of Section 3 of this
      Agreement, other than failures that are not taken in bad faith and are remedied
      by the Company within thirty (30) days after receipt of notice thereof from
      the
      Employee;

     

    (v)  the
      occurrence of a Non-Negotiated Change in Control of the Company (as defined
      below); or

     

    (vi)  the
      Company’s material breach of this Agreement.

     

    For
      purposes of this Agreement, “Non-Negotiated Change in Control” means any one or
      more of the following occurrences:

     

    (x)           Any
      individual, corporation (other than the Company, any trustees or other
      beneficiary holding securities under any employee benefit plan of the Company,
      or any Company owned, directly or indirectly, by the stockholders of the Company
      in substantially the same proportions as their ownership of stock of the
      Company), partnership, trust, association, pool, syndicate, or any other entity
      or any group of persons acting in concert becomes the beneficial owner (within
      the meaning of Rule 13d-3 under the Securities Exchange Act of 1934) of
      securities of the Company possessing more than fifty percent (50%) of the voting
      power for the election of directors of the Company;

     

    (y)           There
      shall be consummated any consolidation, merger, or other business combination
      involving the Company or the securities of the Company in which holders of
      voting securities of the Company immediately prior to such consummation own,
      as
      a group, immediately after such consummation, voting securities of the Company
      (or, if the Company does not survive such transaction, voting securities of
      the
      entity surviving such transaction) having less than fifty percent (50%) of
      the
      total voting power in an election of directors of the Company (or such other
      surviving corporation); or

     

    (z)           There
      shall be consummated any sale, lease, exchange, or other transfer (in one
      transaction or a series of related transactions) of all, or substantially all,
      of the assets of the Company (on a consolidated basis) to a party which is
      not
      controlled by or under common control with the Company.

     

    (d)  A
      termination of employment by the Employee for Good Reason shall be effectuated
      by giving the Company written notice (“Notice of Termination for Good Reason”)
      of the termination, setting forth the conduct of the Company that constitutes
      Good Reason. A termination of employment by the Employee for Good Reason shall
      be effective on the fifth business day following the date when the Notice of
      Termination for Good Reason is given, unless the notice sets forth a later
      date
      (which date shall in no event be later than 30 days after the notice is
      given).

     

    
      
        
        

      

      
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    (e)  A
      termination of the Employee’s employment by the Employee without Good Reason
      shall be effected by giving the Company written notice of the termination at
      least sixty (60) days prior to the termination date, where it is reasonable
      for
      the Employee to provide such notice.

     

    (f)  Notwithstanding
      anything in this Agreement to the contrary, in no event will any amount which
      otherwise would be payable under or pursuant to this Agreement be payable to
      Employee to the extent such amount, together with all other amounts payable
      and
      benefits provided to Employee under or pursuant to this Agreement and/or under
      any other plan(s), agreements and/or arrangement(s) arising out of Employee’s
      employment relationship with Company and/or any direct or indirect subsidiary
      of
      Company (including without limitation any such amounts payable by any affiliate
      of Company or any acquirer of any of the stock or assets of Company or any
      affiliate of such acquirer), if paid to Employee, would result in Employee
      receiving an “excess parachute payment” for purposes of Section 280G of the
      Internal  Revenue Code of 1986, as amended.  The
      determination of whether a payment under or pursuant to this Agreement would
      result in Employee  receiving an excess parachute payment (but for the
      provisions of this Section 4) shall be made by counsel for Company reasonably
      selected by Company and acceptable to Employee, after consultation with
      Company’s independent auditor.

     

    (g)  No
      Waiver. The failure to set forth any fact or circumstance in a Notice
      of Termination for Cause or a Notice of Termination for Good Reason shall not
      constitute a waiver of the right to assert, and shall not preclude the party
      giving notice from asserting, such fact or circumstance in an attempt to enforce
      any right under or provision of this Agreement.

     

    (h)  Date
      of Termination. The “Date of Termination” means the date of the
      Employee’s death, the Disability Effective Date, the date on which the
      termination of the Employee’s employment by the Company for Cause or by the
      Employee for Good Reason is effective, or the date on which the Company gives
      the Employee notice of a termination of employment without Cause or the Employee
      gives the Company notice of a termination of employment without Good Reason,
      as
      the case may be.

     

    
      
        
        

      

      
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    5.  Obligations
      of the Company upon Termination.

     

    (a)  Termination
      for Reasons Other Than for Cause, Death or Disability, or Good Reason.
      If, during the Employment Period, the Company terminates the Employee’s
      employment, for any reason other than for Cause, Death or Disability, or the
      Employee terminates his employment for Good Reason, the Company shall (i) pay
      the Employee’s accrued but unpaid portion of the Annual Base Salary (the
“Accrued Obligations”) to the Employee in a lump sum in cash within thirty (30)
      days after the Date of Termination, (ii) continue to pay the Annual Base Salary
      and Bonus for the remainder of the Employment Period or for a period of six
      months, whichever is greater, and (iii) provide the benefits listed under
      Section 3 for the remainder of the Employment Period or for a period of six
      months, whichever is greater; provided, however, if (i) during the six months
      period immediately following a Non-Negotiated Change of Control,
      either  Employer or Employee terminates Employee’s employment for any
      reason or no reason, or (ii) Employee is terminate at any time by Employer
      without Cause or Employee terminates his employment for Good Reason, the Company
      shall pay to the Employee a lump sum in cash within thirty (30) days after
      the
      Date of Termination an amount equal to 200% of the Annual Base Salary or a
      lump
      sum payment of the remaining base salary through the Employment Period,
      whichever is greater.

     

    (b)  Termination
      for Cause or Resignation for other than a Good Reason. If the
      Employee’s employment is terminated by the Company for Cause during the
      Employment Period, or if the Employee terminates his employment during the
      Employment Period other than for Good Reason, the Company shall pay Employee
      the
      Accrued Obligations.

     

    6.  Non-exclusivity
      of Rights. Nothing in this Agreement shall prevent or limit the
      Employee’s continuing or future participation in any plan, program, policy or
      practice provided by the Company or any of its affiliated companies for which
      the Employee may qualify, nor, subject to paragraph (f) of Section 4, shall
      anything in this Agreement limit or otherwise affect such rights as the Employee
      may have under any contract or agreement with the Company or any of its
      affiliated companies. Vested benefits and other amounts that the Employee is
      otherwise entitled to receive under any plan, policy, practice or program of,
      or
      any contract or agreement with, the Company or any of its affiliated companies
      on or after the Date of Termination shall be payable in accordance with such
      plan, policy, practice, program, contract or agreement, as the case may be,
      except as explicitly modified by this Agreement.

     

    7.  Covenant
      of Employee.

     

    (a)  Employee
      recognizes that the services to be performed by him pursuant to this Agreement
      are special, unique and extraordinary.  The parties confirm that it is
      reasonably necessary for the protection of the Company’s goodwill that Employee
      agree, and accordingly, Employee does hereby agree and covenant that Employee
      will not, directly or indirectly, except for the benefit of the
      Company:

     

    (i)  become
      an
      officer, director, more than 2% stockholder, partner, associate, employee,
      owner, proprietor, agent, creditor, independent contractor, co-venturer or
      otherwise, or be interested in or associated with any other corporation, firm
      or
      business engaged in the Territory (as hereinafter defined) in the same or any
      similar business competitive with that of the Company (including the Company’s
      present and future subsidiaries and affiliates) while an employee of the
      Company;

     

    
      
        
        

      

      
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    (ii)  solicit,
      cause or authorize, directly or indirectly, to be solicited for or on behalf
      of
      himself or third parties from parties who were customers of the Company
      (including the Company’s present and future subsidiaries and affiliates) at any
      time while an employee of the Company;

     

    (iii)  solicit,
      or cause or authorize, directly or indirectly, to be solicited for employment
      for or on behalf of himself or third parties, any persons who were at any time
      during the Employment Period hereunder, employees of the Company (including
      the
      Company’s present and future subsidiaries and affiliates) (except for general
      solicitations made to the public at large) for a period of one year from the
      date the Employee’s employment was terminated; or

     

    (iv)  use
      the
      tradenames, trademarks, or trade dress of any of the products of the Company
      (including the Company’s present and future subsidiaries and affiliates); or any
      substantially similar tradename, trademark or trade dress likely to cause,
      or
      having the effect of causing, confusion in the minds of manufacturers,
      customers, suppliers and retail outlets and the public generally.

     

    8.  Confidentiality;
      Return of Property

     

    (a)  The
      Employee acknowledges that during the Employment Period he will receive
      confidential information from the Company, the Parent and subsidiaries of the
      Company (each a “Relevant Entity”).  Accordingly, the Employee agrees
      that during the Employment Period and thereafter, the Employee and his
      affiliates shall not, except in the performance of his obligations to the
      Company hereunder or as may otherwise be approved in advance by the Company,
      directly or indirectly, disclose or use (except for the direct benefit of the
      Company) any confidential information that he may learn or has learned by reason
      of his association with any Relevant Entity. Upon termination of this Agreement,
      the Employee shall promptly return to the Company any and all properties,
      records or papers of any Relevant Entity, that may have been in his possession
      at the time of termination, whether prepared by the Employee or others,
      including, but not limited to, confidential information and keys. For purposes
      of this Agreement, “confidential information” includes all data, analyses,
      reports, interpretations, forecasts, documents and information concerning a
      Relevant Entity and its affairs, including, without limitation with respect
      to
      clients, products, policies, procedures, methodologies, trade secrets and other
      intellectual property, systems, personnel, confidential reports, technical
      information, financial information, business transactions, business plans,
      prospects or opportunities, (i) that the Company reasonably believes are
      confidential or (ii) the disclosure of which could be injurious to a Relevant
      Entity or beneficial to competitors of a Relevant Entity, but shall exclude
      any
      information that (x) the Employee is required to disclose under any applicable
      laws, regulations or directives of any government agency, tribunal or authority
      having jurisdiction in the matter or under subpoena or other process of law,
      (y)
      is or becomes publicly available prior to the Employee’s disclosure or use of
      the information in a manner violative of the second sentence of this Section
      8(a), or (z) is rightfully received by Employee without restriction or
      disclosure from a third party legally entitled to possess and to disclose such
      information without restriction (other than information that he may learn or
      has
      learned by reason of his association with any Relevant Entity). For purposes
      of
      this Agreement, “affiliate” means any entity that, directly or indirectly, is
      controlled by, or under common control with, the Employee.  For
      purposes of this definition, the terms “controlled” and under common control
      with” means the possession, direct or indirect, of the power to direct or cause
      the direction of the management and policies of such person, whether through
      the
      ownership of voting stock, by contract or otherwise.

     

     

    
      
        
        

      

      
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    (b)  Injunction.  Notwithstanding
      any other provisions of this Agreement, Employee acknowledges and agrees that
      in
      the event of a violation or threatened violation of any of the provisions of
      this Section 8, Employer shall have no adequate remedy at law and shall
      therefore be entitled to enforce each such provision by temporary or permanent
      injunctive or mandatory relief obtained in any court of competent jurisdiction
      without the necessity of proving damage or posting any bond or other security,
      and without prejudice to any other remedies that may be available at law or
      in
      equity.

     

    9.  Successors.

     

    (a)  This
      Agreement is personal to the Employee and, without the prior written consent
      of
      the Company, shall not be assignable by the Employee otherwise than by will
      or
      the laws of descent and distribution. This Agreement shall inure to the benefit
      of and be enforceable by the Employee’s legal representatives.

     

    (b)  This
      Agreement shall inure to the benefit of and be binding upon the Company and
      its
      successors and assigns.

     

    10.  Miscellaneous.

     

    (a)  This
      Agreement shall be governed by, and construed in accordance with, the laws
      of
      the State of California, without reference to principles of conflict of laws.
      The captions of this Agreement are not part of the provisions hereof and shall
      have no force or effect. This Agreement may not be amended or modified except
      by
      a written agreement executed by the parties hereto or their respective
      successors and legal representatives.

     

    (b)  All
      notices and other communications under this Agreement shall be in writing and
      shall be given by hand delivery to the other party or by registered or certified
      mail, return receipt  requested, postage prepaid, addressed as
      follows:

     

    If
      to the
      Employee:

    


    Dennis
      Giesing

    4421
      SW
      Gull Point Drive

    Lee’s
      Summitt, MO 64082

    


    


    If
      to the
      Company:

    


    Chief
      Executive Officer

    Urigen
      Pharmaceuticals, Inc.

    875
      Mahler Road, Suite 235

    Burlingame,
      CA 94518

    


    or
      to
      such other address as either party furnishes to the other in writing in
      accordance with this paragraph (b) of Section 10. Notices and communications
      shall be effective when actually received by the addressee.

     

    
      
        
        

      

      
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    (c)  The
      invalidity or unenforceability of any provision of this Agreement shall not
      affect the validity or enforceability of any other provision of this Agreement.
      If any provision of this Agreement shall be held invalid or unenforceable in
      part, the remaining portion of such provision, together with all other
      provisions of this Agreement, shall remain valid and enforceable and continue
      in
      full force and effect to the fullest extent consistent with law.

     

    (d)  Notwithstanding
      any other provision of this Agreement, the Company may withhold from amounts
      payable under this Agreement all federal, state, local and foreign taxes that
      are required to be withheld by applicable laws or regulations.

     

    (e)  The
      failure of the Employee or the Company to insist upon strict compliance with
      any
      provision of, or to assert any right under, this Agreement shall not be deemed
      to be a waiver of such provision or right or of any other provision of or right
      under this Agreement.

     

    (f)  The
      Employee and the Company acknowledge that this Agreement supersedes any other
      agreement between them concerning the subject matter hereof.

     

    (g)  This
      Agreement may be executed in one or more counterparts, each of which shall
      be
      deemed an original, and which together shall constitute one
      instrument.

     

    
      
        
        

      

      
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    IN
      WITNESS WHEREOF, the Employee has hereunto set the Employee’s hand and, pursuant
      to the authorization of its Board, the Company has caused this Agreement to
      be
      executed in its name on its behalf, all as of the day and year first above
      written.

     

    
      	 	URIGEN
              PHARMACEUTICALS,
              INC.	 
	 	 	 	 
	
               

            	
              By:
                

            	/s/ William
              J.
              Garner	 
	 	 	William
              J. Garner	 
	 	 	Chief
              Executive Officer	 
	 	 	 	 
	 	 	EMPLOYEE	 
	 	 	 	 
	 	 	/s/
              Dennis Giesing	 


    

     

     

    


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