Exhibit 10.9
EMPLOYMENT AGREEMENT
Agreement, dated as of July 1, 1998, by and between IMX PHARMACEUTICALS,
INC., a Utah corporation, having its principal place of business at 0000
Xxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000 (the "Corporation"),
and XXXX XXXXXXXXXX, residing at 0000 Xxxxxxx Xxxxx, Xxxx Xxxxx, Xxxxxxx 00000
("Executive").
W I T N E S S E T H:
WHEREAS, the Corporation desires to employ Executive as an executive
officer, and Executive is willing to accept such employment, all subject to the
terms and conditions set forth herein:
NOW, THEREFORE, in consideration of the premises and of the mutual
agreement set forth herein, the parties hereto agree as follows:
1. Employment and Term. Subject to the terms and conditions hereof, the
Corporation hereby employs Executive, and Executive hereby accepts employment by
the Corporation, for a period of three years commencing the date first written
above (the "Term"). This Employment Agreement shall supersede the Employment
Agreement dated March 16, 1997 between the Corporation and Executive.
2. Duties. Executive shall serve the Corporation as its Executive
Vice-President. Executive shall perform such duties as are incidental to the
offices he holds and as may, from time to time, be assigned to him by the Board
of Directors of the Corporation.
3. Compensation.
(a) As base compensation for the services to be rendered by
Executive hereunder, the Corporation agrees to pay to the Executive the sum of
$125,000 ("Base Salary").
(b) The Base Salary shall be adjusted annually on or near each
anniversary of this Agreement to reflect an increase, if any (but not a
decrease). in the cost of living for the previous 12-month period as measured by
the change in the Consumer Price Index published by the United States Department
of Labor.
(c) The Corporation is a party to a Limited Liability Company
Agreement dated as of June 18, 1998 (the "LLC Agreement") with Medicis Partners
Incorporated ("Medicis"). Pursuant to Section 9.1 of the LLC Agreement, Medicis
has options on three successive years to acquire a portion of the Corporation's
Percentage Interest (as defined in the LLC Agreement). In the event Medicis
exercises its first option at a Sales Multiple (as defined in the LLC Agreement)
of two or greater, the Executive shall receive a bonus of 5% of the aggregate
option price received by the Company. In the event Medicis exercises its second
and/or third option at a Sales Multiple of two or greater, the Executive shall
receive a bonus of 3 1/2% of the aggregate option price for each of these
options. Bonuses earned hereunder shall be paid to the Executive within 30 days
after the option price is received by the Corporation.
(d) The Corporation hereby grants to Executive options to purchase
50,000 shares of the Corporation's Common Stock under the Corporation's
Long-Term Incentive Plan adopted by the Board of Directors of the Corporation on
September 9, 1998 (the "Plan"). The options will be exercisable at a price of
$1.75 per share and shall vest in four equal installments over a period of two
years from the date hereof with the first installment vesting six months from
the date hereof and each subsequent installment vesting at subsequent six-month
intervals. The options shall also be subject to the standard terms and
conditions of a Stock Option Agreement in the form customarily used by the
Corporation in connection with its stock option grants.
4. Benefits. The Corporation shall provide Executive with the following
benefits:
(a) He shall be entitled to a $600 per month car allowance for the
Term of this Agreement, plus $400 per month for related car expenses, or the use
of Corporation car.
(b) He shall be entitled to reimbursement for all normal and
reasonable travel, entertainment and other expenses necessarily incurred by him
in the performance of his obligations hereunder. The Corporation shall reimburse
Executive for such expenses upon presentation to the Corporation, within a
reasonable time after such expenses are incurred, of an itemized account of such
expenses, together with such vouchers or receipts for individual expense items
as the Corporation may from time to time require under its established policies
and procedures.
(c) He shall be entitled to participate in, or benefit from, in
accordance with the eligibility and other provisions thereof, such medical
insurance pension, retirement, life insurance, bonus, profit-sharing, stock
option, stock purchase or other fringe benefit plans or policies as the
Corporation may make available to, or have in effect for, its executive
personnel from time to time.
(d) He shall be entitled to two weeks of vacation per year with pay,
or such additional vacation time as Company policy dictates.
5. Termination on Disability or Death.
(a) In the event that Executive, due to physical or mental
disability or incapacity, is unable to substantially perform his duties
hereunder for a period of four successive months, the Corporation or Executive
shall have the right to terminate this Agreement and Executive's employment
hereunder upon 30-days prior written notice. During such time of disability
and/or incapacity, Executive shall be fully compensated and shall be able to
collect on any and all benefits in accordance with the terms to this Agreement
and the Plan. In the event that Executive shall be able to and shall recommence
rendering services and performing all of his
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duties hereunder within such 30-day notice period, such notice shall be
vitiated. Executive's employment shall terminate immediately upon his death.
(b) Upon termination of Executive's employment by reason of his
death or disability as aforesaid, Executive, or in the case of Executive's
death, Executive's personal representatives, shall be entitled to receive all
base compensation earned or accrued to the date of such termination and not
theretofore paid, less any benefits paid to Executive by reason of such
disability.
6. Termination for Certain Causes. In the event of the (i) willful and
material misconduct of Executive in the performance of his duties hereunder,
(ii) willful and material breach of any provision of Sections 8 or 9, or (iii)
conviction of the Executive for any felony under federal or state law, this
Agreement and Executive's employment hereunder may be terminated by the
Corporation without prior notice. Executive's refusal to move out of the State
of Florida at Corporation's request shall not constitute grounds to terminate
under this paragraph.
7. Change of Control. In order to protect the Executive against the
possible consequences and uncertainties of a Change of Control of the
Corporation (as hereinafter defined):
(a) If, during the term of this Agreement, the Executive's
employment is terminated by the Corporation at any time subsequent to a Change
of Control other than for the causes set forth in Paragraph 6, then in such
event the Corporation shall pay the Executive all amounts due to Executive
pursuant to this Agreement, for the entire term of this Agreement. The base
salary of the Executive in effect at the time of termination pursuant to this
Paragraph 7(a) shall remain in effect for the remaining term of this Agreement.
All benefit provided to Executive pursuant to this Agreement shall continue to
be provided to Executive for the entire term of this Agreement.
(b) For purposes of this Paragraph 7, in the event, following a
change of Control, the Executive shall resign from his employment with the
Corporation within 30 calendar days after he has obtained actual knowledge of
any significant and material change or proposed change in his title or nature of
duties, in each instance without his prior consent, such resignation shall be
deemed to be a termination of employment by the Corporation for purposes of
Paragraph 7(a) of this Agreement.
(c) As used in this Paragraph 7, a "Change of Control" shall be
deemed to have occurred if (i) any "person" or "group of persons" (as such terms
are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the "1934 Act"), becomes the "beneficial owner" (as defined in Rule
13d-3 promulgated under the 1934 Act), directly or indirectly, or securities of
the Corporation representing more than 50% of the Corporation's then outstanding
securities having the right to vote on the election of directors, or (ii) if
directors constituting a majority of the Board of Directors are elected to the
Board of Directors without the recommendation or approval of the incumbent Board
of Directors.
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8. Confidentiality.
(a) Executive understands and hereby acknowledges that as a result
of his employment with the Corporation, he will necessarily become informed of,
and have access to, certain valuable and confidential information of the
Corporation and any of its subsidiaries, joint ventures and affiliates,
including, without limitation, inventions, trade secrets, technical information,
know-how, plans, specifications, identity of customers and suppliers, and that
such information, even though it may be developed or otherwise acquired by
Executive, is the exclusive property of the Corporation to be held by Executive
in trust and solely for the Corporation's benefit. Accordingly, Executive hereby
agrees that he shall not, at any time, either during or subsequent to his
employment hereunder, use, reveal, report, publish, transfer or otherwise
disclose to any person, corporation or other entity, any of the Corporation's
confidential information without the prior written consent of the Corporation,
except to responsible officers and employees of the Corporation and other
responsible persons who are in contractual or fiduciary relationship with the
Corporation or who have a need for such information for purposes in the interest
of the Corporation, and except for such information for purposes in the interest
of the Corporation, and except for such information which legally and
legitimately is or becomes of general public knowledge from authorized sources
other than Executive.
(b) Upon the termination of his employment with the Corporation for
any reason whatsoever, Executive shall promptly deliver to the Corporation all
drawings, manuals, letters, notes, notebooks, reports and copies thereof, and
all other materials, including, without limitation, those of a secret and
confidential nature, relating to the Corporation's business which are in
Executive's possession or control.
9. Non-Competition. Executive agrees that, during the term of this
Agreement and for a period of one year after the expiration or termination for
any cause of his employment with the Corporation, he shall not, anywhere in the
United States of America or elsewhere in the world (or in such small area or for
such lesser period as may be determined by a court of competent jurisdiction to
be a reasonable limitation on the competitive activity of Executive), directly
or indirectly:
(i) engage in a competitive line of products that the Corporation
currently sells or is in the process of developing for future sale, either for
his own account or with or for anyone else;
(ii) solicit or attempt to solicit business of any customers of the
Corporation for products or services the same or equivalent to those offered,
sold, produced or under development by the Corporation;
(iii) otherwise divert or attempt to divert from the Corporation any
business whatsoever;
(iv) solicit or attempt to solicit for any business endeavor any
employee of the Corporation;
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(v) interfere with any business relationship between the Corporation
and any other person; or
(vi) render any services the same or equivalent to those offered,
sold, produced or under development by the Corporation as an officer, director,
employee, partner, consultant or otherwise to, or have any interest as a
stockholder, partner, lender or otherwise in, any person which is so engaged.
Notwithstanding anything to the contrary contained in this Section 9, the
provisions hereof shall not prevent the Executive from purchasing or owning up
to 5% of the voting securities of any corporation, the stock of which is
publicly traded.
10. Remedies. Because the Corporation does not have an adequate remedy at
law to protect its business from Executive's competition or to protect its
interests in its trade secrets, privileged, proprietary or confidential
information and similar commercial assets, the Corporation shall be entitled to
injunctive relief, in addition to such other remedies and relief that would, in
the event of a breach of the provisions of Sections 8 or 9, be available to the
Corporation. In the event the parties must file or defend a claim regarding such
breach, and in addition to any other remedies, the prevailing party shall be
entitled to receive from the other party payment of, or reimbursement for, its
reasonable attorneys' fees and disbursements incurred in enforcing any such
provision.
11. Entire Agreement. This Agreement sets forth the entire understanding
of the parties and merges and supersedes any prior or contemporaneous agreements
between the parties pertaining to the subject matter hereof. This Agreement may
not be changed or terminated orally, and no change, termination or attempted
waiver of any of the provisions hereof shall be binding unless in writing and
signed by the party against whom the same is sought to be enforced; provided,
however, that Executive's compensation may be increased at any time by the
Corporation without in any way affecting any of the other terms and conditions
of this Agreement, which in all other respects shall remain in full force and
effect. Failure of a party to enforce one or more of the provisions of this
Agreement or to require at any time performance of any of the obligations hereof
shall not be construed to be a waiver of such provisions by such party nor to in
any way affect the validity of this Agreement of such party's right thereafter
to enforce any provision of this Agreement, nor to preclude such party from
taking any other action at any time which it would legally be entitled to take.
12. Successors and Assigns. Neither party shall have the right to assign
this personal Agreement, or any rights or obligations hereunder, without the
consent of the other party; provided, however, that upon the sale of all or
substantially all of the assets, business and goodwill of the Corporation to
another corporation, or upon the merger or consolidation of the Corporation with
another corporation, this Agreement shall inure to the benefit of, and be
binding upon, both Executive and the corporation purchasing such assets,
business and goodwill, or surviving such merger or consolidation, as the case
may be, in the same manner and to the same extent as though such other
corporation were the Corporation. Subject to the foregoing,
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this Agreement shall inure to the benefit of, and bind, the parties hereto and
their legal representatives, heirs, successors and assigns.
13. Additional Acts. Executive and the Corporation each agrees that he or
it shall, as often as requested to do so, execute, acknowledge and deliver and
file, or cause to be executed, acknowledged and delivered and filed, any and all
further instruments, agreements or documents as may be necessary or expedient in
order to consummate the transactions provided for in this Agreement and do any
and all further acts and things as may be necessary or expedient in order to
carry out the purpose and intent of this Agreement.
14. Communications. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be deemed to
have been given at the time when mailed in any United States post office
enclosed in a registered or certified postage prepaid envelope and addressed to
the addresses set forth at the beginning of this Agreement, or to such other
address as any party may specify by notice to the other party; provided,
however, that any notice of change of address shall be effective only upon
receipt.
15. Construction. The headings of the paragraphs of this Agreement have
been inserted for convenience of reference only and shall in no way restrict or
otherwise affect the construction of the terms or provisions hereof. References
in this Agreement to Sections are to the sections of this Agreement.
16. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed to be an original and all of which together shall
be deemed to be one and the same instrument.
17. Severability. If any provision of this Agreement is held to be invalid
or unenforceable by a court or tribunal of competent jurisdiction, such
invalidity or unenforceability shall not affect the validity and enforceability
of the other provisions of this Agreement and the provision held to be invalid
or unenforceable shall be carried out as nearly as possible according to its
original terms and intent to eliminate such invalidity or unenforceability.
18. Governing Law. This Agreement is made and executed and shall be
governed by the laws of the State of Florida (excluding rules relating to
conflict of laws).
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the date first set forth above.
IMX PHARMACEUTICALS, INC.
By: ________________________________
XXXXXXX X. XXXXXXX, President
____________________________________
XXXX XXXXXXXXXX, Executive
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