Exhibit 10.34
AMENDMENT TO EMPLOYMENT AGREEMENT
This AMENDMENT TO EMPLOYMENT AGREEEMENT, the ("Amendment") as and
between Xxxxx Xxxxx ("Executive") and eXegenics, Inc., including its current,
former and future parents, agents, officers, directors, employees, successors,
assigns, predecessors and affiliated companies (the "Company"), collectively
referred to as the "Parties," is entered into effective the 30th day of March
2004.
WHEREAS, the Company and Executive seek to amend certain terms of the
Parties' Employment Agreement, dated March 10, 2003, annexed hereto as Exhibit
A., (the "Employment Agreement") as set forth below and reach other
understandings related to Executive's employment;
NOW THEREFORE, in consideration of the promises set forth below and
Executive's continued employment with the Company, the value and sufficiency of
which are hereby acknowledged by the Parties, the Parties agree as follows:
1. a. Paragraph 3 of the Employment Agreement is deleted and
replaced as follows. "Position and Duties of Executive.
Executive shall serve the Company faithfully, diligently and
to the best of his ability as its President, Chief Executive
Officer, and Chief Financial Officer and shall devote all of
his full business time, energies and skill to his duties
hereunder and to the business and affairs of the Company and
will not, directly or indirectly, engage or participate in any
other business or professional activities during the
Employment Period. In this position, Executive shall perform
such executive and managerial duties and responsibilities
reasonably necessary to the operation of the Company and as
may be assigned to him from time to time by the Company's
Board of Directors. Executive shall report solely to the Board
and, during his employment and subject to the authority and
discretion of the Board, shall have responsibility for the
general management, day-to-day operations, and long term
planning of the Company."
b. Paragraph 4(c) of the Employment Agreement is revised by
adding the following as Paragraph 4(c)(iii): As of this date,
Executive shall be awarded a Second Option ("Second Option")
to purchase an additional 75,000 shares of the Company's
Common Stock. This Second Option granted shall vest in three
equal installments: The first immediately upon the grant date
(which grant date shall be the date on which the Board
approves this Amendment, the second on the first anniversary
of that date and the final upon the second anniversary of that
date. The Second Option shall be granted and subject to all
the terms and conditions of the Option Plan and shall be
evidenced by an agreement, which agreement shall provide,
among other things, that Executive shall have ten years to
exercise such option for a per share exercise price equal to
the fair market value of the Common Stock as of the date of
such option grant as
determined in good faith by the Board (subject to forfeiture,
earlier termination and adjustment under certain circumstances
described more fully in the Option Plan and applicable option
agreement) and that:
i. in the event of a Change of Control (as defined
below) in consequence of which Executive is
terminated by the Company or his salary,
responsibilities or title are diminished,
Executive shall be treated as having reached the
third anniversary date on which the Second Option
has been granted and the entire Second Option (to
the extent then not vested) shall be immediately
exercisable. The term "Change of Control" shall
mean: (i) a sale of all or substantially all of
the assets of the Company; (ii) a sale (including
an exchange) of all or fifty-one percent (51%) or
more of the shares of capital stock of the
Company; or (iii) the merger, consolidation,
amalgamation or like transaction of the Company
with or into another corporation.
ii. if Executive is terminated by the Company without
Cause or is terminated by the Company in the event
of a Change of Control, all options (including the
Second Option and the options granted under the
Employment Agreement) shall remain exercisable for
two years following such termination.
c. Paragraph 5(a) of the Employment Agreement shall be deleted
and replaced with the following: "Reimbursement of Business
Related Expenses. From this date forward, the Company shall
reimburse Executive for all reasonable expenses upon the
presentation of reasonably itemized statements of such
expenses in accordance with the Company's policies and
procedures as in effect from time to time. Beginning May 1,
2004, expenses (including but not limited to airfare, lodging,
rental cars, etc.) relating to Executive's travel to and from
his residence in Illinois and Dallas, Texas (or any other
location where the Company is based) shall not exceed
$2,083.33 per month or $25,000 in any twelve (12) months; such
expenses incurred in the tax year 2004 and thereafter,
however, shall be treated by the Company as fringe benefits
and shall be includable in Executive's IRS form W-2 on a
gross-up basis".
d. Paragraph 8(h) of the Employment Agreement shall be modified
as follows: delete "State of Texas" and replace with "State of
New York."
2. Executive acknowledges and agrees that the Company's Board of
Directors, and/or its agents, have not negatively impacted or
interfered in any way with Executive's ability to review and/or sign
any Company filings or certifications. Executive acknowledges and
agrees that all such filings or certifications signed by Executive
are done so freely and voluntarily.
3. Executive acknowledges and agrees that he is not aware of any facts
or circumstances that would give rise to any claims by Executive
against the Company, including but not limited to a claim for
violation of the Employment Agreement or a claim that he has grounds
to terminate his employment for "Good Reason," as that term is
defined under the Employment Agreement.
4. To the extent permitted by law, Executive agrees that if any other
person or entity should file or initiate any complaint, charge,
claim, proceeding, or lawsuit against the Company relating to any
aspect of that person's employment, Executive will not voluntarily
assist, support or participate in the bringing of any allegation
against the Company. Executive further agrees to assist and
cooperate with the Company in connection with the defense or
prosecution of any claim that may be brought against or by the
Company or any future investigation or dispute of any kind regarding
the Company, as well as with the Board's efforts on behalf of the
Company.
5. This Amendment represents the entire agreement of the Parties and
shall supersede any and all previous contracts, arrangements,
representations and understandings between the Company and the
Executive, with the exception of the Employment Agreement and the
documents referenced therein, on the particular issues herein. In
the event of any conflict between the terms of this Amendment and
the Employment Agreement, this Amendment shall govern. This
Amendment may be modified only by mutual written agreement of the
Parties.
6. This Amendment shall be binding upon, inure to the benefit of and be
enforceable by the Executive and the Company, their respective
heirs, executors, administrators, successors and assigns. In the
event the Company is merged, consolidated or liquidated, or
otherwise combined into one or more corporations, the provisions of
this Agreement shall be binding upon and inure to the benefit of the
parent corporation or the corporation resulting from such merger or
to which the assets shall be sold or transferred, which corporation
from and after the date of such merger, consolidation, sale or
transfer shall be deemed to be the Company for purposes of this
Amendment. This Amendment shall not be assignable by the Employee.
7. Executive acknowledges and agrees (i) that he is entering into this
Amendment knowingly and voluntarily after carefully reviewing it;
(ii) that he has had ample time to review the Amendment and has had
the
opportunity to review the Amendment with his own counsel of his own
choosing (not the Company's counsel); (iii) that he understands its
final and binding effect; and (iv) that the only promises made to
him to obtain his agreement and signature are those stated in this
Amendment. The Parties participated jointly in the negotiation and
preparation of this Amendment and each party has had the opportunity
to obtain the advice of legal counsel and to review, comment upon
and redraft it. Accordingly, it is agreed that no rule of
construction shall apply against any party in favor or any party.
This Amendment shall be construed as if the parties jointly prepared
it, and any uncertainty or ambiguity shall not be interpreted
against any on party in the favor of the other.
8. This Amendment and the Employment Agreement shall be construed and
enforced in accordance with the laws of the State of New York,
without regard to rules relating to conflict of laws. Any claims
regarding this Amendment or the Employment Agreement, or alleged
breach thereof, shall be brought exclusively in the State or Federal
courts within the State of New York, with the Parties consenting to
personal jurisdiction within the State of New York.
IN WITNESS WHEREOF, the Company and the Executive have caused this
Agreement to be duly executed.
eXegenics, Inc. Xxxxx X. Xxxxx
By: Xxxx X. Xxxxxxxxx Signature: /s/ Xxxxx X. Xxxxx
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Signature: /s/Xxxx X. Xxxxxxxxx Date: March 30, 2004
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Date: March 30, 2004
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