AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED
EMPLOYMENT AGREEMENT (this "Agreement") is entered into by and between Santarus, Inc., a Delaware corporation (the "Company"), and Julie A. DeMeules ("Executive"), and shall be effective as of
March 22, 2013.
WHEREAS, the Company and Executive desire to further amend and restate that certain Employment Agreement
between Executive and the Company, dated as of March 31, 2004 (the "Effective Date"), as amended on December 5, 2007 and December 19, 2012 (the "Original Agreement").
NOW, THEREFORE, in consideration of the mutual promises herein contained, the parties agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have the following meanings:
(a) Board. "Board" means the Board of Directors of the Company.
(b) Bonus. "Bonus" means the product of (a) Executives target annual bonus percentage as approved by
the Board under the Companys annual bonus plan (as described in Section 3(b) hereof) that is in effect as of the date of Executives termination of employment (or in the case of Section 4(d)(ii)(B)(2), Executives target
annual bonus percentage as of a Change of Control, if greater) and (b) Executives then-current base salary (as described in Section 3(a) hereof).
(c) Cause. "Cause" means any of the following:
commission of an act of fraud, embezzlement or dishonesty by Executive that has a material adverse impact on the Company or any successor or affiliate thereof;
(ii) a conviction of, or plea of "guilty" or "no contest" to, a felony by Executive;
(iii) any unauthorized use or disclosure by Executive of confidential information or trade secrets of the Company or any successor or affiliate thereof that has a material adverse impact on any such
(iv) Executives gross negligence, insubordination or material violation of any duty of loyalty to the Company
or any other material misconduct on the part of Executive;
(v) Executives ongoing and repeated failure or refusal to
perform or neglect of Executives duties as required by this Agreement, which failure, refusal or neglect continues for fifteen (15) days following Executives receipt of written notice from the Board or the CEO stating with
specificity the nature of such failure, refusal or neglect; or
(vi) Executives breach of any material provision of
provided, however, that prior to the determination that "Cause" under this
Section 1(c) has occurred, the Company shall (w) provide to Executive in writing, in reasonable detail, the reasons for the determination that such "Cause" exists, (x) other than with respect to clause (v) above which
specifies the applicable period of time for Executive to remedy his or her breach, afford Executive a reasonable opportunity to remedy any such breach, (y) provide the Executive an opportunity to be heard prior to the final decision to
terminate the Executives employment hereunder for such "Cause" and (z) make any decision that such "Cause" exists in good faith.
The foregoing definition shall not in any way preclude or restrict the right of the Company or any successor or affiliate thereof to discharge or dismiss Executive for any other acts or omissions, but
such other acts or omissions shall not be deemed, for purposes of this Agreement, to constitute grounds for termination for Cause.
(d) Change of Control. "Change of Control" means and includes each of the following:
(i) the acquisition, directly or indirectly, by any "person" or "group" (as those terms are defined in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the rules thereunder) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors
("voting securities") of the Company that represent fifty percent (50%) or more of the combined voting power of the Companys then outstanding voting securities, other than:
(A) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust)
sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders
of the Company in substantially the same proportions as their ownership of the stock of the Company;
foregoing, the following event shall not constitute an "acquisition" by any person or group for purposes of this Section 1(d): an acquisition of the Companys securities by the Company that causes the Companys voting
securities beneficially owned by a person or group to represent fifty percent (50%) or more of the combined voting power of the Companys then outstanding voting securities; provided, however, that if a person or group shall
become the beneficial owner of fifty percent (50%) or more of the combined voting power of the Companys then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share
acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change of Control; or
(ii) during any period of twelve (12) consecutive months, individuals who, at the beginning of such period, constitute the Board together with any new director(s)
(other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this
Section 1(d)) whose election by the Board or nomination for election by the Companys stockholders was approved by a majority vote of the directors then still in office who either were directors at the beginning of the twelve
(12) month period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization,
or business combination or (y) a sale or other disposition of all or substantially all of the Companys assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction:
(A) which results in the Companys voting securities outstanding immediately before the transaction continuing to
represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or
substantially all of the Companys assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")), directly or indirectly, at least a majority of the combined voting power of the
Successor Entitys outstanding voting securities immediately after the transaction, and
(B) after which
no person or group beneficially owns voting securities representing fifty percent (50%) or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this
clause (B) as beneficially owning fifty percent (50%) or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction.
(e) Code. "Code" means the Internal Revenue Code of 1986, as amended from time to time, and the Treasury
Regulations and other interpretive guidance issued thereunder.
(f) Good Reason. "Good Reason" means
Executives voluntary resignation following any one or more of the following that is effected without Executives written consent:
(i) the relocation of the office of Executive more than fifty (50) miles from Executives principal place of employment as of the Effective Date or to a location outside of San Diego County;
(ii) a change in Executives position that materially reduces his or her duties or responsibilities;
(iii) a reduction in Executives base salary or target bonus as an employee of the Company, other than pursuant to a Company-wide
reduction of base salaries and target bonuses for employees of the Company generally; or
(iv) the Companys breach of any material provision of this Agreement;
provided, that, with respect to any of the foregoing conditions, Executive shall (A) provide to the Company in writing, in reasonable detail,
notice of such condition within 90 days following the initial existence of such condition, (B) afford the Company 30 days to remedy such condition, and (C) resign within two years following the initial existence of such condition.
(g) Permanent Disability. Executives "Permanent Disability" shall be deemed to have occurred if
Executive shall become physically or mentally incapacitated or disabled or otherwise unable fully to discharge his or her duties hereunder for a period of ninety (90) consecutive calendar days or for one hundred twenty (120) calendar days
in any one hundred eighty (180) calendar-day period. The existence of Executives Permanent Disability shall be determined by the Company on the advice of a physician chosen by the Company and the Company reserves the right to have the
Executive examined by a physician chosen by the Company at the Companys expense.
(h) Stock Awards.
"Stock Awards" means all stock options, restricted stock and such other awards granted pursuant to the Companys stock option and equity incentive award plans or agreements and any shares of stock issued upon exercise thereof.
2. Services to Be Rendered.
(a) Duties and Responsibilities. Executive shall serve as the Senior Vice President, Human Resources of the Company. In the performance of such duties, Executive shall report directly to the CEO
and shall be subject to the direction of the CEO and to such limits upon Executives authority as the Board or the CEO may from time to time impose. Executive hereby consents to serve as an officer and/or director of the Company or any