EMPLOYMENT AGREEMENT, effective as of February 6, 2019 (the "Effective Date"), is by and between Marker Therapeutics,
Inc. a Delaware corporation (the "Company"), having offices at 0000 Xxxxxxxxx Xxxxxxx #0000, Xxxxxxx, Xxxxx 00000
and at 0 X Xxxxxxx Xx, Xxxxxxxxxxxx, XX 00000 (the "Company Premises") and Xxxxxxx Xxxxxx, M.D. Ph.D. (the "Executive").
the Company desires to employ Executive as its Senior Vice President Clinical Development and to provide Executive with certain
compensation and benefits in return for Executive's services, and Executive agrees to be retained by the Company in such capacity
and to receive the compensation and benefits on the terms and conditions set forth herein;
the Company and Executive desire to enter into this Employment Agreement (the "Agreement") effective as of the
Effective Date in order to memorialize the terms and conditions of Executive's employment by the Company upon and following the
Effective Date; and
Executive's agreement to and compliance with the provisions in Sections 9 through 11 of this Agreement are a material factor,
material inducement and material condition to the Company's entering into this Agreement. Moreover, Executive acknowledges that
a substantial portion of the value of the employment of Executive is Executive's promises to refrain from competing with the Company
as identified in Sections 9 through 11 of this Agreement.
NOW, THEREFORE, in
consideration of the premises and mutual covenants contained herein and for other good and valuable consideration, the
parties agree as follows:
1. At-Will Employment.
The Company and Executive acknowledge that either party has the right to terminate Executive's employment with the Company
at any time for any reason whatsoever, with or without cause, subject to the provisions of Section 6 and 7 herein. This at-will
employment relationship cannot be changed except in a writing signed by both Executive and the Board of Directors of the Company
(or a duly authorized committee thereof, if applicable) (the "Board"). Any rights of Executive to additional payments
or other benefits from the Company upon any such termination of employment shall be governed by Section 7 of this Agreement.
2. Position. Executive
shall serve as the Senior Vice President Clinical Development of the Company with the responsibilities, rights, authority and duties
pertaining to such offices as are established from time to time by the Chief Executive Officer of the Company, and Executive shall
report to the Chief Executive Officer of the Company. Executive shall also act as an officer and/or director and/or manager of
such Affiliates of the Company as may be designated by the Chief Executive Officer of the Company from time to time, commensurate
with Executive's office, all without further compensation, other than as provided in this Agreement. As used herein, "Affiliate" means any
entity that directly or indirectly controls, is controlled by, or is under common control with, the Company.
3. Commitment. Executive
will devote substantially all of her business time and best efforts to the performance of her duties hereunder; provided, however, that Executive shall be allowed, to the extent that such
activities do not interfere with the performance of her duties and responsibilities hereunder and do not conflict with the financial,
fiduciary or other interests of the Company (or its Affiliates), as determined in the sole discretion of the Chief Executive
Officer of the Company, to manage her passive personal investments and to serve on corporate, civic, charitable and industry boards
or committees. Notwithstanding the foregoing, Executive agrees that she shall only serve on for-profit boards of directors or for-profit
advisory committees if such service is approved in advance in the sole discretion of the Chief Executive Officer of the Company.
(a) Base Salary.
During Executive's employment with the Company, effective as of the Effective Date, the Company shall pay Executive a base salary
at the annual rate of Three Hundred Fifty thousand dollars ($350,000), less payroll deductions and withholdings, which shall be
payable in accordance with the standard payroll practices of the Company. Executive's base salary shall be subject to periodic
review and upward adjustment by the Board from time to time in the discretion of the Board.
(b) Annual Performance
Bonus. For each calendar year, Executive shall be eligible to receive an annual performance bonus ("Annual Performance
Bonus") from the Company, with the target amount of such bonus equal to thirty-five percent (35%) of Executive's annual
base salary. The Annual Performance Bonus will be based on achievement of individual and/or Company goals which are established
by the Board (or duly authorized committee thereof), in its sole discretion at the beginning of each calendar year. Following the
close of each calendar year, the Board (or duly authorized committee thereof), will determine whether Executive has earned an Annual
Performance Bonus, and the amount of any such bonus. Payment of the Annual Performance Bonus shall be expressly conditioned upon
Executive's employment with the Company on the date that the Annual Performance Bonus is paid, except as provided in Section 7(b)
and Section 7(c) below. The Annual Performance Bonus shall be paid within ninety (90) days after the end of the calendar year for
which it relates and may be payable in such portion of cash and stock as the Board (or duly authorized committee thereof), shall
determine in its sole discretion. Executive's target Annual Performance Bonus will be subject to periodic review and adjustment
by the Board from time to time.
(c) Equity Awards.
Within ten days of your starting employment with the Company, the Company will recommend to the Board of Directors that you be
eligible to receive 300,000 stock options under the Company's 2014 Omnibus Stock Ownership Plan as amended (the "Plan").
From time to time, Executive will be eligible to participate in and receive stock option or equity award grants under the Plan
in accordance with the terms and conditions of such Plan or plans in existence at that time, in the discretion of the Board.
(d) Reimbursement of
Business Expenses and Commuting. The Company shall reimburse Executive for reasonable travel and other business expenses incurred
by Executive in the performance of her duties hereunder, in accordance with the Company's policies as in effect from time to time.
(e) Signing Bonus.
To compensate you for a bonus you have indicated would shortly be due you from your present employer if you were to remain with
that employer, the Company within ten days of your starting employment with the Company: a) will pay you $50,000; and, b) will
recommend to the Board of Directors that you be eligible to receive 10,000 stock options under the Company's 2014 Omnibus Stock
Ownership Plan. The Company will recommend to the Board of Directors that these 10,000 stock options will vest immediately upon
(f) Reimbursement of
Legal Expenses. Within ten days of presentation to Company of adequate documentation of legal expenses incurred with respect
to entering into employment with the Company, Executive will be reimbursed up to $4,000.00.
5. Benefits. Subject
to applicable eligibility requirements, Executive shall be entitled to participate in all benefit plans and arrangements and fringe
benefits and programs that may be provided to senior executives of the Company from time to time, subject to plan terms and generally
applicable Company policies. Executive is entitled to participate in personal time off and holiday benefits, in accordance with
the Company's policies as in effect from time to time.
The employment of Executive under this Agreement shall terminate upon the earliest to occur of any of the following events:
(i) the death of Executive;
(ii) the termination of
Executive's employment by the Company due to Executive's Disability pursuant to Section 6(b) hereof;
(iii) the termination of
Executive's employment by Executive other than for Good Reason (as hereinafter defined);
(iv) the termination of
Executive's employment by the Company without Cause (termination for Cause being defined in Section 6(c) and requiring the Notice
of Termination for Cause, if applicable, as described in Section 6(c) and 6(d));
(v) the termination of
Executive's employment by the Company for Cause pursuant to Section 6(c) after providing the Notice of Termination for Cause, if
applicable, as described in Section 6(c) and Section 6(d);
(vi) the termination by
Executive of Executive's employment for Good Reason (as hereinafter defined) pursuant to Section 6(e); or
(vii) the termination of
Executive's employment upon mutual agreement in writing between the Company and Executive.
For purposes of this Agreement, "Disability" means that Executive has been unable, for ninety (90) consecutive
days, or for periods aggregating one hundred and twenty (120) business days in any period of twelve consecutive months, to perform
Executive's duties under this Agreement with or without reasonable accommodation, as a result of physical or mental impairment,
illness or injury, as determined in good faith by the Board. A termination of Executive's employment for Disability shall be communicated
to Executive by written notice and shall be effective on the 10th day after sending such notice to Executive (the "Disability
Effective Date"), unless Executive returns to performance of Executive's duties before the Disability Effective Date.
(c) Cause. For purposes
of this Agreement, the term "Cause" shall mean (i) Executive's willful misconduct which is demonstrably and materially
injurious to the Company's reputation, financial condition, or business relationships; (ii) the failure of Executive to attempt
in good faith to follow the legal written direction of the Board; (iii) the failure by Executive to attempt in good faith to perform
the duties required of her hereunder (other than any such failure resulting from incapacity due to physical or mental illness)
within ten (10) days after a written demand for substantial performance is delivered to Executive by the Board which specifically
identifies the manner in which it is believed that Executive has failed to attempt to perform her duties hereunder; (iv) Executive
being convicted of, indicted for, or pleading guilty or nolo contendere to, a felony or any crime involving dishonesty, fraud or
moral turpitude; (v) Executive's dishonesty with regard to the Company or in the performance of her duties hereunder, which in
either case has a material adverse effect on the Company; (vi) Executive's material breach of this Agreement unless corrected by
Executive within ten (10) days of the Company's written notification to Executive of such breach; or, (vii) Executive's failure
to comply in any material respect with the Company's policies and/or procedures, unless corrected by Executive within ten (10)
days of the Company's written notification to Executive of such breach.
(d) Notice of Termination
for Cause. Notice of Termination for Cause shall mean a written notice to Executive that shall indicate the specific termination
provision in Section 6(c) relied upon and shall set forth in reasonable detail the facts and circumstances which provide a basis
for Termination for Cause.
(e) Termination by Executive
for Good Reason. Executive may terminate Executive's employment with the Company by resigning from employment with the Company
for Good Reason. The term "Good Reason" shall mean the occurrence, without Executive's prior written consent,
of any one or more of the following: (i) a material reduction in Executive's base salary; (ii) a material reduction in Executive's
authority, duties or responsibilities; (iii) a relocation of Executive's principal place of employment with the Company (or its
successor, if applicable) to a place that increases Executive's one-way commute by more than fifty (50) miles as compared to Executive's
then-current principal place of employment immediately prior to such relocation, except for required travel by Executive on the
Company's business to an extent substantially consistent with Executive's business travel obligations prior to such relocation;
(iv) the assignment to Executive of any duties or responsibilities in conflict with Executive's professional medical obligations;
or (v) any other action or inaction that constitutes a material breach by the Company (or its successor, if applicable) of any
material provision of this Agreement.
resignation for Good Reason shall be effective unless (1) Executive provides written notice, within ninety (90) days after the
first occurrence of the event giving rise to Good Reason, to the Chairman of the Board setting forth in reasonable detail the material
facts constituting Good Reason and the reasonable steps Executive believes necessary to cure, (2) the Company has had thirty (30)
business days from the date of such notice to cure any such occurrence otherwise constituting Good Reason, and (3) if such event
is not reasonably cured within such period, Executive must resign from all positions Executive then holds with the Company (including
any position as a member of the Board) effective not later than ninety (90) days after the expiration of the cure period.
7. Consequences of Termination of Employment.
General. If Executive's employment is terminated for any reason or no reason, the Company shall pay to Executive
or to Executive's legal representatives, if applicable: (i) any base salary earned, but unpaid; and, (ii) any unreimbursed business
expenses payable pursuant to Section 4 hereof and any accrued but unused personal time off benefits and any other payments or benefits
required by applicable law (collectively "Accrued Amounts"), which amounts shall be promptly paid in a lump sum
to Executive, or in the case of Executive's death to Executive's estate. Other than the Accrued Amounts, Executive or Executive's
legal representatives shall not be entitled to any additional compensation or benefits if Executive's employment is terminated
for any reason other than by reason of Executive's Involuntary Termination (as defined in Section 7(b) below). If Executive's employment
terminates due to an Involuntary Termination, Executive will be eligible to receive the additional compensation and benefits described
in Section 7(b) and 7(c), as applicable.
Involuntary Termination. If (1) Executive's employment with the Company is terminated by the Company without Cause
(and other than as a result of Executive's death or Disability) or (2) Executive terminates employment for Good Reason, and provided
in any case such termination constitutes a "separation from service", as defined under Treasury Regulation Section 1.409A-1(h))
(a "Separation from Service") (such termination described in (1) or (2), an "Involuntary Termination"),
in addition to the Accrued Amounts, Executive shall be entitled to receive the severance benefits described below in this Section
7(b), subject in all events to Executive's compliance with Section 7(d) below:
Executive shall receive continued payment of Executive's Base Salary (as defined below) for the first twelve (12) months
after the date of such termination (the "Severance Period"), paid over the Company's regular payroll schedule.
Executive shall receive a lump sum amount equal to Executive's target Annual Performance Bonus for the year of termination,
pro-rated based on the ratio that the number of days from the beginning of the calendar year in which such termination occurs through
the date of termination bears to 365 (the "Bonus Payment").
Executive is eligible for and timely elects to continue the health insurance coverage under the Company's group health plans
under the Consolidated Omnibus Budget Reconciliation Act of 1985 or the state equivalent ("COBRA") following
Executive's termination date, the Company will pay the COBRA group health insurance premiums for Executive and Executive's
eligible dependents until the earliest of (A) the close of the Severance Period, (B) the expiration of Executive's
eligibility for the continuation coverage under COBRA, or (C) the date when Executive becomes eligible for substantially
equivalent health insurance coverage in connection with new employment or self-employment. For purposes of this Section,
references to COBRA premiums shall not include any amounts payable by Executive under a Section 125 health care reimbursement
plan under the Internal Revenue Code of 1986, as amended and the treasury regulations thereunder (the "Code"). Notwithstanding
the foregoing, if at any time the Company determines, in its sole discretion, that it cannot pay the COBRA premiums without
potentially incurring financial costs or penalties under applicable law (including, without limitation, Section 2716 of the
Public Health Service Act), then regardless of whether Executive elects continued health coverage under COBRA, and in lieu of
providing the COBRA premiums, the Company will instead pay Executive on the last day of each remaining month of the Severance
Period, a fully taxable cash payment equal to the COBRA premiums for that month, subject to applicable tax withholdings (such
amount, the "Health Care Benefit Payment"). The Health Care Benefit Payment shall be paid in monthly
installments on the same schedule that the COBRA premiums would otherwise have been paid and shall be equal to the amount
that the Company would have otherwise paid for COBRA premiums, and shall be paid until the earlier of (i) expiration of the
Severance Period or (ii) the date Executive voluntarily enrolls in a group health insurance plan offered by another employer
(c) Involuntary Termination
in Connection with a Change in Control. In the event that Executive's Involuntary Termination occurs immediately prior to,
on or within the twelve (12) months following the consummation of a Change in Control (as defined in Section 7(e)) and subject
in all events to Executive's compliance with Section 7(d) below, then Executive shall be entitled to the benefits provided above
in Section 7(b) (which, for the avoidance of doubt, shall be incorporated into and become part of this Section 7(c)), except that:
(i) the Bonus Payment shall
equal Executive's full target Annual Performance Bonus for the year of termination, rather than the pro-rated target bonus; and
(ii) the vesting of all
of Executive's outstanding stock options and other equity awards that are subject to time-based vesting requirements shall accelerate
in full such that all such equity awards shall be deemed fully vested as of the date of Executive's Involuntary Termination.
For the avoidance of doubt,
in no event shall Executive be entitled to benefits under both Section 7(b) and this Section 7(c). If Executive is eligible for
benefits under both Section 7(b) and this Section 7(c), Executive shall receive the benefits set forth in this Section 7(c) and
such benefits will be reduced by any benefits previously provided to Executive under Section 7(b).
(d) Conditions and Timing
for Severance Benefits. The severance benefits set forth in Section 7(b) and Section 7(c) above are expressly conditioned upon:
(i) Executive continuing to comply with Executive's obligations under this Agreement, including Sections 8 through 11; and (ii)
Executive signing and not revoking a general release of legal claims in a form similar to the form attached as Exhibit B hereto,
with such changes as are necessary for updates in applicable laws and the circumstances of Executive's termination (the "Release")
within the applicable deadline set forth therein and permitting the Release to become effective in accordance with its terms,
which must occur no later than the Release Deadline (as defined in Section 14 below).
The salary continuation
payments described in Section 7(b) will be paid in substantially equal installments on the Company's regular payroll schedule and
subject to standard deductions and withholdings over the Severance Period following termination; provided, however, that
no payments will be made prior to the effectiveness of the Release. On the effective date of the Release, the Company will pay
Executive the salary continuation payments that Executive would have received on or prior to such date in a lump sum under the
original schedule but for the delay while waiting for the effectiveness of the Release, with the balance of the payments being
paid as originally scheduled. Bonus Payments described in Section 7(b) and 7(c) will be paid in a lump sum cash payment on the
first regular payroll date of the Company following the effective date of the Release, but in no event later than March 15 of the
year following the year in which Executive's termination of employment occurred. All severance benefits described in this Section
7 will be subject to all applicable standard required deductions and withholdings.
"Base Salary" means Executive's annual base salary in effect immediately prior to Executive's termination,
excluding any reduction which forms the basis for Executive's right to resign for Good Reason.
"Change in Control" means a "Change in Control" as defined in the 2014 Omnibus Stock Ownership
Plan, as amended.
8. Confidential Information.
"Confidential Information" as used in this Agreement, includes non-public confidential information provided by or
on behalf of the Company to Executive, including but not limited to specialized training, products already developed or that are
under development by the Company; research and development materials, electronic databases; computer programs and technologies;
marketing and/or scientific studies and analysis; product and pricing knowledge; manufacturing methods; supplier lists and information;
any and all information concerning past, present and future customers, referral sources or vendors; contracts and licenses; management
structure, company ownership, personnel information (including the performance, skills, abilities and payment of employees); purchasing,
accounting and business systems; short and long range business planning; data regarding the Company's past, current and future
financial performance, sales performance, and current and/or future plans to increase the Company's market share by targeting
specific medical issues, demographic and/or geographic markets; standard operating procedures; financial information; trade secrets,
copyrights, derivative works, patents, inventions, know-how, and other intellectual property; business policies; submissions to
government or regulatory agencies and related information; methods of operation; implementation strategies; promotional information
and techniques; marketing presentations; price lists; files or other information; pricing strategies; computer files; samples;
customer originals; or any other confidential information concerning the business and affairs of the Company. The Company's Confidential
Information is also comprised of the personal information received from third parties and/or confidential and proprietary information
regarding research, products, or clinical trials received from third parties, but only if such confidential information is reduced
to writing and marked "Confidential" by the third party. All such confidential information obtained by Executive, whether
in writing, any other tangible form of expression or disclosed orally or through visual means or otherwise, and regardless of
whether such information bears a confidential or proprietary legend, will be presumed to be Confidential Information. Executive
acknowledges that the Confidential Information is vital, valuable, sensitive, confidential and proprietary to Company and provides
Company with a competitive advantage. Executive further acknowledges that Company's Confidential Information is dynamic, and constantly
changes in nature and/or quantity, given that Company continues to refine its Confidential Information. The obligations specified
in this Section 8 shall not apply, and Executive shall have no further obligations under this Agreement with respect to any Confidential
Information that: a) is available to the public at the time of disclosure to Executive or becomes publicly known through no breach
of the undertakings hereunder by Executive; b) becomes known to Executive through disclosure by sources other than the Company
and its Affiliates, said sources being under no obligation of confidentiality to the Company with respect to such Confidential
Information; c) is approved by the Company for release; or d) has been independently developed by Executive without benefit of
the Confidential Information and on Executive's own time and without use of Company resources. Executive understands and agrees
that the Company may require him, as a condition to continued employment, to execute and abide by the terms of a standard proprietary
information and inventions agreement with the Company which will further set forth the terms of, and prohibit the unauthorized
use or disclosure of, the Company's confidential and proprietary information (the "PHA") and that such PHA shall
become part of this Agreement and Executive's obligations under this Agreement.
9. Non-Competition; Non-Solicitation, Etc.
(a) Company Promises.
This Agreement is entered into pursuant to Executive's agreement to these non-compete and non-solicitation provisions. Executive's
agreement to the provisions in Sections 9 through 11 is a material condition of the Company's entering into this Agreement and
continued employment of Executive.
The Company agrees to provide Executive with access to Confidential Information and in a greater quantity and/or expanded
nature than any such Confidential Information that may have already been provided to Executive and with additional opportunities
to broaden the Company's services and develop the Company's customers in a manner not previously available to Executive including,
but not limited to, information regarding the Company's products and business plan; research results; information supporting patent
applications; and Company standard operating procedures related to the Company's research and development efforts.
The Company promises that during Executive's employment with the Company, the Company will provide Executive with the opportunity
to develop goodwill and establish rapport with the customer contacts in a greater quantity and/or expanded nature than any such
opportunities that may have already been provided to Executive.
The Company promises that Executive will continue to receive and have access to Confidential Information throughout Executive's
employment with the Company.
(b) Executive's Promises.
In exchange for the Company's promises listed above and all other consideration provided pursuant to this Agreement, to which these
promises are ancillary, Executive promises as follows:
will not, during or after Executive's employment with the Company, use, copy, remove, disclose or disseminate to any person
or entity, the Company's Confidential Information, except (i) as required in the course of performing Executive's duties with
the Company, for the benefit of the Company, or (ii) when required to do so by a court of law, by any governmental agency
having supervisory authority over the business of the Company or by any administrative or legislative body (including
a committee thereof) with apparent jurisdiction to order Executive to divulge, disclose or make accessible such information,
it being understood that Executive will promptly notify the Company of such requirement so that the Company may seek to
obtain a protective order.
Following employment termination, Executive will immediately return to the Company all materials created, received or utilized
in any way in conjunction with Executive's work performed with the Company that in any way incorporates, reflects or constitutes
Company's Confidential Information.
Executive acknowledges that the market for the Company's products, services, and activities is global, and that the products,
services and/or activities can be provided anywhere in the world. Executive recognizes that the Company draws its customers and/or
clients from around the world because it will seek to file patents and run clinical trials in countries around the world, and sell
its product to consumers around the world and/or pharmaceutical companies located around the world. Moreover, Executive recognizes
that the Company's customers may be contacted by telephone, in person, or in writing (including e-mail via the Internet). Executive
further acknowledges that due to the international scope of the Company's customer and client base, the following non-solicitation/non-competition
restriction is necessary.
Executive agrees and acknowledges that Executive shall not provide to the Company, either directly or indirectly, access
to Confidential Information, as defined in Section 8, from or belonging to a third party that Executive was exposed to or received
from said third party prior to the execution date of this Agreement and that is the subject of any confidentiality requirement
of any kind between Executive and said third party. Company agrees that: (A) Executive shall be allowed to participate fully in
the defense of any such action against Company and in any settlement negotiations, and (B) any payment to Company by Executive
under this Section shall be only after any settlement has been consummated or judicial action has become final and non-appealable.
Ancillary to the consideration reflected within this Agreement, the Company and Executive agree to the following non-competition
provisions. Executive agrees that during Executive's employment with the Company and for a period of twelve (12) months following
the termination of her employment ("Non-Compete Period"):
shall not, directly or indirectly, engage in or participate (including, without limitation, as an investor, officer, employee,
director, agent, or consultant (any such capacity, being a "Participant")) in or on behalf of any entity engaging
in the "Company's Business", said Company's Business being defined as: non-gene modified multi-antigen specific
T cell therapies for the treatment of hematologic malignancies and solid tumors (the "Non-Compete Obligations"),
provided, however, that nothing herein shall prevent him from investing as a less than 5% shareholder in securities of any
company listed on a national securities exchange or quoted on an automated quotation system.
Geographic Limitation. The geographic limitation for the Non-Compete Obligations is North America, Europe and Japan;
Executive agrees that Executive's work for any third party engaged in the Company's Business during the Non-Compete Period
inevitably would lead to Executive's unauthorized use of Company's Confidential Information, even if such use is unintentional.
Because it would be impossible, as a practical matter, to monitor, restrain, or police Executive's use of such Confidential Information
other than by Executive's not working for such third party, and because the Company's Business is highly specialized, the competitors
are identifiable, the market for the Company's product, services, and activities is global, and the Company's customers are located
throughout the world, Executive agrees that restricting such employment as set forth in this Agreement is the narrowest way to
protect Company's legitimate business interests, and the narrowest way of enforcing Executive's consideration for the receipt of
Company's consideration (namely, Executive's promise not to use or disclose Confidential Information).
Nonsolicitation of Employees. Executive agrees that during the Non-Compete Period, Executive will not, directly or
indirectly, (i) induce or solicit any person who was an employee, consultant or independent contractor of the Company or any of
its Affiliates, to terminate such individual's employment or service with the Company or any of its Affiliates or (ii) assist any
other person or entity in such activities.
Extension of Non-Solicitation/Non-Competition and Non-Recruitment Periods. If Executive is found by a court of competent
jurisdiction to have breached any promise made in Section 9 of this Agreement, the periods specified in Section 9(c) of this Agreement
shall be extended by one month for every month in which Executive was in breach so that the Company has the full benefit of the
time period provided in Section 9(c).
10. Injunction. Executive
recognizes that Executive's services hereunder are of a special, unique, unusual, extraordinary and intellectual character giving
them a peculiar value, the loss of which cannot be reasonably or adequately compensated for in damages. Executive acknowledges
that if Executive were to leave the employ of the Company for any reason and compete, directly or indirectly, with the Company,
or solicit the Company's employees, or use or disclose, directly or indirectly, the Company's Confidential Information (whether
in tangible form or memorized), that such competition, solicitation, use and/or disclosure would cause the Company irreparable
harm and injury for which no adequate remedy at law exists. Executive agrees this Agreement is the narrowest way to protect the
Company's interests. Therefore, in the event of the breach or threatened breach of any of Sections 9 through 11 of this Agreement
by Executive, the Company shall be entitled to obtain injunctive relief to enjoin such breach or threatened breach, in addition
to all other remedies and alternatives that may be available at law or in equity. Executive acknowledges that the remedies contained
in this Agreement for violation of this Agreement are not the exclusive remedies that the Company may pursue.
Inventions Retained and Licensed. Executive has attached hereto as Exhibit A, a list describing all inventions,
original works of authorship, derivative works, developments, improvements and trade secrets that (i) were made by Executive prior
to her employment with the Company, (ii) belong to Executive, (iii) relate to the Company's proposed business, products or research
and development and (iv) are not assigned to the Company hereunder (collectively, "Prior Inventions"); or, if
no such list is attached, Executive represents that there are no such Prior Inventions. Executive agrees that Executive will not
incorporate, or permit to be incorporated, any Prior Invention owned by Executive or in which Executive has an interest into a
Company product, process or service without the Company's prior written consent. Nevertheless, if, in the course of Executive's
employment with the Company, Executive incorporates into a Company product, process or service a Prior Invention owned by Executive
or in which Executive has an interest, Executive hereby grants to the Company a nonexclusive, royalty-free, fully paid-up, irrevocable,
perpetual, transferable, sublicensable, worldwide license to reproduce, make derivative works of, distribute, perform, display,
import, make, have made, modify, use, sell, offer to sell, and exploit in any other way such Prior Invention as part of or in connection
with such product, process or service, and to practice any method related thereto.
Assignment of Inventions. Executive agrees that Executive will promptly make full written disclosure to the Company,
will hold in trust for the sole right and benefit of the Company, and hereby assign to the Company, or its designee, all Executive's
right, title, and interest in and to any and all inventions, original works of authorship, derivative works, developments, concepts,
modifications, improvements (including improvements to Confidential Information), designs, discoveries, ideas, know-how, trademarks,
trade dress, trade secrets or other intellectual property, whether or not patentable or registrable under copyright or similar
laws, which Executive may solely or jointly conceive or develop or reduce to practice, or cause to be conceived or developed or
reduced to practice, whether or not reduced to drawings, written descriptions, documentation or other tangible form, as applicable,
during the period of time Executive is employed by the Company (collectively, "Inventions"), except as provided
in Section 11(f) below. Executive further acknowledges that all original works of authorship which are made by Executive (solely
or jointly with others) within the scope of and during the period of Executive's employment with the Company and which are protectible
by copyright are "works made for hire" as that term is defined in the United States Copyright Act. Executive understands
and agrees that the decision whether or not to commercialize or market any Invention is within the Company's sole discretion and
for the Company's sole benefit and that no royalty will be due to Executive as a result of the Company's efforts to commercialize
or market any such Invention.
Inventions Assigned to the United States. Executive agrees to assign to the United States government all Executive's
right, title, and interest in and to any and all Inventions whenever such full title is required to be in the United States by
a contract between the Company and the United States or any of its agencies.
Maintenance of Records. Executive agrees to keep and maintain adequate and current written records of all Inventions
during the term of Executive's employment with the Company. The records will be in the form of notes, sketches, drawings and any
other format that may be specified by the Board. The records will be available to and remain the Company's sole property at all
Patent and Copyright Registrations. Executive agrees to assist the Company, or its designee, at the Company's expense,
in every proper way to secure the Company's rights in any Inventions and any copyrights, patents, mask work rights or other intellectual
property rights relating thereto in any and all countries, including, but not limited to, the disclosure to the Company of all
pertinent information and data with respect thereto, the execution of all applications, specifications, oaths, declarations, assignments
and all other instruments that the Company deems necessary in order to apply for and obtain such rights and in order to assign
and convey to the Company, its successors, assigns, and nominees the sole and exclusive rights, title and interest in and to such
Inventions, and any copyrights, patents, mask work rights or other intellectual property rights relating thereto. Executive further
agrees that Executive's obligations to execute or cause to be executed, when it is in Executive's power to do so, any such instrument
or papers shall continue after the termination of this Agreement. If the Company is unable because of Executive's mental or physical
incapacity or for any other reason to secure Executive's signature to apply for or to pursue any application for any United States
or foreign patents or copyright registrations covering any Inventions or original works of authorship assigned to the Company as
above, then Executive hereby irrevocably designates and appoints the Company and its duly authorized officers and agents as Executive's
agent and attorney in fact, to act for and in Executive's 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 Executive.
Exception to Assignments. Executive understands that the provisions of this Agreement requiring assignment of Inventions
to the Company does not apply to any Invention that Executive has developed entirely on Executive's own time without using the
Company's equipment, supplies, facilities, trade secret information or Confidential Information (an "Other Invention"),
except for those Other Inventions that either (i) relate in any way at the time of conception or reduction to practice of such
Other Invention to the Company's Business or (ii) result from any work that Executive performed for the Company. Executive will
advise the Company promptly in writing, under a confidentiality agreement, of any Invention that Executive believes constitutes
an Other Invention and is not otherwise disclosed on Exhibit A. Executive agrees that Executive will not incorporate, or
permit to be incorporated, any Other Invention owned by Executive or in which Executive has an interest into a Company product,
process or service without the Company's prior written consent. Notwithstanding the foregoing sentence, if, in the course of Executive's
employment with the Company, Executive incorporates into a Company product, process or service an Other Invention owned by Executive
or in which Executive has an interest, Executive hereby grants to the Company a nonexclusive, royalty-free, fully paid-up, irrevocable,
perpetual, transferable, sublicensable, worldwide license to reproduce, make derivative works of, distribute, perform, display,
import, make, have made, modify, use, sell, offer to sell, and exploit in any other way such Other Invention as part of or in connection
with such product, process or service, and to practice any method related thereto.
12. Disputes. Any
dispute or controversy between the Company and Executive, arising out of or relating to this Agreement, the breach of this Agreement,
the Company's employment of Executive, or otherwise, shall be settled by binding arbitration conducted by and before a single
arbitrator in Houston, Texas administered by the American Arbitration Association in accordance with its Employment Arbitration
Rules (the "AAA Rules") then in effect and judgment on the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof. Both Employee and the Company hereby waive the right to a trial by jury or judge, or by administrative
proceeding, for any covered claim or dispute. To the extent the AAA Rules conflict with any provision or aspect of this Agreement,
this Agreement shall control. The arbitrator shall have the authority to award any remedy or relief that a court of competent
jurisdiction could order or grant, including, without limitation, the issuance of an injunction. However, either party may, without
inconsistency with this arbitration provision, apply to any court having jurisdiction over such dispute or controversy and seek
interim provisional, injunctive or other equitable relief until the arbitration award is rendered or the controversy is otherwise
resolved. Except as necessary in court proceedings to enforce this arbitration provision or an award rendered hereunder, or to
obtain interim relief, neither a party nor an arbitrator may disclose the existence, content or results of any arbitration hereunder
without the prior written consent of the Company and Executive. All claims, disputes, or causes of action under this Agreement,
whether by Employee or the Company, must be brought in an individual capacity, and shall not be brought as a plaintiff (or claimant)
or class member in any purported class or representative proceeding, nor joined or consolidated with the claims of any other person
or entity. The arbitrator may not consolidate the claims of more than one person or entity, and may not preside over any form
of representative or class proceeding. This Agreement is made under the provisions of the Federal Arbitration Act (9 U.S.C., Sections
1-14) ("FAA") and will be construed and governed accordingly. It is the parties' intention that both the procedural
and the substantive provisions of the FAA shall apply. Questions of arbitrability (that is whether an issue is subject to arbitration
under this agreement) shall be decided by the arbitrator. Likewise, procedural questions which grow out of the dispute and
bear on the final disposition are also matters for the arbitrator. However, where a party already has initiated a judicial proceeding,
a court may decide procedural questions that grow out of the dispute and bear on the final disposition of the matter. Each party
shall bear its or her costs and expenses in any arbitration hereunder and one-half of the arbitrator's fees and costs; provided,
however, that the arbitrator shall have the discretion to award the prevailing party reimbursement of its or her reasonable attorney's
fees and costs, unless such award is prohibited by applicable law. Notwithstanding the foregoing, Executive and the Company shall
each have the right to resolve any dispute or cause of action involving trade secrets, proprietary information, or intellectual
property (including, without limitation, inventions assignment rights, and rights under patent, trademark, or copyright law) by
court action instead of arbitration.
13. Notices. All
notices given under this Agreement shall be in writing and shall be deemed to have been duly given (a) when delivered
personally, (b) three business days after being mailed by first class certified mail, return receipt requested, postage
prepaid, (c) one business day after being sent by a reputable overnight delivery service, postage or delivery charges
prepaid, or (d) on the date on which a facsimile is transmitted to the parties at their respective addresses stated below.
Any party may change its address for notice and the address to which copies must be sent by giving notice of the new
addresses to the other party in accordance with this Section 13, except that any such change of address notice shall not be
effective unless and until received.
If to the Company:
0000 Xxxxxxxxx Xxxxxxx #0000
Xxxxxxx, Xxxxx 00000
Attention: Chairman of the Board of Directors
with a copy (which shall not constitute notice)
Xxxxxxxx Xxxx & Xxxxxxxx, XXX
Xxxx xx Xxxxxxx Xxxxx, Xxxxx 0000
000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
If to Executive, to Executive's
address on file with the Company.
14. Tax Provisions.
(a) Section 409A.
Notwithstanding anything in this Agreement to the contrary, the following provisions apply to the extent severance benefits provided
herein are subject to the provisions of Section 409A of the Code and the regulations and other guidance thereunder and any state
law of similar effect (collectively "Section 409A"). Severance benefits shall not commence until Executive's
Separation from Service. Each installment of severance benefits is a separate "payment" for purposes of Treasury Regulations
Section 1.409A-2(b)(2)(i), and the severance benefits are intended to satisfy the exemptions from application of Section 409A
provided under Treasury Regulations Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9). However, if such exemptions are
not available and Executive is, upon Separation from Service, a "specified employee" for purposes of Section 409A, then,
solely to the extent necessary to avoid adverse personal tax consequences under Section 409A, the timing of the severance benefits
payments shall be delayed until the earlier of (i) six (6) months and one day after Executive's Separation from Service, or (ii)
Executive's death. Executive shall receive severance benefits only if Executive executes and returns to the Company the Release
within the applicable time period set forth therein and permits such Release to become effective in accordance with its terms,
which date may not be later than sixty (60) days following the date of Executive's Separation from Service (such latest permitted
date, the "Release Deadline"). If the severance benefits are not covered by one or more exemptions from the application
of Section 409A and the Release could become effective in the calendar year following the calendar year in which Executive's Separation
from Service occurs, the Release will not be deemed effective any earlier than the Release Deadline. None of the severance benefits
will be paid or otherwise delivered prior to the effective date of the Release. Except to the minimum extent that payments must
be delayed because Executive is a "specified employee" or until the effectiveness of the Release, all amounts will be
paid as soon as practicable in accordance with the schedule provided herein and in accordance with the Company's normal payroll
practices. The severance benefits are intended to qualify for an exemption from application of Section 409A or comply with its
requirements to the extent necessary to avoid adverse personal tax consequences under Section 409A, and any ambiguities herein
shall be interpreted accordingly.
(b) Section 280G.
If any payment or benefit Executive will or may receive from the Company or otherwise (a "280G Payment") would
(i) constitute a "parachute payment" within the meaning of Section 280G of the Code, and (ii) but for this sentence,
be subject to the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), then any such 280G Payment
pursuant to this Agreement or otherwise (a "Payment") shall be equal to the Reduced Amount. The "Reduced
Amount" shall be either (x) the largest portion of the Payment that would result in no portion of the Payment (after
reduction) being subject to the Excise Tax or (y) the largest portion, up to and including the total, of the Payment, whichever
amount (i.e., the amount determined by clause (x) or by clause (y)), after taking into account all applicable federal, state and
local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive's
receipt, on an after-tax basis, of the greater economic benefit notwithstanding that all or some portion of the Payment may be
subject to the Excise Tax. If a reduction in a Payment is required pursuant to the preceding sentence and the Reduced Amount is
determined pursuant to clause (x) of the preceding sentence, the reduction shall occur in the manner (the "Reduction Method")
that results in the greatest economic benefit for Executive. If more than one method of reduction will result in the same
economic benefit, the items so reduced will be reduced pro rata (the "Pro Rata Reduction Method").
Notwithstanding the foregoing,
if the Reduction Method or the Pro Rata Reduction Method would result in any portion of the Payment being subject to taxes pursuant
to Section 409A that would not otherwise be subject to taxes pursuant to Section 409A, then the Reduction Method and/or the Pro
Rata Reduction Method, as the case may be, shall be modified so as to avoid the imposition of taxes pursuant to Section 409A as
follows: (A) as a first priority, the modification shall preserve to the greatest extent possible, the greatest economic benefit
for Executive as determined on an after-tax basis; (B) as a second priority, Payments that are contingent on future events (e.g.,
being terminated without cause), shall be reduced (or eliminated) before Payments that are not contingent on future events; and
(C) as a third priority, Payments that are "deferred compensation" within the meaning of Section 409A shall be reduced
(or eliminated) before Payments that are not deferred compensation within the meaning of Section 409A.
Unless Executive and the
Company agree on an alternative accounting firm, the accounting firm engaged by the Company for general tax compliance purposes
as of the day prior to the effective date of the change of control transaction triggering the Payment shall perform the foregoing
calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or
group effecting the change in control transaction, the Company shall appoint a nationally recognized accounting firm to make the
determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm
required to be made hereunder. The Company shall use commercially reasonable efforts to cause the accounting firm engaged to make
the determinations hereunder to provide its calculations, together with detailed supporting documentation, to Executive and the
Company within fifteen (15) calendar days after the date on which Executive's right to a 280G Payment becomes reasonably likely
to occur (if requested at that time by Executive or the Company) or such other time as requested by Executive or the Company.
If Executive receives a
Payment for which the Reduced Amount was determined pursuant to clause (x) of the first paragraph of this Section 14(b) and the
Internal Revenue Service determines thereafter that some portion of the Payment is subject to the Excise Tax, Executive shall promptly
return to the Company a sufficient amount of the Payment (after reduction pursuant to clause (x) of the first paragraph of this
Section 14(b) so that no portion of the remaining Payment is subject to the Excise Tax. For the avoidance of doubt, if the Reduced
Amount was determined pursuant to clause (y) in the first paragraph of this Section 14(b), Executive shall have no obligation to
return any portion of the Payment pursuant to the preceding sentence.
Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas
without reference to principles of conflict of laws.
Entire Agreement/Amendments. This Agreement and the instruments contemplated herein contain the entire understanding
of the parties with respect to the employment of Executive by the Company from and after the Effective Date and supersede any prior
agreements or promises between the Company and Executive, except for any outstanding stock option or other equity award agreement
previously entered into between Executive and the Company. There are no restrictions, agreements, promises, warranties, covenants
or undertakings between the parties with respect to the subject matter herein other than those expressly set forth herein and therein.
This Agreement may not be altered, modified, or amended except by written instrument signed by the parties hereto.
No Waiver. The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion shall
not be considered a waiver of such party's rights or deprive such party of the right thereafter to insist upon strict adherence
to that term or any other term of this Agreement. Any such waiver must be in writing and signed by Executive or an authorized officer
of the Company, as the case may be.
Assignment. This Agreement shall not be assignable by Executive.
Representation. Executive represents that Executive's employment by the Company and the performance by Executive
of her obligations under this Agreement do not, and shall not, breach any agreement, including, but not limited to, any agreement
that obligates him to keep in confidence any trade secrets or confidential or proprietary information of her or of any other party,
to perform services for any other party or to refrain from competing, directly or indirectly, with the business of any other party.
Executive shall not disclose to the Company or use any trade secrets or confidential or proprietary information of any other party.
Successors; Binding Agreement; Third Party Beneficiaries. This Agreement shall inure to the benefit of and be binding
upon the personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees, legatees and
permitted assignees of the parties hereto.
Taxes. The Company shall withhold from any and all compensation, severance and other amounts payable under this Agreement
such Federal, state, local or other taxes as may be required to be withheld pursuant to any applicable law or regulation.
The respective rights and obligations of the parties hereunder, including without limitation Sections 8 through 11 hereof,
shall survive any termination of Executive's employment to the extent necessary to the agreed preservation of such rights and
This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
The headings of the sections contained in this Agreement are for convenience only and shall not be deemed to control or affect
the meaning or construction of any provision of this Agreement.
Signature Page Follows
IN WITNESS WHEREOF,
the parties hereto have duly executed this Agreement as of the day and year first above written.
||By: Marker Therapeutics, Inc.|
||/s/ Xxxxx Xxxxx|
||Name: Xxxxx Xxxxx|
||Title: President and Chief Executive Officer|
|/s/ Xxxxxxx Xxxxxx
|Name: Xxxxxxx Xxxxxx, M.D. Ph.D.