Employment Agreement with Robert Dickey IV
Exhibit
10.66
Employment
Agreement with ▇▇▇▇▇▇ ▇▇▇▇▇▇ IV
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Mr.
▇▇▇▇▇▇ ▇▇▇▇▇▇ IV
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June
11, 2009
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▇▇▇
▇. ▇▇▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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Dear
Rob:
We are
pleased to offer you a position with Hemispherx Biopharma, Inc. (“Hemispherx” or
the “Company”) as Senior Vice President, reporting to me.
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1.
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Annual
Salary. You will receive an annual salary of $275,000, less standard payroll
deductions and all required withholdings. Your salary will be
paid semi-monthly in accordance with our normal payroll
procedures.
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2.
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Employee
Benefits. You will also be eligible to receive employee benefits,
including health care and paid time off, consistent with Hemispherx
company policy for an employee of your seniority. We will
provide you promptly with materials detailing our benefits
programs.
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3.
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Bonus
Opportunity. Your annual bonus opportunity will also be consistent
with Company policy for employees of your seniority and will initially be
set at 25% of your annual salary. Bonuses are payable at the
Company’s discretion, dependent upon both Company and individual
performance. This bonus is not a “cliff” bonus, and can be
partially earned based on partial achievement of
objectives.
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4.
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Stock
Options. You will receive an initial grant of options to
purchase 150,000 shares of
Hemispherx common stock at an exercise price of $2.81 per share, equal to
110% of $2.55, the closing price of the Company’s common stock on the
American Stock Exchange on June 11, 2009, the date on which this agreement
was reached. These options shall vest monthly over a four year
period beginning July, 2009. You will also be entitled to
receive additional annual grants in accordance with the Company’s
incentive compensation policies and plans or as the result of the
achievement of personal objectives agreed to between you and the Company
from time to time.
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5.
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Fundraising
Agreement. The parties agree to terminate the agreement
dated November 26, 2008 pursuant to which the Company engaged you to
assist in fund raising.
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6.
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Termination.
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a.
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Your
employment with Hemispherx Biopharma is “at-will” in which either party
may cancel upon two weeks written
notice.
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b.
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If,
after three (3) months of service as an employee, there is a Change in
Control and within one year following the Change of Control you are
involuntarily terminated or constructively terminated as a result of
material diminution, on a cumulative and aggregate basis (taking into
account any increases in such items), of your duties, authorities,
position, compensation or benefits the Company will provide you with an
amount equal to 1.5 times your annual compensation in effect on the date
of the Change in Control or, if greater, as in effect immediately prior to
the date of termination plus an amount equal to 1.5 times your bonus award
for the year immediately preceding the year of the Change in
Control.
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1
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c.
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If,
after six (6) months of service as an employee, you are involuntarily
terminated for any reason other than for Cause or constructively
terminated as a result of material diminution, on a cumulative and
aggregate basis (taking into account any increases in such items), of your
duties, authorities, position, compensation or benefits, the Company will
provide you with an amount equal to 25% of your annual compensation in
effect immediately prior to the date of termination plus an amount equal
to 25% of your bonus award for the year immediately preceding the year of
the date of termination. These amounts provided in this
paragraph are not in addition to any amounts to be provided under Section
(b) above.
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d.
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If,
after three (3) months of service as an employee, there is a Change in
Control you will receive accelerated vesting for 100% of all unvested
stock option shares that have been granted to you prior to the time of
termination.
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e.
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For
Cause termination shall mean a termination at the election of the Company,
for Cause. For the purposes of this Agreement, "Cause" for
termination shall be deemed to exist upon (a) the occurrence of
dishonesty, gross negligence or misconduct which is materially injurious
to the Company, (b) your conviction of, or the entry of a pleading of
guilty or nolo-contendere to, any crime involving moral turpitude or any
felony, or (c) your refusal to implement an instruction of the CEO or an
approved resolution of the Board of Directors, insofar as such instruction
or resolution is reasonable and not inconsistent with the terms of this
Agreement. Termination Without Cause shall mean any termination
at the election of the Company, other than pursuant to a Termination for
Cause or pursuant to your death or disability, and shall take effect on
the date of termination set forth in a notice to you. The term
"disability" shall mean that you shall have been unable to perform the
services contemplated under this Agreement for a continuous period of not
less than six months, due to a physical or mental disability. A
determination of disability shall be made by a physician satisfactory to
both you and the Company, provided that if you and the Company do not
agree on a physician, you and the Company shall each select a physician
and these two together shall select a third physician, whose determination
as to disability shall be binding on all parties. Change of
Control means the consummation of (i) a business combination (such as a
merger or consolidation) of the Company with any other corporation or
other type of business entity (such as a limited liability company), other
than a business combination that would result in the voting securities of
the Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity) at least fifty percent (50%) of the
total voting power represented by the voting securities of the surviving
entity or its parent outstanding immediately after such business
combination, or (ii) the sale, lease, exchange or other transfer or
disposition by the Company to a non-affiliate of all or substantially all
of the Company’s assets by value.
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2
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7.
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Confidentiality
Agreement. You shall enter into a confidentiality
agreement with the Company.
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8.
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Modification. No
modification or waiver of this Agreement or any provision hereof shall be
binding upon the party against whom enforcement of such modification or
waiver is sought unless it is made in writing and signed by or on behalf
of both parties hereto.
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9.
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Miscellaneous.
This Agreement shall be subject to and construed in accordance with the
laws of the Commonwealth of Pennsylvania. The waiver by either
party of a breach of any provision of this Agreement by the other party
shall not operate and be construed as a waiver or a continuing waiver by
that party of the same or any subsequent breach of any provision of this
Agreement by the other party. If any provisions of this
Agreement or the application thereof to any person or circumstance shall
be determined any court of competent jurisdiction to be invalid or
unenforceable to any extent, the remainder hereof, or the application of
such provision to persons or circumstances other than those as to which it
is so determined to be invalid or unenforceable, shall not be affected
thereby, and each provision hereof shall be valid and shall be enforced to
the fullest extent permitted by law. This Agreement shall be
binding on and inure to the benefit of the parties hereto and their
respective heirs, executors and administrators, successors and
assigns. This Agreement shall not be assignable in whole or in
part by either party, except that the Company may assign this Agreement to
and it shall be binding upon any subsidiary or affiliate of the Company or
any person, firm or corporation with which the Company may be merged or
consolidated or which may acquire all or substantially all of the assets
of the Company. Absent the written consent of the parties this
Agreement shall be kept confidential except that the Company may disclose
the Agreement to the extent necessary to meet its Securities and Exchange
Commission disclosure filing
requirements.
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If the
foregoing accurately represents our understanding, please sign two copies of the
offer letter and return one to me.
If you
have any questions please feel free to call me anytime. I am very
much looking forward to a mutually beneficial relationship with you at
Hemispherx Biopharma.
Regards,
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, M.D
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Chairman
and Chief Executive
Officer
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Acknowledgement:
I, ▇▇▇▇▇▇
▇▇▇▇▇▇ IV, have read, understand and am in agreement with the contents of this
letter.
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ IV
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▇▇▇▇▇▇
▇▇▇▇▇▇
IV
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