[IGX LOGO]
EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") is entered into
effective as of December 1, 1996 by and between IgX Limited, a company
incorporated under the laws of Ireland and having its registered office at 00-00
Xxxxx Xxxxxxx'x Xxxxx, Xxxxxx 0 (the "Company"), and Xxxxxx X. Xxxxxxx an
individual residing at 0000 Xxx xxx Xxxxx, Xxxxxxxxxx, Xxxxxxx (the
"Executive").
WHEREAS, The Company is about to commence a phase 3 clinical trial for
IGX-CPL3 in England and elsewhere in Europe (the "Proposed Clinical");
WHEREAS, the Company wishes to employ the Executive as its Vice
President of Operations and Managing Director, Ireland, for a period of
approximately one (1) year (the "Pilot Plant Period") on the terms and
conditions set forth herein;
WHEREAS, if the Company's Proposed Clinical is successful and a
Marketing Authorization Application (MAA) is approved by the Irish Medicines
Board (IMB), the Company wishes to retain the services of the Executive for an
additional period of approximately three (3) years beyond completion of Proposed
Clinical (the "Manufacturing Plant Period") on terms and conditions to be agreed
upon by the Company and the Executive;
WHEREAS, the Executive desires to assume such responsibilities on said
terms and conditions; and
WHEREAS, the Company wishes to secure the Executive's agreement not to
compete with the Company during the term of the Agreement and for a period of
three (3) years after the termination of the Agreement.
NOW, THEREFORE, in consideration of the mutual premises, the respective
covenants and commitments of the parties set forth herein and for other good and
valuable consideration, the receipt and legal sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound, hereby agree as
follows:
IgX Limited
Executive Employment Agreement
1. Employment. The Company hereby agrees to employ the Executive as its
Vice President of Operations and Managing Director, Ireland, as set forth in
Section 2 below, and the Executive agrees to accept such employment upon the
terms and conditions set forth herein. The Executive shall have such duties and
responsibilities as mutually agreed upon by the Executive and the Board of
Directors of the Company. The Executive agrees to devote substantially all of
his productive time, energy and abilities to the proper and efficient discharge
of his duties. Initially, the Executive shall report to the Chairman of the
Board of the Company, subject to change at the discretion of the Board of
Directors.
2. Term. Subject to the provisions for termination in Section 5 below,
the Executive shall be employed by the Company as Vice President of Operations
of the Company for a period of approximately one (1) year, beginning on December
1, 1996, and continuing until December 31, 1997 (the "Initial Term"). Upon
completion of the Proposed Clinical and if the Proposed Clinical is successful,
the Company shall file an amended Marketing Authorization Application (MAA) with
the Irish Medicines Board (IMB), and if such MAA is approved, the Company and
the Executive shall enter into an amendment to this Agreement to provide for a
term of employment for the Manufacturing Plant Period (approximately three (3)
years), the terms and conditions of such extended term to be agreed upon by the
parties hereto.
3. Compensation. For all services the Executive may render to the
Company and its subsidiaries during the Initial Term and in the event this
Agreement is extended by the Company for the duration of the Manufacturing Plant
Period as provided in Section 2 above (the "Additional Term"), the Executive
will be compensated as follows:
3.1 Annual Salary. The Executive shall receive an annual base salary
of One Hundred and Ten Thousand Dollars ($110,000), payable every two (2) weeks
in equal installments (less all required and authorized withholdings and
deductions). The annual salary shall be subject to annual review by a
Compensation Committee of the Board of Directors at the same time as the
salaries of other employees of the Company are reviewed, and may be increased
(but not decreased) taking into consideration the amount, extent and performance
of the Executive's services, the financial performance and condition of the
Company and such other factors deemed relevant by such Committee.
3.2 Expenses. The Executive shall be entitled to reimbursement for
all reasonable actual out-of-pocket expenses necessarily incurred by the
Executive in the performance of his duties set forth herein in accordance with
the established
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policies of the Company for employees of the Company, provided the Executive
itemizes such expenses and provides receipts evidencing such expenses to Company
in accordance with the Company's then existing travel policy. The Executive
shall be entitled to an automobile allowance of $750 per month. The Company
shall pay all reasonable operating, maintenance and insurance expenses for such
automobile.
3.3 Relocation and Living Expenses. The Company shall pay all of the
Executive's reasonable expenses and incidental costs associated with his
relocation from Scottsdale, Arizona to Ireland up to a maximum of $10,000. The
Company shall pay all of the Executive's reasonable expenses and incidental
costs associated with his relocation from Ireland to Scottsdale, Arizona up to a
maximum of $10,000 The Executive hereby acknowledges and agrees that all
relocation expenses must be approved by the Executive's immediate supervisor.
The Company shall also pay for the Executive's reasonable living expenses in
Ireland up to a maximum of $1,000 per month.
3.4 Airplane Fares. The Company shall furnish the Executive with:
(i) round trip airplane tickets for two (2) people from Ireland to San Diego,
California once a year; (ii) round trip airplane tickets for two (2) people from
Ireland to an appropriate location for bereavement leave (in the event of the
death of a son, daughter, mother or father); and (iii) round trip airplane
tickets for two (2) people from Ireland to an appropriate location for emergency
leave (if such leave is approved by the Executive's immediate supervisor).
3.5 Other Benefits. In addition to the other provisions set forth
herein, the Executive and his spouse, Xxxxxxxxx, shall receive the same standard
employment benefits as other executive employees of the Company shall receive
from time to time, including, but not limited to, health and dental insurance,
life insurance, financial counsel (income shelter), all foreign and domestic tax
administration and preparation, annual vacation, sick leave, pension and profit
sharing plans, bonus plans and medical expense reimbursement plans, if any, as
may be approved by the Board of Directors from time to time. The Executive shall
be provided office space and staff assistance appropriate for the Executive's
position and adequate for the performance of his duties.
4. Confidential Information: Non-Compete
4.1 Confidential Information. The Executive acknowledges that his
employment has and will bring him into close contact with many confidential
affairs of the Company, including matters of a technical nature, such as "know
how," formulae, secret processes or machines, inventories and research projects
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Executive Employment Agreement
and matters of a business nature, such as information about costs, profits,
markets, sales, employees, lists of customers, other information of a similar
nature to the extent not available to the public, plans for future developments
and any other information that constitutes a "trade secret" of the Company under
the Uniform Trade Secrets Act (collectively, the "Confidential Information").
The Executive agrees to keep secret and not to use for purposes unrelated to the
Company all Confidential Information of the Company, including information
received in confidence by the Company from others, and agrees not to disclose
such Confidential Information to anyone outside the Company except as required
in the course of his duties, either during or after his employment with the
Company. The Executive further agrees to deliver promptly to the Company on
termination of his employment with the Company, or at any time it may so
request, all memoranda, notes, records, manuals, drawings, blueprints and any
other documents of a confidential nature belonging to the Company, including all
copies of such materials, which the Executive may then possess or have under his
control. The Company and the Executive each acknowledges and agrees that the
Confidential Information shall not include knowledge brought to the Company by
the Executive as of the Effective Date. The Executive agrees to be bound by the
terms of that certain Confidentiality and Non-Disclosure Agreement, of April 26,
1994, attached hereto as Exhibit "A" and incorporated herein by this reference
(the "Confidentiality Agreement"). All terms herein shall be read consistently
with the Confidentiality Agreement.
4.2 Non-Compete. The Executive hereby covenants and agrees that the
Executive will not, without the prior written consent of the Company, directly
or indirectly, whether individually or through any entity controlled by the
Executive during the term of this Agreement and for a period of three (3) years
from the termination of this Agreement, directly or indirectly, on his own
behalf or in the service or on behalf of others, whether or not for
compensation, engage in any business activity, or have any interest in any
person, firm, corporation or business, through a subsidiary or parent entity or
other entity (whether as a shareholder, agent, joint venturer, security holder,
trustee, partner, consultant, creditor lending credit or money for the purpose
of establishing or operating any such business, partner or otherwise) which is
competitive with the then existing business of Company being conducted in the
Covered Area, as defined hereinbelow. For the purpose of this Section 4.2,
"Covered Area" shall mean all geographical areas of the United States and
foreign jurisdictions where Company then has offices and/or sells its products
directly or indirectly through distributors and/or other sales agents.
Notwithstanding the foregoing, the Executive may own shares of companies whose
securities are publicly traded, so long as such
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Executive Employment Agreement
securities do not constitute more than one percent (1%) of the outstanding
securities of any such company.
4.3 Non-Solicitation. The Executive further agrees that as long as
the Agreement remains in effect and for a period of three (3) years from its
termination, the Executive will not divert any business of the Company and/or
its affiliates or any customers or suppliers of the Company and/or the Company's
and/or its affiliates' business to any other person, entity or competitor, or
induce or attempt to induce, directly or indirectly, any person to leave his or
her employment with the Company.
4.4 Remedies. The Executive acknowledges and agrees that his
obligations provided herein are necessary and reasonable in order to protect the
Company and its affiliates and their respective business and the Executive
expressly agrees that monetary damages would be inadequate to compensate the
Company and/or its affiliates for any breach by the Executive of his covenants
and agreements set forth herein. Accordingly, the Executive agrees and
acknowledges that any such violation or threatened violation of this Section 4
will cause irreparable injury to the Company and that, in addition to any other
remedies that may be available, in law, in equity or otherwise, the Company and
its affiliates shall be entitled to obtain injunctive relief against the
threatened breach of this Section 4 or the continuation of any such breach by
the Executive without the necessity of proving actual damages.
5. Termination.
5.1 By Company. The Company may, in its discretion and at its
option, terminate the Executive's employment with or without Cause, and without
prejudice to any other right or remedy to which the Company may be entitled at
law or in equity or under this Agreement. The Executive shall be deemed
terminated for "Cause" after a determination by a majority of the Board of
Directors of the Company, acting in good faith, that the Executive has engaged
in conduct not appropriate of an employee. In the event the Company desires to
terminate the Executive's employment without Cause, the Company shall give the
Executive not less than thirty (30) days written notice of its intention to do
so.
5.2 By Executive's Death or Disability. This Agreement shall also be
terminated upon the Executive's death and/or a finding of permanent physical or
mental disability, such disability to be determined by in the sole discretion of
a physician selected by the Company.
5.3 Salary and Benefits. In the event the Proposed Clinical is
terminated by the Company during the Pilot Plant Period, the Executive shall be
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Executive Employment Agreement
entitled to receive a severance payment equal to twelve (12) months of his
annual salary, or One Hundred Ten Thousand Dollars ($110,000), plus all
applicable benefits. In the event the Proposed Clinical is terminated by the
Company during the Manufacturing Plant Period, the Executive shall be entitled
to receive a severance payment equal to one (1) year of his annual salary, or
One Hundred and Ten Thousand Dollars ($110,000), plus all applicable benefits.
In the event the Executive's employment with the Company is terminated for any
other reason prior to the expiration of the Initial Term and/or any Additional
Term, all compensation and other benefits shall cease of the date of such
termination of employment.
6. Share Option. Concurrently with the contract date, the Company shall
grant to the Executive an option, under the Company's 1996 Share Option Scheme
(the "Option Scheme"), to purchase up to 83,696 of the Company's Ordinary Shares
(the "Option") at an exercise price of one cent (US) per share pursuant to the
terms of that certain Share Option Agreement substantially in the form attached
hereto as Exhibit "B" and incorporated herein by this reference. The Option
shall vest over a four (4) year period commencing on the contract date and shall
continue to vest during any applicable severance period referred to in Section
5.3 above.
7. Controversies. Any controversy or claim arising out of or relating
to the Executive's employment and this Agreement, the breach hereof, or the
coverage of this arbitration provision, shall be settled by arbitration in
Delaware which arbitration shall be in accordance with the Commercial
Arbitration Rules of the American Arbitration Association, as such rules shall
be in effect on the date of delivery of demand for arbitration. The arbitration
of such issues, including the determination of the amount of any damages
suffered by any party, shall be to the exclusion of any court of law. The
decision or the arbitrators or a majority of them shall be final and binding
upon the parties and the personal representatives, heirs or devises of the
Executive, if applicable. There shall be three arbitrators, one (1) to be chosen
directly by the Executive, one (1) to be chosen by the Company and one (1) to be
chosen by the two (2) arbitrators so chosen. The Company and the Executive shall
each pay the fees of the arbitrators selected by it or him and of its or his own
attorneys, the expense of witnesses and all other expenses connected with the
presentation of such party's case, except that the arbitrators may impose all
such fees, costs and expenses otherwise payable by the prevailing party on the
losing xxxxx if it determines that the losing party's position was taken without
good faith or solely for the purpose of delay. The costs of the Arbitration
including the cost of the record of transcripts thereof, if any, administrative
fees,
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Executive Employment Agreement
and all other fees and costs, including those of the third arbitrator, shall be
borne one-half by the Executive and one-half by the Company, except that the
arbitrators may impose all such fees, costs and expenses otherwise payable by
the prevailing party on the losing party if it determines that the losing
party's position was taken without good faith or solely for the purpose of
delay.
8. General Provisions.
8.1 Modification. No Waiver. No modification, amendment or discharge
of this Agreement shall be valid unless the same is in writing and signed by all
parties hereto. Failure of any party at any time to enforce any provisions of
this Agreement or any rights or to exercise any election shall in no way be
considered to be a waiver of such provisions, rights or elections and shall in
any way affect the validity of this Agreement. The exercise by any party of any
of its rights or any of its elections under this Agreement shall not preclude or
prejudice such party from exercising the same or any other right it may have
under this Agreement irrespective of any previous action taken.
8.2 Notice. Any notice to be given to the Company under the terms of
this Agreement shall be addressed to the Company, to the attention of the Board
of Directors, at the address of its executive offices set forth above. Any
notice to be given to the Executive shall be addressed to him at the residence
address set forth above, or such other address as the Executive may hereafter
designate in writing to the Company. Any notice shall be deemed duly given when
personally delivered or five (5) days after deposit in registered or certified
mail, postage prepaid, as provided herein.
8.3 Severability. Should any one or more of the provisions of this
Agreement or of any agreement entered into pursuant to this Agreement be
determined to be illegal or unenforceable, then such illegal or unenforceable
provision shall be modified by the proper court or arbitrator to the extent
necessary and possible to make such provision enforceable, and such modified
provision and all other provisions of this Agreement and of each other agreement
entered into pursuant to this Agreement shall be given effect separately from
the provision or portion thereof determined to be illegal or unenforceable and
shall not be affected thereby.
8.4 Successors and Assigns. Neither the Executive nor the Company
may assign this Agreement without the prior written consent of the other;
provided, however, the Company may assign its rights under Section 4 hereof
without the written consent of the Executive, which shall remain enforceable so
long as the Company or its assignee complies with the other
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Executive Employment Agreement
material terms of this Agreement. The rights and obligations of the Company
under this Agreement shall inure to the benefit of and be binding upon the
successors and permitted assigns of the Company, and the Executive's rights
under this Agreement shall inure to the benefit of and be binding upon his heirs
and executors.
8.5 Entire Agreement. This Agreement supersedes all prior agreements
and understandings between the parties, oral or written. No modification,
termination or attempted waiver shall be valid unless in writing, signed by the
party against whom such modification, termination or waiver is sought to be
enforced.
8.6 Choice of Law. This Agreement shall be governed by and
interpreted and constructed in accordance with the internal laws of Ireland,
without regard to principles of conflict of laws, and shall be binding upon the
parties hereto in the United States and worldwide.
8.7 Counterparts: Facsimile. This Agreement may be executed in one
or more counterparts, each of which shall for all purposes be deemed to be an
original, and all of which taken together shall constitute one and the same
instrument. This Agreement may be executed by facsimile with original signatures
to follow.
IN WITNESS WHEREOF, the parties hereto have executed this Executive
Employment Agreement as of the date first written above.
COMPANY: IGX LIMITED, a company
incorporated under the laws of Ireland
By:
-------------------------------------
Xxxxxx X. Xxxxx
Chairman of the Board of Directors
EXECUTIVE:
----------------------------------------
Xxxxxx X. Xxxxxxx
ZHGMPF Draft: September 29, 1998
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
IgX CORP.
IgX Corp., a corporation organized and existing under and by virtue of
the Delaware General Corporation Law (the "Corporation"), does hereby certify
that:
FIRST: The Board of Directors of the Corporation adopted the following
resolutions by unanimous written consent:
RESOLVED, that Article IV, paragraph A, of the Amended and Restated
Certificate of Incorporation be and hereby is amended to read in its entirety as
follows:
ARTICLE IV
A. Classes of Stock. This Corporation is authorized to issue
three classes of stock to be designated, respectively, "Common Stock,"
"Series A Preferred Stock," "Series B Preferred Stock" and a class of
undesignated "Preferred Stock" to be issued from time to time in one or
more series. The total number of shares which this Corporation is
authorized to issue is __________________, of which _______________
shares shall be Common Stock, $0.001 par value per share, 3,700,001
shares shall be Series A Preferred Stock, $0.001 par value per share;
1,874,999 shares shall be Series B Preferred Stock, $0.001 par value
per share, and ____________ shares shall be Preferred Stock, $0.001 par
value per share.
RESOLVED, FURTHER, that Article IV of the Amended and Restated
Certificate of Incorporation be amended to add a new paragraph D, to
read in its entirety as follows:
ZHGMPF Draft: September 29, 1998
D. Preferred Stock. The Preferred Stock may be issued from
time to time in one or more series. The Board of Directors of the
Corporation is hereby expressly authorized to provide, by resolution or
resolutions duly adopted by it prior to issuance, for the creation of
each such series and to fix the designation and the powers,
preferences, rights, qualifications, limitations and restrictions
relating to the shares of each such series. The authority of the Board
of Directors with respect to each series of Preferred Stock shall
include, but not be limited to, determining the following:
(1) the designation of such series, the number of shares to
constitute such series and the stated value if different from the par
value thereof;
(2) whether the shares of such series shall have voting
rights, in addition to any voting rights provided by law, and, if so,
the terms of such voting rights, which may be general or limited;
(3) the dividends, if any, payable on such series, whether
any such dividends shall be cumulative, and, if so, from what date, the
conditions and dates upon which such dividends shall be payable, and
the preference or relation which such dividends shall bear to the
dividends payable on any shares of stock of any other class or any
other series of Preferred Stock;
(4) whether the shares of such series shall be subject to
redemption by the Corporation, and, if so, the times, prices and other
conditions of such redemption;
(5) the amount or amounts payable upon shares of such
series upon, and the rights of the holders of such series in, the
voluntary or involuntary liquidation, dissolution or winding up, or
upon any distribution of the assets, of the Corporation;
(6) whether the shares of such series shall be subject to
the operation of a retirement or sinking fund and, if so, the extent to
and manner in which any such retirement or sinking fund shall be
applied to the purchase or redemption of the shares of such series for
retirement or other corporate purposes and the terms and provisions
relating to the operation thereof;
(7) whether the shares of such series shall be convertible
into, or exchangeable for, shares of stock of any other class or any
other series of Preferred Stock or any other securities and, if so, the
price or process or the rate or rates of
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ZHGMPF Draft: September 29, 1998
conversion or exchange and the method, if any, of adjusting the same,
and any other terms and conditions of conversion or exchange;
(8) the limitations and restrictions, if any, to be
effective while any shares of such series are outstanding upon the
payment of dividends or the making of other distributions on, and upon
the purchase, redemption or other acquisition by the Corporation of,
the Common Stock or shares of stock of any other class or any other
series of Preferred Stock;
(9) the conditions or restrictions, if any, upon the
creation of indebtedness of the Corporation or upon the issuance of any
additional stock, including additional shares of such series or of any
other series of Preferred Stock or of any other class; and
(10) any other powers, preferences and relative,
participating, optional and other special rights, and any
qualifications, limitations and restrictions thereof.
The powers, preferences and relative, participating, option and other
special rights of each series of Preferred Stock, and the
qualifications, limitations or restrictions thereof, if any, may differ
from those of any and all other series at any time outstanding. All
shares of any one series of Preferred Stock shall be identical in all
respects with all other shares of such series, except that shares of
any one series issued at different times may differ as to the dates
from which dividends thereof shall be cumulative.
RESOLVED, FURTHER, that Article VII of the Amended and Restated
Certificate of Incorporation be and hereby is amended to read in its entirety as
follows:
ARTICLE VII
A. The number of directors of the Corporation shall be fixed
from time to time by a Bylaw or amendment thereof duly adopted by the
Board of Directors.
B. Commencing with the annual meeting of stockholders in 1998,
the directors shall be classified, with respect to the time for which
they severally hold office, into three (3) classes, as nearly equal in
number as possible as the then total number of directors constituting
the entire board permits, pursuant to the provisions of the
Corporation's Certificate of Incorporation and its Bylaws. The
respective classes of directors shall be elected to terms of one, two
and three years. At each subsequent annual meeting of stockholders, the
successors to the class of directors
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ZHGMPF Draft: September 29, 1998
whose term expires at that meeting shall be elected, by a plurality of
the votes cast, to hold office for a term expiring at the annual
meeting of the stockholders held in the third year following the year
of their election and until their successors have been duly elected and
qualified.
C. Except as otherwise fixed by resolution of the Board of
Directors pursuant to this Certificate of Incorporation relating to the
authorization of the Board of Directors to provide by resolution for
the issuance of preferred stock and determine the rights of the holders
of such preferred stock to elect directors, newly created directorships
resulting from any increase in the authorized number of directors or
any vacancies in the Board of Directors resulting from death,
resignation, retirement, disqualification, removal from office or other
cause shall be filled solely by the Board of Directors, acting by not
less than a majority of the directors then in office or by a sole
remaining director in office. Any director so chosen shall hold office
until the next election of the class for which such director shall have
been chosen and until his successor shall be elected and qualified. No
decrease in the number of directors shall shorten the term of any
incumbent director.
D. At any annual meeting of stockholders of the Corporation,
or at any special meeting of stockholders of the Corporation, the
notice of which shall have stated that the removal of a director or
directors is among the purposes of the meeting, the holders of capital
stock entitled to vote thereon, present in person or by proxy, by vote
of a majority of the outstanding shares thereof, voting together as a
single class, may remove such director or directors only for cause. For
purposes of this Certificate of Incorporation, "cause" means an act or
acts by an individual involving the commission of a felony, willful
misconduct, fraud, embezzlement, dishonesty, breach of fiduciary duty
or violation or breach of a written employment or consulting agreement
of the Corporation's policy as described in a Corporation manual or
handbook, any of which acts cause the Corporation material damage.
E. Notwithstanding any other provision of this Certificate of
Incorporation or the Bylaws of the Corporation, and notwithstanding the
fact that a lesser percentage may be specified by law, this Certificate
of Incorporation or the Bylaws of the Corporation, the affirmative vote
of the holders of at least two-thirds (2/3) of the combined voting
power of the then outstanding shares of stock entitled to vote
generally in the election of directors, voting together as a single
class, shall be required to alter, amend, or adopt any provision
inconsistent with or repeal this Article VII.
RESOLVED, FURTHER, that the first paragraph of Article IX be designated
as section "A. Meetings of Stockholders" and that a new section "B" which reads
in its entirety as follows be added:
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ZHGMPF Draft: September 29, 1998
B. No Stockholder Action Without a Meeting. No action required
by the Delaware General Corporation Law to be taken at an annual or
special meting of stockholders, nor any action which may be taken at
any annual or special meeting of stockholders may be taken by consent
of stockholders without a meeting.
SECOND: Such amendment was consented to and authorized by the holders
of a majority of the issued and outstanding capital stock of the Corporation
entitled to vote on such amendment by unanimous written consent in accordance
with the applicable provisions of Section 228 of the Delaware General
Corporation Law.
THIRD: Such amendment was duly adopted in accordance with the
applicable provisions of Section 242 of the Delaware General Corporation Law.
[Remainder of Page Intentionally Left Blank]
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ZHGMPF Draft: September 29, 1998
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be signed by Xxxxxx X. Xxxxx, its Chairman, and attested by ______,
its Secretary, this ____ day of __________, 1998.
IgX CORP.,
a Delaware corporation
By
----------------------------------------
Xxxxxx X. Xxxxx, Chairman
ATTEST:
By:
---------------------------------
, Secretary
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