Exhibit 10.28
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") by and between Xxxxx X. Xxxxxx,
Ph.D. ("Xxxxxx") and VaxGen, Inc. ("VaxGen"), is effective September 6, 2001
(the "Effective Date"). In consideration of the mutual promises made herein,
VaxGen and Xxxxxx agree as follows:
1. EMPLOYMENT. VaxGen hereby employs Xxxxxx, and Xxxxxx hereby accepts
employment with VaxGen, upon all of the terms and conditions described in this
Agreement. This Agreement supercedes, replaces and restates any and all prior
agreements between the parties hereto relating to the terms of Xxxxxx'x
employment with VaxGen, including any prior agreements concerning
confidentiality, non-disclosure and inventions.
2. WORK RESPONSIBILITIES. Subject to the terms of this Agreement, Xxxxxx is
hereby employed in the position of Chief Executive Officer, reporting to the
Board of Directors of VaxGen (the "Board"), and shall perform the functions and
responsibilities of that position. VaxGen shall cause Xxxxxx to be appointed to
the Board. Commencing 30 days or less after the Effective Date, Xxxxxx shall
devote the whole of his professional time, attention and energies to the
performance of his work responsibilities. Xxxxxx'x position, job description,
duties and responsibilities may be modified from time to time in the sole
discretion of the Board. This Agreement shall not be interpreted to prohibit
Xxxxxx, from engaging in the professional activities described in Appendix D
hereto.
3. COMPENSATION. As consideration for the services and covenants described in
this Agreement, VaxGen agrees to compensate Xxxxxx during the term of this
Agreement in the following manner:
A. Salary/Wages. VaxGen agrees to pay Xxxxxx a base salary of $325,000
per year. Xxxxxx'x salary, less required and authorized deductions, shall
be paid in equal, periodic installments no less frequently than
semi-monthly in accordance with VaxGen's then current payroll practices.
The Compensation Committee of the Board will consider Xxxxxx'x salary
annually for potential increase.
B. Initial Option Grant and Subsequent Option Grants. On the Effective
Date, Xxxxxx shall be granted an option (the "Initial Option") to purchase
400,000 shares of common stock of VaxGen at a per share exercise price
equal to the fair market value of the common stock of VaxGen on the
Effective Date in accordance with the form of grant used by VaxGen for
grants made to its senior executive officers. The Initial Options shall be
Incentive Stock Options to the maximum extent permitted by VaxGen's stock
option plan. The Initial Option shall vest and become exercisable in
installments at the rate of 100,000 shares on each of the following dates:
(a) 30 days after the Effective Date, (b) the first (1st) anniversary of
the Effective Date, (c) the second (2nd) anniversary of the Effective Date,
and (d) the third (3rd) anniversary of the Effective Date; but only if in
each case Xxxxxx has been continuously employed with VaxGen from the
Effective Date through the applicable vesting date, except as otherwise
provided herein or under the terms of VaxGen's stock option plan. Except as
otherwise provided herein, the Initial Option shall be subject to such
terms and conditions, including provisions regarding post-
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termination exercisability, as generally apply to stock options granted to
other senior executive officers who participate in VaxGen's equity
incentive plans as such terms and conditions are in effect on the Effective
Date. In addition, Xxxxxx will be eligible to receive an annual award of
stock options, which will be issued, if at all, in accordance with the
terms and conditions of this Agreement and VaxGen's stock option plan as in
effect at the time of the award, in an amount to be determined in the sole
discretion of the Board. In the event that Xxxxxx'x employment is
terminated by the Company without Cause pursuant to paragraph 16A(4) below
or by Xxxxxx with Good Reason pursuant to paragraph 16A(5) below or
following a Change in Control pursuant to paragraph 16D, then Xxxxxx shall
have three (3) years from the date of termination to exercise all options
(both the Initial Option and any subsequently issued options) which are
then vested or which vest as a result of this Agreement, provided however
that in no event will Xxxxxx be entitled to exercise such stock options
after the expiration of 10 years from the date of grant of such options.
C. Performance Bonus. Xxxxxx is eligible to receive an annual
performance bonus of up to thirty percent (30%) of his annual base salary
in cash, VaxGen securities or a combination thereof, provided that no more
than 50% of the performance bonus shall be paid in securities. Xxxxxx shall
be eligible to receive a prorated bonus for the 2001 calendar year. Such
performance bonus shall be awarded, if at all, in the sole discretion of
the Board. The Board and Xxxxxx will mutually cooperate to establish annual
performance objectives for Xxxxxx. The Compensation Committee of the Board
will consider Xxxxxx'x bonus annually for potential increase.
D. Benefits. Xxxxxx shall be entitled to employment benefits in
accordance with policies established by or at the direction of the Board
with respect to senior officers of VaxGen, including holidays, leaves of
absence, health insurance, dental insurance, vacation and other benefits,
if any, in accordance with any eligibility requirements, policies,
procedures, or benefit plans adopted by VaxGen from time to time during the
existence of this Agreement. Xxxxxx'x rights, or those of Xxxxxx'x
dependents under any such benefits policies or plans, shall be governed
solely by the terms of such policies or plans. VaxGen's employment
benefits, and policies related thereto, are subject to termination,
modification or limitation at VaxGen's sole discretion.
E. Total Compensation. Xxxxxx agrees that the compensation stated
above constitutes the full and exclusive monetary consideration and
compensation for all services rendered under this Agreement and for all
promises and obligations under this Agreement.
F. Relocation Benefits. In order to minimize the disruption to Xxxxxx,
VaxGen will provide financial assistance to Xxxxxx in connection with his
relocation from Massachusetts to the Bay Area as follows (the "Relocation
Benefits"):
(1) Reimbursement of the cost of shipping household goods and
personal effects, including automobiles, up to a maximum of
$15,000, payable against receipts.
(2) VaxGen will provide Xxxxxx with temporary housing in the Bay Area
for ninety (90) days and will provide reimbursement for the use
of a rental car
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for ninety (90) days, which may, if necessary, be extended with
the Board's approval.
(3) Reimbursement of the cost of storage of household goods following
their arrival in the Bay Area for 90 days, which may, if
necessary, be extended with the Board's approval.
(4) The payment of a one-time relocation assistance payment of
$45,000, which will be included with Xxxxxx'x first paycheck to
assist, among other things, with miscellaneous travel and
relocation expenses, including the cost of one-way air travel for
Xxxxxx and his spouse from Massachusetts to the Bay Area (which
will not be otherwise reimbursed).
(5) Reimbursement of realtor commissions paid on the sale of Xxxxxx'x
primary residence in Massachusetts.
(6) An interest-free loan in the principal amount of $80,000 (the
"Loan") to assist with Xxxxxx'x purchase of a primary residence
in the Bay Area. The proceeds of the Loan shall be made available
to Xxxxxx within three (3) business days of written notification
by Xxxxxx to VaxGen of his intention to sign an agreement to
purchase a residence. The Loan will be forgiven by VaxGen at the
rate of 25% per year for each of the first four full years of
Xxxxxx'x employment by VaxGen. In the event Xxxxxx'x employment
is terminated by VaxGen without Cause (as defined below) or upon
a Change in Control (as defined below) or in the event Xxxxxx
resigns his employment for Good Reason (as defined below), the
Loan shall be forgiven in its entirety. If Xxxxxx'x employment is
terminated for Cause or Xxxxxx resigns without Good Reason, the
balance of the Loan shall become immediately due and payable.
Xxxxxx shall submit one or more expense reports, including copies of bills
and receipts, in order to obtain reimbursement of the moving and relocation
expenses described in items 1, 2, 3 and 5, above, in accordance with
VaxGen's expense reimbursement policies and procedures.
VaxGen and Xxxxxx acknowledge and agree that the Relocation Benefits may be
included in Xxxxxx'x gross income as compensation for services. Xxxxxx
shall be entitled to a "gross-up" payment with respect to those Relocation
Benefits described in this Section 3(F)(1)-(5) in an amount that, after
reduction for all applicable taxes on such "gross-up" payment, is equal to
the amount of applicable taxes imposed on Xxxxxx with respect to such
Relocation Benefits.
G. Business Expenses. VaxGen shall pay Xxxxxx'x reasonable business
expenses, including expenses incurred for travel on VaxGen business, in
accordance with the policies and procedures of VaxGen, as may be adopted or
amended from time to time at VaxGen's sole discretion. If Xxxxxx incurs
business expenses under this Agreement,
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he shall submit monthly to VaxGen a request for reimbursement together with
supporting documentation satisfactory to VaxGen.
4. VAXGEN POLICIES. Xxxxxx agrees to abide by VaxGen's written policies, and
procedures that have been communicated or made available to him, as they may
from time to time be adopted or modified by VaxGen in its sole discretion.
VaxGen's written policies and procedures, including the Employee Handbook, shall
be binding on Xxxxxx unless superseded by, or in conflict with, this Agreement.
Copies of written policies and procedures are available to Xxxxxx in the offices
of VaxGen, and Xxxxxx shall be responsible at all times to review, and make
himself familiar with, these policies and procedures.
5. WARRANTIES. Xxxxxx hereby represents and warrants that he has not unlawfully
misappropriated any confidential, proprietary or trade secret information from
Xxxxxx'x prior employer or employers and, except to the extent such information
has become publicly available, will not knowingly disclose such information to
VaxGen or improperly use any such information on behalf of VaxGen. Xxxxxx
acknowledges that VaxGen has specifically requested that, if Xxxxxx has any such
confidential, proprietary or trade secret knowledge or information, Xxxxxx not
use such information while employed by VaxGen for the benefit of VaxGen. Xxxxxx
further warrants that by entering into this Agreement with VaxGen he is not
violating any of the terms, agreements or covenants of any previous employment
or association.
6. PRIOR INVENTIONS. Xxxxxx acknowledges that, except for the inventions
disclosed on Appendix A, Xxxxxx does not have any right or claim to any
invention, idea, process, formula, discovery, copyright, patent or other such
item or matter. No rights are hereby conveyed by Xxxxxx to VaxGen with respect
to inventions, if any, made by Xxxxxx prior to employment by VaxGen, which
inventions are listed in Schedule A, attached hereto.
7. SUBSEQUENT INVENTION DISCLOSURE. Xxxxxx hereby agrees to promptly disclose to
VaxGen any and all inventions that he develops during the term of his
employment. Xxxxxx will also disclose to the Board all inventions made,
conceived, reduced to practice, or developed by Xxxxxx within six months of the
termination of his employment with VaxGen that resulted from his prior work with
VaxGen. Such disclosures shall be received by VaxGen in confidence and do not
extend the assignment of inventions disclosed beyond that required by law.
8. ASSIGNMENT OF INVENTIONS. Xxxxxx hereby assigns and agrees to assign to
VaxGen or its designee, Xxxxxx'x entire right, title and interest in and to all
inventions, works of authorship, developments, concepts, discoveries, ideas,
trademarks and trade secrets, whether or not patentable or registrable under
copyright or other intellectual property laws ("Inventions") which Xxxxxx may
solely or jointly develop, conceive or reduce to practice, during the period of
employment, except as provided in paragraph 10 below. Xxxxxx agrees that all
such Inventions are the sole property of VaxGen. Xxxxxx further agrees that all
such Inventions, including works of authorship, are "works for hire" for
purposes of VaxGen's rights under copyright laws. Xxxxxx agrees to keep and
maintain adequate and current written records of all Inventions made by him
(solely or jointly with others) during the term of his employment with VaxGen.
The records will be in the form of notes, sketches, drawings, and any other
format that may be specified by VaxGen. The records will be available to and
remain the sole property of VaxGen
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at all times. Xxxxxx understands and agrees that the decision whether or not to
commercialize or market any Invention developed by him solely or jointly with
others is within VaxGen's sole discretion and for VaxGen's sole benefit and that
no royalty will be due to him as a result of VaxGen's efforts to commercialize
or market any such Invention. Xxxxxx further agrees to perform, during and after
employment with VaxGen, all acts deemed necessary or desirable by VaxGen to
permit and assist VaxGen, at VaxGen's expense, in obtaining and enforcing the
full benefits, enjoyment, rights and title, throughout the world, of and to the
Inventions hereby assigned by Xxxxxx to VaxGen as set forth above.
9. PATENT AND COPYRIGHT REGISTRATIONS. Xxxxxx agrees to assist VaxGen, or its
designee, at VaxGen's expense, in every proper way to secure VaxGen's rights in
the Inventions and any copyrights, patents, trademarks, and trade secret rights
or other intellectual property rights in connection with any such Inventions in
any and all countries, including the disclosure to VaxGen of all pertinent
information and data with respect thereto, the execution of all applications,
specifications, oaths, assignments and all other instruments or papers which
VaxGen shall deem necessary in order to apply for and obtain such rights and in
order to assign and convey to VaxGen, its successors, assigns, and nominees the
sole and exclusive rights, title and interest in and to such Inventions, and any
copyrights, patents, trademark and other intellectual property rights relating
thereto. Xxxxxx further agrees that his obligation to execute or cause to be
executed, when it is in his power to do so, any such instrument or papers shall
continue after the termination of this Agreement. If VaxGen is unable, because
of Xxxxxx'x mental or physical incapacity or for any other reason, to secure his
signature to apply for or to pursue any application for any United States or
foreign patents or copyright registrations covering Inventions or original works
of authorship assigned to VaxGen as above, then Xxxxxx hereby irrevocably
designates and appoints VaxGen and its duly authorized officers and agents as
his agent and attorney in fact to act for and in his behalf and stead to execute
and file any such applications and to do all other lawfully permitted acts to
further the prosecution and issuance of letters patent or copyright
registrations thereon with the same legal force and effect as if executed by
Xxxxxx.
10. INVENTIONS NOT ASSIGNED. The parties agree that the assignment of inventions
under this Agreement does not apply to an invention which qualifies fully for
protection under Section 2870 of the California Labor Code, which states that
"Any provision in an employment agreement which provides that an employee shall
assign, or offer to assign, any of his or her rights in an invention to his or
her employer shall not apply to an invention that the employee developed
entirely on his or her own time without using the employer's equipment,
supplies, facilities or trade secret information except for those inventions
that either: (1) relate at the time of conception or reduction to practice of
the invention to the employer's business, or actual or demonstrably anticipated
research or development of the employer; or (2) result from any work performed
by the employee for the employer."
11. CONFIDENTIAL, PROPRIETARY AND TRADE SECRET INFORMATION. During the course of
his employment, Xxxxxx will come into possession of or acquire knowledge of
confidential, proprietary and trade secret information of VaxGen. Xxxxxx hereby
covenants and agrees that he will not, either during his employment or at any
time thereafter, disclose any such confidential, proprietary or trade secret
information to any person, firm, corporation, association, partnership or other
entity (other than those in VaxGen's organization
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qualified and authorized to receive such information) for any purpose or reason
whatsoever. Such confidential and proprietary information shall be deemed to
include, but not be limited to, manuals, discs, tapes, and summaries or
originals of any papers, documents, plans, specifications, client lists,
contracts, licenses or licensing agreements, data bases, or portions thereof,
related to the research and development, products or operations of VaxGen,
provided that such information is confidential, proprietary or falls within the
definition of a "trade secret" under the Uniform Trade Secrets Act. Xxxxxx
specifically agrees that he will not make use of any such confidential or
proprietary information for his own purpose, or for the benefit of any person,
firm, corporation or other entity except VaxGen. Xxxxxx will abide by VaxGen's
policies and procedures, as established from time to time for the protection of
its trade secrets and confidential information.
12. RETURN OF PROPERTY. All confidential, proprietary and trade secret
information, and all other documents, records, apparatus, equipment and other
physical property which is furnished to or obtained by Xxxxxx in the course of
employment with VaxGen, shall be and remain the sole property of VaxGen. Xxxxxx
agrees that upon request by VaxGen or the termination of Xxxxxx'x employment
(whichever occurs first), Xxxxxx shall return all such property, and agrees not
to make or retain copies, reproductions or summaries of any such property
without the express written consent of VaxGen.
13. NON-SOLICITATION, ANTI-RAIDING. For a period of one (1) year immediately
following the termination of his employment, Xxxxxx agrees that he will not,
either directly or indirectly, (a) attempt to recruit, solicit or take away any
of the employees of VaxGen who worked for VaxGen at any time during the term of
this Agreement; make known to any person, firm or corporation the names or
addresses of, or any information pertaining to, any current or former employees
of VaxGen; (b) use any confidential or proprietary information to attempt to
call on, solicit or take away any clients of VaxGen or any other persons,
entities, or corporations with which VaxGen has had or contemplated any business
transaction or relationship during Xxxxxx'x employment with VaxGen, including,
but not limited to, investments, licenses, joint ventures, and agreements for
development..
14. EQUITABLE RELIEF. Xxxxxx and VaxGen each agree that in the event of a breach
or threatened breach of paragraphs 8 through 13 of this Agreement each party
will not have an adequate remedy at law. Thus, in the event of such a breach or
threatened breach by one party, the other party will be entitled to such
equitable and injunctive relief in a court of law as may be available to prevent
and restrain a breach of the provisions of paragraphs 8 through 13. Said
availability to obtain injunctive relief will not prevent either party from
pursuing any other equitable or legal relief, including the recovery of damages
from such breach or threatened breach.
15. AT-WILL EMPLOYMENT. Xxxxxx understands and agrees that employment at VaxGen
is at-will. This means that, for any reason or no reason, Xxxxxx'x employment
may be terminated, with or without cause, at any time by either Xxxxxx or by
VaxGen, subject to the severance and notice provisions contained in Section 16
below. Nothing in this or any other document or statement shall limit the right
of VaxGen to terminate Xxxxxx'x employment at-will. Only the Board has the
authority to amend this Agreement on behalf of VaxGen, and then
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only in a writing that is signed by both Xxxxxx and VaxGen pursuant to authority
expressly granted by the Board.
16. TERMINATION OF EMPLOYMENT.
A. Subject to the survivability provisions of Section 18 below, Xxxxxx'x
employment under this Agreement and all compensation and benefits
provided for herein shall terminate upon the occurrence of any of the
following events.
(1) Death: In the event of Xxxxxx'x death, the termination shall
be effective upon the date thereof.
(2) Disability: In the event that Xxxxxx should become
"disabled," VaxGen may terminate Xxxxxx'x employment under this
Agreement. For purposes of this paragraph "disabled" shall mean
Xxxxxx'x inability, despite reasonable accommodation, to perform
the essential duties of his position for a period of five (5)
consecutive months, and failure to resume the performance of such
duties on a full-time basis within thirty (30) days of notice
from VaxGen of intent to terminate this Agreement on such
grounds. The termination shall be effective upon the date
specified in VaxGen's notice to Xxxxxx as provided for herein.
Any base salary payable to Xxxxxx by VaxGen may be offset by any
benefits paid to Xxxxxx under any applicable short-term or
long-term disability plan.
(3) Cause: VaxGen may terminate Xxxxxx'x employment under this
Agreement upon the occurrence of "cause" for termination as
herein defined. "Cause" shall mean (a) Xxxxxx'x fraud,
misappropriation, embezzlement or other willful commission of a
dishonest or unlawful act that has the effect of materially
injuring VaxGen or its reputation, (b) Xxxxxx'x conviction of a
crime involving moral turpitude or a felony, (c) Xxxxxx'x willful
or reckless violation of VaxGen's written policies or procedures
that has the effect of materially injuring VaxGen, or Xxxxxx'x
breach of the confidential information and invention assignment
provisions of this Agreement, and, if any such violation or
breach under this Section 16.A(3)(c) is curable, Xxxxxx'x failure
to cure such violation or breach within 15 business days of
receiving notice of such violation or breach from the Board, or
(d) Xxxxxx'x habitual failure to perform his job duties, as
determined by the Board in its reasonable judgment, and after
notice of such failure has been given to Xxxxxx by the Board and
Xxxxxx has had a 15 business-day period within which to cure such
failure. The Parties acknowledge that the reference to a "for
Cause" termination herein does not alter the employment at-will
relationship, but merely sets forth circumstances under which
VaxGen has no obligation to pay severance to Xxxxxx. The
termination shall be effective upon the date specified in
VaxGen's notice to Xxxxxx.
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(4) Without Cause: Either VaxGen or Xxxxxx may terminate Xxxxxx'x
employment under this Agreement without Cause at any time upon
thirty (30) days written notice to the other party. The
termination shall be effective upon the date specified in the
notice given pursuant hereto.
(5) By Xxxxxx with Good Reason: Xxxxxx may terminate his
employment under this Agreement for Good Reason (i) in the event
VaxGen breaches a material term hereof and, after receiving
written notice from Xxxxxx detailing the specific provision
allegedly breached, does not remedy said breach within thirty
(30) days of receiving notice, (ii) there is a demotion of Xxxxxx
from the position of Chief Executive Officer or the assignment of
job duties or responsibilities materially inconsistent with such
position, (iii) VaxGen moves Xxxxxx'x principal place of business
more than thirty-five (35) miles from VaxGen's current principal
place of business at 0000 Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxx, (iv)
there is a reduction in Xxxxxx'x then-current base salary and/or
performance bonus opportunity, or (v) there is a material and
substantial reduction in the aggregate of Xxxxxx'x employee
benefits. The termination shall be effective on the date
specified in the notice given hereunder, which date shall not be
earlier than the date such notice is given nor more than 30 days
after the date such notice is given.
B. In the event that Xxxxxx'x employment under this Agreement is
terminated by VaxGen under paragraphs (A)(1), (A)(2) or (A)(3) above,
or by Xxxxxx under paragraph (A)(4) above, no severance pay will be
due to Xxxxxx; however Xxxxxx shall be entitled to payment for any
earned but unpaid base salary through the date of termination as well
as payment for any accrued but unused vacation time and any accrued
employee benefits, subject to the terms of the applicable employee
benefit plans.
C. In the event that Xxxxxx'x employment under this Agreement is
terminated by VaxGen under paragraph (A)(4) above or by Xxxxxx under
paragraph (A)(5) above, Xxxxxx shall be entitled to receive: (i)
severance pay in the amount of twelve (12) months of his then-existing
annual base salary (such severance being limited strictly to annual
base salary and will not include any amount paid or payable as a bonus
or stock option grant), less required and authorized deductions,
payable as a lump sum for six months' base salary and the other six
months' base salary shall be paid on VaxGen's ordinary payroll cycles
until fully paid out; and (ii) accelerated vesting of all his
outstanding stock options to fully vested status as of the date of
termination.
X. Xxxxxx shall be entitled to the severance benefits provided for in
16.C above if, within twelve (12) months following a Change in Control
(as defined below), VaxGen or its successor in interest terminates
Xxxxxx'x employment for any reason other than for Cause (as defined
above) or Xxxxxx terminates his employment on account of any of the
following: (i) in the event VaxGen breaches a material term hereof
and, after receiving written notice from Xxxxxx detailing the specific
provision allegedly breached, does not remedy said breach
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within thirty (30) days of receiving notice; or (ii) there is a
material reduction in Xxxxxx'x job duties or responsibilities,
including, without limitation, demotion from the position of Chief
Executive Officer; or (iii) VaxGen or its successor in interest moves
Xxxxxx'x principal place of business more than thirty-five (35) miles
from VaxGen's current principal place of business at 0000 Xxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxxxx; or (iv) there is a reduction in Xxxxxx'x
then-current base salary and/or performance bonus opportunity; or (v)
there is a material and substantial reduction in the aggregate of
Xxxxxx'x employee benefits.
E. For purposes of this Agreement, a "Change in Control" shall be deemed
to have occurred if: (i) there is an acquisition by any individual,
entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"))
(for the purposes of this Section, a "Person") of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act)
of 50% or more of the voting power of the then outstanding voting
securities of VaxGen entitled to vote generally in the election of
directors (the "Outstanding Company Voting Securities"); provided,
however, that for purposes of this subsection (a), any acquisition by
any employee benefit plan (or related trust) sponsored or maintained
by VaxGen or any corporation controlled by VaxGen shall not constitute
a Change in Control; or (ii) individuals who, as of the date hereof,
constitute the Board (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board; provided, however, that
any individual (other than an individual whose initial assumption of
office occurs as a result of an actual or threatened solicitation of
proxies or consents by or on behalf of a Person other than the Board)
who becomes a director subsequent to the date hereof whose election or
nomination for election by VaxGen's shareholders was approved by a
vote of at least a majority of the directors then comprising the
Incumbent Board shall be considered as though such individual were a
member of the Incumbent Board; or (iii) there is a consummation of a
reorganization, merger or consolidation or sale or other disposition
of all or substantially all of the assets of VaxGen (a "Business
Combination") unless, following such Business Combination, (a)
individuals and entities who were the beneficial owners of the
Outstanding Company Voting Securities immediately prior to such
Business Combination beneficially own, directly or indirectly, more
than 50% of the voting power of the then Outstanding Company Voting
Securities of the corporation resulting from such Business Combination
(including, without limitation, a corporation which as a result of
such transaction owns VaxGen or all or substantially all of VaxGen's
assets either directly or through one or more subsidiaries) and (b) at
least a majority of the members of the board of directors of the
corporation resulting from such Business Combination were members of
the Incumbent Board at the time of the execution of the initial
agreement, or of the action of the Board, providing for such Business
Combination; or (iv) approval by the shareholders of VaxGen of a
complete liquidation or dissolution of VaxGen.
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F. In the event Xxxxxx'x employment with VaxGen is terminated, Xxxxxx
agrees that he will, unless otherwise requested by the Board, resign
his position on the Board within ten (10) days of the date his
employment is terminated.
17. INDEMNIFICATION. VaxGen shall maintain, for the benefit of Xxxxxx, director
and officer liability insurance in form at least as comprehensive as, and in an
amount that is at least equal to, that maintained by VaxGen as of the Effective
Date of this Agreement for its other officers and directors. In addition, VaxGen
shall indemnify Xxxxxx against liability as an officer and director of VaxGen or
any subsidiary or affiliate of VaxGen to the maximum extent permitted by
applicable law. Xxxxxx'x rights under this Paragraph 17 shall continue so long
as he may be subject to such liability, whether or not his employment may have
terminated prior thereto.
18. SURVIVABILITY. The respective rights and obligations of the Parties
hereunder, including, without limitation, Sections 7, 8, 9, 10, 11, 12, 13, 14,
16(C), 17, 19 and 28 of this Agreement, shall, to the extent necessary, survive
any termination of Xxxxxx'x employment or this Agreement.
19. GOVERNING LAW. This Agreement shall be construed in accordance with and
governed by the laws of the State of California without regard to its conflict
of law rules. This Agreement shall be interpreted in accordance with the plain
meaning of its terms and not strictly for or against either party.
20. ENTIRE AGREEMENT. This Agreement embodies the complete agreement and
understanding of the parties related to Xxxxxx'x employment by VaxGen,
superseding any and all other prior or contemporaneous oral or written
agreements between the parties hereto with respect to the employment of Xxxxxx
by VaxGen, and contains all of the covenants and agreements of any kind
whatsoever between the parties with respect to such employment. Each party
acknowledges that no representations, inducements, promises or agreements,
whether oral or written, express or implied, have been made by either party or
anyone acting on behalf of a party, that are not incorporated herein and that no
agreement or promise not contained herein shall be valid or binding.
21. WAIVER. The failure of either party to insist, in any one or more instances,
upon performance of the terms or conditions of this Agreement shall not be
construed as a waiver or a relinquishment of any right granted under this
Agreement or of the future performance of any such term, covenant or condition.
22. INVALIDITY. Should any provision, portion or part of this Agreement be held
by a court of competent jurisdiction to be invalid, void or unenforceable, the
remaining provisions, portions or parts shall be unaffected and shall continue
in full force and effect, and said invalid, void or unenforceable provision(s),
portion(s) or part(s) shall be deemed not to be part of this Agreement.
23. NO THIRD PARTY BENEFICIARIES. This Agreement is not intended by either party
to create any third-party beneficiaries, and shall not be so construed in any
proceeding. The sole parties to this Agreement are Xxxxxx and VaxGen, and it is
their mutual intent that they alone shall have standing to enforce the
provisions of this Agreement, subject to the provisions of Section 26 below.
24. VOLUNTARY AGREEMENT. Xxxxxx and VaxGen represent and agree that each has
reviewed all aspects of this Agreement, has carefully read and fully understands
all provisions of this Agreement, and is voluntarily entering into this
Agreement. Each party represents and
28
agrees that such party has had the opportunity to review any and all aspects of
this Agreement with the legal, tax or other advisor or advisors of such party's
choice before executing this Agreement.
25. CAPTIONS. The captions of the various paragraphs of this Agreement are
placed herein for the convenience of the parties and the reader, do not
constitute a substantive term or terms of this Agreement, and shall not be
considered in any issue involving the interpretation or application of this
Agreement.
26. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to
the benefit of and shall be enforceable by and against Xxxxxx'x heirs,
beneficiaries and legal representatives. It is agreed that the rights and
obligations of Xxxxxx may not be delegated or assigned except as specifically
set forth in this Agreement. In the event of a Change in Control (as defined
above), VaxGen may assign its rights and obligations under this Agreement to its
successor-in-interest, and in that event such successor-in-interest shall be
deemed to have acquired all rights and assumed all obligations of VaxGen under
this Agreement.
27. NOTICES. Notices given under the terms of this Agreement shall be in writing
and shall be deemed delivered when personally delivered to the person identified
below, or three (3) days after deposited, proper first class postage prepaid, in
the U. S. Mail and addressed as set forth below, or one day after properly
consigned to a recognized national next-day delivery service (e.g., Federal
Express) prepaid and addressed as set forth below, or faxed to the number
provided below and confirmed by a delivery report from the sending fax
transmitter. The officer, addresses and facsimile numbers below may be changed
by written notice given pursuant to this paragraph. Notices shall be given
If to VaxGen: Chairman of the Board of Directors of VaxGen
0000 Xxxxxx Xxxx., Xxxxx 000
Xxxxxxxx, XX. 00000
Fax number: 000-000-0000
If to Xxxxxx: Xx. Xxxxx X. Xxxxxx, Ph.D.
0000 Xxxxxx Xxxx., Xxxxx 000
Xxxxxxxx, XX. 00000
Fax number: 000-000-0000
with a copy to
Xxxxxx X. Xxxxxxx
Wolf, Block, Xxxxxx and Xxxxx-Xxxxx LLP 0000
Xxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxxxxx, XX
00000-0000
28. ALTERNATIVE DISPUTE RESOLUTION PROGRAM. Except as to efforts to seek
injunctive relief as specifically addressed in paragraphs 8 through 14, the
parties understand and agree that any dispute arising out of Xxxxxx'x employment
by VaxGen, the termination of that employment, or arising out of or relating to
this Agreement shall be submitted to binding arbitration in accordance with the
terms of the Alternative Dispute Agreement set forth in Appendix B to this
Agreement and incorporated herein.
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Dated: _________________ ______________________________
Xxxxx X. Xxxxxx, Ph.D.
Dated: _________________ VaxGen, Inc.
By:___________________________
Title:
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APPENDIX A
Inventions. Except as set forth below, I hereby acknowledge that at this time I
have no right, title or other interest in any invention, patent, copyright or
other such material other than the following (if none, so state):
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Dated:
----------------------------- -----------------------------------
Xxxxx X. Xxxxxx, Ph.D.
00
XXXXXXXX X
ALTERNATIVE DISPUTE AGREEMENT
o Agreement To Arbitrate
In the event that any employment dispute arises between VaxGen, Inc.
("VaxGen") and Xxxxx X. Xxxxxx, Ph. D. ("Xxxxxx"), the parties involved will
make all efforts to resolve any such dispute through informal means. However, if
within thirty (30) days of the event giving rise to the dispute, these informal
attempts at resolution fail and if the dispute arises out of or is related to
Xxxxxx'x Employment Agreement, Xxxxxx'x employment, the termination of Xxxxxx'x
employment or alleged unlawful discrimination, including but not limited to
sexual or other unlawful harassment (an "Arbitrable Dispute"), VaxGen and Xxxxxx
will submit the dispute to final and binding arbitration, except as set forth in
Paragraphs 7-14 of the Employment Agreement.
The parties expressly understand and agree that arbitration is the
exclusive remedy for all such Arbitrable Disputes; with respect to such
disputes, no other action may be brought in court or any other forum (except
actions to compel arbitration or enforce an award issued hereunder). THIS
ALTERNATIVE DISPUTE RESOLUTION ("ADR") AGREEMENT IS A WAIVER OF THE PARTIES'
RIGHTS TO A CIVIL COURT ACTION FOR A DISPUTE RELATING TO BREACH OF THE PARTIES'
EMPLOYMENT AGREEMENT, TERMINATION OF THAT EMPLOYMENT OR ALLEGED UNLAWFUL
DISCRIMINATION, WHICH INCLUDES RETALIATION OR SEXUAL OR OTHER UNLAWFUL
HARASSMENT; ONLY AN ARBITRATOR, NOT A JUDGE OR JURY, WILL DECIDE THE DISPUTE.
Arbitrable Disputes arising out of or related to employment, or the
termination of such employment or alleged unlawful discrimination, including
retaliation or sexual or other unlawful harassment, shall include, but not be
limited to, the following: alleged violations of federal, state and/or local
constitutions, statutes or regulations; claims based on any purported breach of
contractual obligation, including breach of the covenant of good faith and fair
dealing; and claims based on any purported breach of duty arising in tort,
including violations of public policy.
The following types of employment disputes are not subject to this ADR
Agreement: (1) disputes related to workers' compensation and unemployment
insurance; (2) claims for benefits covered by a separate benefit plan that
provides for arbitration; and (3) claims subject to Sections 7 through 14 of the
Employment Agreement. Also, nothing in the Employment Agreement or in the ADR
Agreement shall be construed as precluding Xxxxxx from filing a charge with the
Equal Employment Opportunity Commission ("EEOC"), the National Labor Relations
Board ("NLRB") or other federal, state or local agencies, seeking administrative
assistance in resolving claims. However, any claim that cannot be resolved
administratively through such an agency shall be subject to the Employment
Agreement and the ADR Agreement.
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o Request For Arbitration
o Attempt At Informal Resolution Of Disputes
Prior to the submission of any Arbitrable Dispute to arbitration, Xxxxxx
and VaxGen shall attempt to resolve the dispute informally as set forth below.
Xxxxxx and VaxGen will select a mediator from a list provided by the
Federal Mediation and Conciliation Service or other similar agency who will
assist the parties in attempting to reach a settlement of the dispute. The
mediator may make settlement suggestions to the Parties but shall not have the
power to impose a settlement upon them. If the dispute is resolved in mediation,
the matter shall be deemed closed. If the dispute is not resolved in mediation
and goes to the next step (binding arbitration), any proposals or compromises
suggested by either of the parties or the mediator shall not be referred to in
or have any bearing on the arbitration procedure. The mediator cannot also serve
as the arbitrator in the subsequent proceeding unless all parties expressly
agree in writing. o Arbitration Procedures
The party desiring arbitration, whether Xxxxxx or VaxGen, must submit a
"Request For Arbitration" in writing to the other party within the time period
required by the law that applies to the claim under the applicable statute of
limitations. If the "Request for Arbitration" is not submitted in accordance
with the aforementioned time limitations, the party failing to do so will not be
able to bring his claims to this or any other forum. The requesting party may
use a "Request for Arbitration" form supplied by VaxGen (Appendix C).
Alternatively, the requesting party may create a "Request For Arbitration" form
that, unless otherwise required by law, clearly states "Request For Arbitration"
at the beginning of the first page and includes the following information:
1. A factual description of the dispute in sufficient detail to advise the
other party of the nature of the dispute;
2. The date when the dispute first arose;
3. The names, work locations and telephone numbers of any individuals,
including employees or supervisors, with knowledge of the dispute; and
4. The relief requested by requesting party.
The responding party may submit counterclaim(s) in accordance with
applicable law. o Selection Of The Arbitrator
All disputes will be resolved by a single Arbitrator, the Arbitrator will
be mutually selected by VaxGen and Xxxxxx. If the parties cannot agree on an
Arbitrator, then a list of seven (7) arbitrators, experienced in employment
matters, shall be provided by the Judicial Arbitration Mediation Services
("JAMS/Endispute"). The Arbitrator will be selected by the
33
parties who will alternately strike names from the list. The last name remaining
on the list will be the Arbitrator selected to resolve the dispute. Upon
selection, the Arbitrator shall set an appropriate time, date and place for the
arbitration, after conferring with the parties to the dispute.
o The Arbitrator's Authority
The Arbitrator shall have the powers enumerated below:
1. Ruling on motions regarding discovery, and ruling on procedural and
evidentiary issues arising during the arbitration.
2. Ruling on motions to dismiss and/or motions for summary judgment
applying the standards governing such motions under the Federal Rules of Civil
Procedure.
3. Issuing protective orders on the motion of any party or third party
witness. Such protective orders may include, but are not limited to, sealing the
record of the arbitration, in whole or in part (including discovery proceedings
and motions, transcripts, and the decision and award), to protect the privacy or
other constitutional or statutory rights of parties and/or witnesses.
4. Determining only the issue(s) submitted to him/her. The issue(s)
must be identifiable in the "Request For Arbitration" or counterclaim(s). Except
as required by law, any issue(s) not identifiable in those documents is outside
the scope of the Arbitrator's jurisdiction and any award involving such
issue(s), upon motion by a party, shall be vacated.
o Discovery
The discovery process shall proceed and be governed by the standards
of the California Code of Civil Procedure and the Federal Arbitration Act. Each
party may obtain discovery necessary to adequately explore and arbitrate their
respective claims. The Arbitrator shall have the power to enforce the
aforementioned discovery rights and obligations by the imposition of the same
terms, conditions, consequences, liabilities, sanctions and penalties as can or
may be imposed in like circumstances in a civil action under the California Code
of Civil Procedure, except the power to order the arrest or imprisonment of a
person.
o Hearing Procedure
The hearing shall be held at a location mutually agreed upon by the
parties, or as determined by the Arbitrator in the absence of an agreement, and
shall proceed according to the current version of the American Arbitration
Association's "National Rules for the Resolution of Employment Disputes" (the
"Rules") with the following amendments:
1. The Arbitrator shall rule at the outset of the arbitration on
procedural issues that bear on whether the arbitration is allowed to proceed.
2. Each party has the burden of proving each element of its claims or
counterclaims, and each party has the burden of proving any of its affirmative
defenses.
34
3. In addition to, or in lieu of closing argument, either party shall
have the right to present a post-hearing brief, and the due date for exchanging
any post-hearing briefs shall be mutually agreed on by the parties and the
Arbitrator, or determined by the Arbitrator in the absence of agreement.
4. The Rules shall otherwise be modified to the extent necessary to be
consistent with applicable law.
o Substantive Law
1. The parties agree that they will be afforded the identical legal,
equitable, and statutory remedies as would be afforded them were they to bring
an action in a court of competent jurisdiction.
2. The applicable substantive law shall be the law of the State of
California and/or federal law. Choice of substantive law in no way affects the
procedural aspects of the arbitration, which are exclusively governed by the
provisions of this ADR Agreement.
o Opinion And Award
The Arbitrator shall issue a written opinion and award, in conformance
with the following requirements:
1. The opinion and award must be signed and dated by the Arbitrator.
2. The Arbitrator's opinion and award shall decide all issues
submitted.
3. The Arbitrator's opinion and award shall set forth the findings of
fact and conclusions of law supporting each part of the opinion.
4. The Arbitrator shall have the same authority to award remedies,
damages and costs as provided to a judge and/or jury under parallel
circumstances.
o Enforcement Of Arbitrator's Award
Following the issuance of the Arbitrator's decision, any party may
petition a court to confirm, enforce, correct or vacate the Arbitrator's opinion
and award under the Federal Arbitration Act, and/or applicable State law. o Fees
And Costs
Unless otherwise required by law, fees and costs shall be allocated in
the following manner:
1. Each party shall be responsible for its own attorneys' fees, except
as otherwise provided by law for the particular claim(s) at issue.
35
2. VaxGen shall pay the entire cost of the arbitrator's services, the
facility in which the arbitration is to be held, and any similar costs that
Xxxxxx would not have otherwise incurred if the dispute were adjudicated in a
court of law rather than through arbitration.
3. VaxGen shall pay the entire cost of a court reporter to transcribe
the arbitration proceedings. Each party shall advance the cost for said party's
transcript of the proceedings. Each party shall advance its own costs for
witness fees, service and subpoena charges, copying, or other incidental costs
that each party would bear during the course of a civil lawsuit.
4. Each party shall be responsible for its costs associated with
discovery, except as required by law or court order.
o Severability
Each term, clause and provision of this ADR Agreement is separate and
independent, and should any term, clause or provision of this ADR Agreement be
found to be invalid or unenforceable, the validity of the remaining terms,
clauses, and provisions shall not be affected. As to those terms, clauses and
provisions found to be invalid or unenforceable, they shall be replaced with
valid and enforceable terms, clauses or provisions or shall be modified, in
order to achieve, to the fullest extent possible, the economic, business and
other purposes of the invalid or unenforceable terms, clauses or provisions.
DATED:
----------------------------- ---------------------------------
Xxxxx X. Xxxxxx, Ph.D.
DATED: ________________ VaxGen, Inc.
By: ____________________________
Title: _________________________
36
APPENDIX C
REQUEST FOR ARBITRATION FORM
ALTERNATIVE DISPUTE RESOLUTION AGREEMENT
--------------------------------------------------------------------------------
Submission This form (or, alternatively, a form that includes the
Requirement information below) must be submitted by the individual claimant
to the CEO within the time period required by the law that
applies to the claim. If VaxGen requests arbitration, the form
must also be served on the individual within the appropriate time
period.
--------------------------------------------------------------------------------
State the nature of the claim in detail:
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(Continue on reverse and add pages if necessary)
Enter the date of termination or date(s) of alleged incident(s) (i.e., date of
last instance of unlawful discrimination, sexual or other unlawful harassment):
_______/________/_______
Month Day Year
Provide the names and work locations of any individuals, including employees or
supervisors, with knowledge of the dispute:
Name Job Title Work Location
--------------------------------------------------------------------------------
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37
Describe the relief requested (i.e., what you want done):
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please attach any documents relevant to the dispute.)
Signature of Party Requesting Arbitration:
DATED: ______________ _________________________________
Xxxxx X. Xxxxxx, Ph.D.
-- or --
DATED: ______________ VaxGen, Inc.
By: ____________________________
Title: _________________________
38
APPENDIX D
Xxxxx X. Xxxxxx: Involvement with outside organizations
1. Cambrex Corporation (NYSE: CBM); I have been a member of the
Scientific Advisory Committee (SAC) of BioScience Contract Production
since approximately 1990. BioScience was acquired by Cambrex on April
30, 2001. Cambrex has continued the BioScience SAC which meets
approximately every two months. Travel is paid by Cambrex.
2. PATH; PATH is a non-profit with substantial funding from the Gates
Foundation active in global vaccines initiatives. I am a consultant to
PATH in regard to their initiative to secure a new vaccine for
epidemic Group A meningitis in Sub-Saharan Africa. The project is a
priority for GAVI and is joint between PATH, The World Health
Organization and the US Centers for Disease Control and Prevention. I
am both a technical advisor and a member of the committee negotiating
with potential manufacturers. There are no regularly scheduled
meetings of the meningitis task force. I believe my role will
essentially end once PATH issues a contract.
3. The World Bank; I am a consultant to the World Bank in regard to their
vaccine initiatives. I have two current roles.
a) One of these is as a member of the "Brainstorming Group", The
Brainstorming Group are the organizers of the "Out of The Box" (OOTB).
OOTB is composed of 10 very senior international leaders from
industry, government and finance. OOTB is chartered to be the
strategic and operational advisors to the Board of Directors of GAVI
(Global Alliance for Vaccines and Immunization). It is currently
anticipated that the Brainstorming Group would meet twice a year. b) I
am currently on the Vaccine Procurement Group of the GAVI Financing
Task Force. This group coordinates how vaccines are purchased for
approximately 60- 70% of the world's children.
4. Xxxxx Vaccine Institute: I am a Senior Scientific Advisor to the Xxxxx
Vaccine Institute. I have no regularly scheduled responsibilities with
the Institute. I have attended two of their annual events for the past
several years. Each year, typically in June they have a black tie
award dinner in NYC honoring outstanding contributors to the world of
vaccines. The second is a colloquium held in October at Cold Spring
Harbor in New York State. This year I am co-chairman for the Cold
Spring Harbor conference.
Earlier this year the Xxxxx Institute has asked me to write a book on
the history of the development of the vaccine for Haemophilus
influenzae b. I developed the first of the conjugate vaccines now
universally used in the developed world and finding it's way into the
developing countries. This is an in progress background activity.
Xxxxx has offered to hire a professional writer to carry much of the
load.
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5. I am a member of the National Institutes of Health Task force on
malaria. This is a recent appointment and I'm told that they
anticipate only one on-site meeting a year in the Washington DC area.
6. US Medicine Institute: USMI is a Washington DC based not-for-profit
organization whose principal activity is holding policy forums for
government leaders in DC. I am a Senior Fellow of the US Medicine
Institute. As a Senior Fellow I contribute to their planning
activities but have no established responsibilities. Annually they run
a "Leadership Course" principally for senior government personnel.
I've been asked to help structure a three-day portion of the course
for February 2002 focusing on the vaccine manufacture in the US.
7. I have agreed to write a chapter on vaccines manufacture for third
edition of a textbook on vaccines, "New Generation Vaccines". The
senior editor of the textbook is Xxxxx X. Xxxxxx, M.D. It is published
by Xxxxxx Xxxxxx, Inc.
40
