Executive Employment Agreement

ADVANCIS PHARMACEUTICAL CORPORATION


EXECUTIVE EMPLOYMENT AGREEMENT


THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") is made this 1st day of September 2003 by and between Darren Buchwald a resident of Ellicott City, Maryland (the "Employee"), and Advancis Pharmaceutical Corporation, a corporation organized and existing under the laws of the State of Delaware (the "Company").


BACKGROUND


The Company is engaged in the business of developing, improving and promoting antibiotic therapies and the delivery and dosage of antibacterials, as well as extending the market and patent life of important anti-infectives and oncology (as may be modified or expanded by the Company during 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 the Company, upon the terms and conditions set forth in this Agreement.


NOW, THEREFORE, in consideration of the mutual covenants and obligations contained herein, and intending 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 Employee hereby accepts employment with the Company, as Vice President, Pharmaceutical Marketing (the "Position") commencing on September 1, 2003 (the "Commencement Date"). Employee is employed by the Company on an at will basis. The Employee shall be entitled to terminate this Agreement at any time upon ninety (90) days prior written notice to the Company. The Company shall be entitled to terminate this Agreement at any time subject to the provisions of Section 8 hereof. (The entire period 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 to the best of his ability and shall devote his full time, attention, skill and efforts to the performance of the duties required by or appropriate for the Position. Subject to the oversight of the President & CEO, the Employee shall (i) have responsibility for the planning, directing and prioritizing of pharmaceutical marketing activities, and (ii) such duties and responsibilities as may be assigned to him from time to time by the Senior Vice President, Business Development & Strategic Marketing, and/or the President & CEO. The Employee shall perform such duties and responsibilities at the Company's facility located in Germantown, Maryland or at such other location as may be mutually agreed upon by the Company and the Employee in accordance with the business needs of the Company. The Employee, as Vice President, shall report to the Senior Vice President, Business Development & Strategic Marketing.
3. OTHER BUSINESS ACTIVITIES. Except with the prior written consent of the Company in its sole discretion, the Employee shall not engage, directly or indirectly, during the Term, in any other business activities or pursuits whatsoever, except activities in connection with charitable or civic activities, personal investments and serving as an executor, trustee or in other similar fiduciary capacity; provided that any such activities do not interfere with the performance of his responsibilities and obligations pursuant to this Agreement.


4. COMPENSATION. The Company shall pay the Employee, and the Employee hereby agrees to accept, as compensation for all services to be rendered to the Company and for the Employee's intellectual property covenants and assignments and covenant not to compete, as provided in Sections 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 of One Hundred Ninety Thousand Dollars ($190,000.00) (as the same may hereafter be adjusted, the "Salary") during the Term of this Agreement. The Salary shall be inclusive of all applicable income, social security and other taxes and charges that are required by law to be withheld by the Company (collectively, "Taxes") and shall be paid and withheld in accordance with the Company's normal payroll practice for its executive employees from time to time in effect. The Salary shall be subject to increase at the option and in the sole discretion of the Company based upon the demonstrated performance of the Employee.


4.2 Bonus. Upon the execution of this Agreement, the Employee shall be eligible to be awarded an annual cash bonus, which bonus shall be determined by the President & CEO and the Board of Directors and shall be in an amount up to Twenty-Five percent (25%) of Salary paid during such applicable period, less Taxes, provided that the Employee shall have achieved all of his performance objectives established for such period. Such bonus shall be determined and paid within ninety (90) days after the conclusion of such year.


4.3 Fringe Benefits. The Employee shall be entitled to participate in the following programs and receive the following benefits (collectively, the "Benefits") in accordance with the following provisions.


(a) The Employee shall be entitled to participate in any retirement, health or dental programs generally made available to executive employees of the Company.


(b) The Employee shall be entitled to participate in all vacation, life and disability insurance and other fringe benefit programs of the Company to the extent and on the same terms and conditions as are accorded to other executive employees of the Company.


4.4 Reimbursement of Expenses. During the Term, the Employee shall be reimbursed for items of travel, food and lodging and miscellaneous expenses reasonably incurred by him on behalf of the Company, provided that such expenses are incurred,


Employee Name: Darren Buchwald Employment Agreement Ver. 01/2003 Dated September 1, 2003 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 Proprietary Information (as hereinafter defined) is a valuable, special and unique asset of the Company. As a result, both during the Term and thereafter, the Employee shall not, without the prior written consent of the Company, for any reason either directly or indirectly divulge to any third-party or use for his own benefit, or for any purpose other than the exclusive benefit of the Company, any confidential, proprietary, business and technical information or trade secrets of the Company or of any subsidiary or affiliate of the Company (the "Proprietary Information") revealed, obtained or developed in the course of his employment with the Company. Proprietary Information shall include any confidential or proprietary information or trade secrets relating to any patents or other intellectual property assigned by the Employee to the Company. Proprietary Information also shall include, 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 and processes; 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, customer lists, customer information and sales and marketing plans, efforts, information and data. In addition, "Proprietary Information" shall include all information and materials received by the Company or Employee from a third party subject to an obligation of confidentiality and/or non-disclosure. Nothing contained herein shall restrict the Employee's ability to make such disclosures during the course of his employment as may be necessary or appropriate to the effective and efficient discharge of the duties required by or appropriate for the Position or as such disclosures may be required by law. Furthermore, nothing contained herein shall restrict the Employee from divulging or using for his own benefit or for any other purpose any Proprietary Information that is readily available to the general public so long as such information did not become available to the general public as a direct or indirect result of the Employee's breach of this Section 5. Failure by the Company to mark any of the Proprietary Information as confidential or proprietary shall not affect its status as Proprietary Information under the terms of this Agreement.


6. PROPERTY.


6.1 Removal and Distribution. All right, title and interest in and to Proprietary Information 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 any documents, records, notebooks, files, correspondence, reports, memoranda or similar materials of or containing Proprietary Information, or other materials or property of any kind belonging to the Company, unless necessary or appropriate in accordance with the duties and responsibilities required by or appropriate for the Position and, in the event that such materials or property are removed, all of the foregoing shall be returned to their proper files or places of safekeeping as promptly as possible after the removal shall serve its specific purpose. The Employee shall not make, retain, remove and/or distribute any copies of any of the foregoing for any reason


Employee Name: Darren Buchwald Employment Agreement Ver. 01/2003 Dated September 1, 2003 Page 3 of 14 whatsoever, except as may be necessary in the discharge of the assigned duties and shall not divulge to any third person the nature of and/or contents of any of the foregoing or of any other oral or written information to which he may have access or with which for any reason he may become familiar, except as disclosure shall be necessary in the performance of the duties; and upon the termination of his employment with the Company, the Employee shall return to the Company all originals and copies of the foregoing then in his possession or under his control, whether prepared by the Employee or by others.


6.2 Developments.


(a) The Employee acknowledges that all right, title and interest in and to any and all writings, documents, inventions, discoveries, ideas, developments, information, computer programs or 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 whether reduced 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, and whether upon the request or suggestion of the Company or otherwise, (collectively, "Intellectual Work Product") shall be the sole and exclusive property of the Company. The Employee shall promptly disclose to the Company all Intellectual Work Product, and the Employee shall have no claim for additional compensation for the Intellectual Work Product, except for any excluded Intellectual Work Product that is wholly unrelated to the pharmaceutical industry, in the broadest sense, 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 or using any other Company resource.


(b) The Employee acknowledges that all the Intellectual Work Product that is copyrightable shall be considered a work made for hire under United States Copyright Law. To the extent that any copyrightable Intellectual Work Product may not be considered a work made for hire under the applicable provisions of the United States Copyright Law, or to the extent that, notwithstanding the foregoing provisions, the Employee may retain an interest in any Intellectual Work Product, the Employee hereby irrevocably assigns and transfers to the Company any and all right, title, or interest that the Employee may have in the Intellectual Work Product under copyright, patent, trade secret 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 hold in its own name all copyri ...