EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement"), effective as of
June 1, 1997, by and between IgX Limited, a company incorporated under the laws
of Ireland, (the "Company"), and Xxxxxxx X. Xxxxx, an individual (the
"Executive"), with reference to the following facts;
A. Company is engaged in the business of developing and marketing
IGX-CPL3 and other drug products.
B. Company desires to retain the services of Executive, and Executive
is willing to provide such services to Company; and
C. Company and Executive desire to enter into an agreement to provide
for Executive's employment by the Company upon the terms and conditions set
forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing facts and mutual
agreements set forth below, the parties, intending to be legally bound, agree as
follows;
1. Employment. The Company hereby agrees to employ Executive, and
Executive hereby accepts such employment and agrees to perform Executive's
duties and responsibilities in accordance with the terms and conditions
hereinafter set forth.
1.1 Duties and Responsibilities. Executive shall serve as Executive
Vice President, Business Development and Marketing. During the Employment Term,
Executive shall perform all duties and accept all responsibilities incident to
such positions and other appropriate duties as may be assigned to Executive by
the Company's Board of Directors (the "Board") from time to time.
1.2 Employment Term. The term of Executive's employment under this
Agreement shall commence as of the date hereof (the "Effective Date") and shall
continue for two (2) years until May 31, 1999, unless earlier terminated in
accordance with Section 4 hereof. The term of Executive's employment may be
extended by mutual written agreement entered into at least sixty (60) days prior
to the expiration of the then-effective "Employment Term" as that term is
defined below. The period commencing as of the Effective Date and ending two (2)
years
thereafter, or such later date to which the term of Executive's employment under
the Agreement shall have been extended by mutual written Agreement, is referred
to herein as the "Employment Term."
1.3 Extent of Service. During the Employment Term, Executive agrees
to use Executive's best efforts to carry out the duties and responsibilities
under Section 1.1 hereof and to devote substantially all Executive's business
time, attention and energy thereto. Executive further agrees not to work either
on a part-time or independent contracting basis for any other business or
enterprise during the Employment Term without the prior written consent of the
Board, which consent shall not be unreasonably withheld.
1.4 Base Salary. The Company shall pay Executive a base salary (the
"Base Salary") at the annual rate of $160,000 (U.S. Dollars), payable at such
times as the Company customarily pays its other senior level executives (but in
any event no less often than monthly). The Base Salary shall be subject to all
state, federal, and local payroll tax withholding and any other withholdings
required by law. The Company will make an interest-free loan of $40,000 to
Executive, which is considered earned by Executive at the rate of $10,000 per
year. Therefore, after year one, principal amount of loan outstanding is
$30,000; after year two, principal amount outstanding $20,000; after year three
principal amount outstanding $10,000 with zero principal balance after four
years of employement. If Executive does not continue as an employee for four
years, outstanding principal balance is payable to Company at the time Executive
terminates employment.
1.5 Incentive Compensation. Executive shall be eligible to earn a
cash bonus of up to fifty percent (50%) of base salary, or $80,000 (U.S.
Dollars), for each twelve-month period during the Employment Term based on
meeting performance objectives and bonus criteria to be mutually identified by
Executive and the Board. Executive's bonus shall be evaluated and payable based
upon accomplishing the agreed-upon objectives in six-month intervals throughout
the Employment Term commencing on June 1, 1997 and each six-month period
thereafter. Executive's bonus, if any, shall be subject to all applicable tax
and payroll withholdings. If Executive earns the full bonus, Executive's total
compensation will be $240,000 (U.S. Dollars) per annum.
1.6 Other Benefits. During the Employment Term, Executive and his
spouse and children shall be entitled to participate in all employee benefit
plans and programs made available to the Company's senior level executives as a
group or to its employees generally, as such plans or programs may be in effect
from time to time, which presently include medical, dental and hospitalization.
Executive shall also be entitled to use one (1) Company vehicle, an Oldsmobile
Aurora. Company shall reimburse Executive for all business-related operating
expenses for such vehicle, including maintenance and fuel expenses. Executive
shall be provided office space and staff assistance appropriate for Executive's
position and adequate for the performance of his duties.
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1.7 The Company will seek disability insurance for Executive.
1.8 The Company will lease an Oldsmobile Aurora for Executive use.
1.9 It is contemplated that Executive will relocate to Nashville,
Tennessee, USA, sometime in 1998. The Company will pay out-of-pocket moving
expenses plus one/half of brokerage commission incurred to sell Executive's
residence in New Jersey.
1.10 Reimbursement of Expenses; Vacation. Executive shall be
provided with reimbursement of expenses related to Executive's employment by the
Company on a basis no less favorable than that which may be authorized from time
to time by the Board, in its sole discretion, for senior level executives as a
group. Executive shall be entitled to vacation and holidays in accordance with
the Company's normal personnel policies for senior level executives.
1.11 Share Options. Executive shall be entitled to receive an option
under the Company's 1996 Stock Option Plan to purchase up to 125,000 of the
Company's Ordinary Shares at an exercise price of $5.00 (U.S.) per share (the
"Option"). The Option will be issued pursuant to the terms of that certain Share
Option Agreement in the form attached hereto as Exhibit "A" and incorporated
herein by this reference. The Option shall vest over a four (4) year period
commencing on the Effective Date and shall have a ten (10) year term. If, and
only if, the Employment Term is extended past the initial two (2) year period,
the Company agrees to consider granting to Executive additional options to
purchase up to a maximum of 100,000 of the Company's Ordinary Shares at an
exercise price of $5.00 (U.S.) per share, which additional options shall also
vest over a four (4) year period commencing with the date of grant.
1.12 No Other Compensation. Except as expressly provided in Sections
1.4 through 1.12, Executive shall not be entitled to any other compensation or
benefits.
2. Confidential Information. Executive recognizes and acknowledges that
by reason of Executive's employment by and service to the Company before, during
and, if applicable, after the Employment Term, Executive will have access to
certain confidential and proprietary information relating to the Company's
business, which may include, but is not limited to, trade secrets, trade
"know-how," product development techniques and plans, formulas, customer lists
and addresses, funding programs, cost and pricing information, marketing and
sales techniques, strategy and programs, computer programs and software and
financial information (collectively referred to as "Confidential Information").
Executive acknowledges that such Confidential Information is a valuable and
unique asset of the Company, and Executive covenants that he will not, unless
expressly authorized in writing by the Company, at any time during the course of
Executive's employment use any Confidential Information or divulge or disclose
any Confidential Information to any person, firm or corporation except in
connection with the performance of Executive's duties for the Company and in a
manner consistent with the Company's policies regarding Confidential
Information. Executive also covenants that at any
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time after the termination of such employment, directly or indirectly, he will
not use any Confidential Information or divulge or disclose any Confidential
Information to any person, firm or corporation, unless such information is in
the public domain through no fault of Executive or except 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. All written Confidential
Information (including, without limitation, in any computer or other electronic
format) which comes into Executive's possession during the course of Executive's
employment shall remain the property of the Company. Except as required in the
performance of Executive's duties for the Company, or unless expressly
authorized in writing by the Company, Executive shall not remove any written
Confidential Information from the Company's premises, except in connection with
the performance of Executive's duties for the Company and in a manner consistent
with the Company's policies regarding Confidential Information. Upon termination
of Executive's employment, the Executive agrees to return immediately to the
company all written Confidential Information (including, without limitation, in
any computer or other electronic format) in Executive's possession.
3. Non-Competition; Non-Solicitation.
3.1 Non-Compete. The Executive hereby covenants and agrees that
during the term of this Agreement, the Executive will not, without the prior
written consent of the Company, directly or indirectly, on his own behalf or in
the service or on behalf of others, whether or not for compensation, engage in
any business activity, or have any interest in any person, firm, corporation or
business, through a subsidiary or parent entity or other entity (whether as a
shareholder, agent, joint venturer, security holder, trustee, partner,
consultant, creditor lending credit or money for the purpose of establishing or
operating any such business, partner or otherwise) which is competitive with the
then existing business of Company being conducted in the Covered Area, as
defined hereinbelow. For the purpose of this Section 3.1, "Covered Area" shall
mean all geographical areas of the United States, Ireland and other foreign
jurisdictions where Company then has offices and/or sells its products directly
or indirectly through distributors and/or other sales agents. Notwithstanding
the foregoing, the Executive may own shares of companies whose securities are
publicly traded, so long as such securities do not constitute more than one
percent (1%) of the outstanding securities of any such company.
3.2 Non-Solicitation. The Executive further agrees that as long as
the Agreement remains in effect and for a period of one (1) year from its
termination, the Executive will not divert any business of the Company and/or
its affiliates or any customers or suppliers of the Company and/or the Company's
and/or its affiliates' business to any other person, entity or competitor, or
induce or attempt to induce, directly or indirectly, any person to leave his or
her employment with the Company.
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4. Termination
4.1 By Company. The Company may, in its discretion and at its
option, terminate the Executive's employment with or without Cause, and without
prejudice to any other right or remedy to which the Company may be entitled at
law or in equity or under this Agreement. The Executive shall be deemed
terminated for "Cause" (i) if Executive is convicted of a felony; (ii) any
neglect or breach of duty by Executive, or any failure by executive to perform
to the reasonable satisfaction of the Board, such duties as may be delegated to
Executive from time to time; (iii) Executive otherwise materially breaches any
provision of this Agreement; or (iv) after a determination by a majority of the
Board of Directors of the Company, acting in good faith, that the Executive has
engaged in conduct not appropriate of an employee. In the event the Company
desires to terminate the Executive's employment without Cause, the Company shall
give the Executive not less than sixty (60) days' advance written notice.
4.2 By Executive's Death or Disability. This Agreement shall also be
terminated upon the Executive's death and/or a finding of permanent physical or
mental disability, such disability to be determined by in the sole discretion of
a physician selected by the Company.
4.3 Compensation on Termination. In the event the Company terminates
Executive's employment for Cause, all payments under this Agreement shall cease,
except for Base Salary to the extent already accrued. In the event of
termination by reason of Executive's death and/or permanent disability,
Executive or his executors, legal representatives or administrators, as
applicable, shall be entitled to an amount equal to Executive's Base Salary
accrued through the date of termination, plus a pro rata share of any annual
bonus to which Executive would otherwise be entitled for the year in which death
or permanent disability occurs. Upon termination of Executive without cause, if
Executive executes a written release, substantially in the form attached hereto
as Exhibit "B" (the "Release"), of any and all claims against the Company and
all related parties with respect to all matters arising out of Executive's
employment by the Company (other than Executive's entitlement under any employee
benefit plan or program sponsored by the Company in which Executive participated
and under which Executive has accrued a benefit), and the termination thereof,
Executive shall be entitled to receive, in equal monthly installments, as
liquidated damages for the failure of the Company to continue to employ
Executive, an amount equal to the amount of Executive's Base Salary for the
remainder of the initial two (2) year Employment Term, provided that Executive
remains in compliance with the provisions of Section 3 hereof.
4.4 Voluntary Termination. Executive may voluntarily terminate the
Employment Term upon sixty (60) days' prior written notice for any reason;
provided, however, that no further payments shall be due under this Agreement in
that event except that Executive shall be entitled to any benefits due under any
compensation or benefit plan provided by the Company for executives or otherwise
outside of this Agreement.
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5. Controversies. Any controversy or claim arising out of or relating
to the Executive's employment and this Agreement, the breach hereof, or the
coverage of this arbitration provision, shall be settled by arbitration in
California, which arbitration shall be in accordance with the Commercial
Arbitration Rules of the American Arbitration Association, as such rules shall
be in effect on the date of delivery of demand for arbitration. The arbitration
of such issues, including the determination of the amount of any damages
suffered by any party, shall be to the exclusion of any court of law. The
decision of the arbitrators or a majority of them shall be final and binding
upon the parties and the personal representatives, heirs or devises of the
Executive, if applicable. There shall be three arbitrators, one (1) to be chosen
directly by the Executive, one (1) to be chosen by the Company and one (1) to be
chosen by the two (2) arbitrators so chosen. The Company and the Executive shall
each pay the fees of the arbitrators selected by it or him and of its or his own
attorneys, the expense of witnesses and all other expenses connected with the
presentation of such party's case, except that the arbitrators may impose all
such fees, costs and expenses otherwise payable by the prevailing party on the
losing party if it determines that the losing party's position was taken without
good faith or solely for the purpose of delay. The costs of the arbitration
including the cost of the record of transcripts thereof, if any, administrative
fees, and all other fees and costs, including those of the third arbitrator,
shall be borne one-half by the Executive and one-half by the Company, except
that the arbitrators may impose all such fees, costs and expenses otherwise
payable by the prevailing party on the losing party if it determines that the
losing party's position was taken without good faith or solely for the purpose
of delay.
6. General Provisions.
6.1 Modification; No Waiver. No modification, amendment or discharge
of this Agreement shall be valid unless the same is in writing and signed by all
parties hereto. Failure of any party at any time to enforce any provisions of
this Agreement or any rights or to exercise any election shall in no way be
considered to be a waiver of such provisions, rights or elections and shall in
no way affect the validity of this Agreement. The exercise by any party of any
of its rights or any of its elections under this Agreement shall not preclude or
prejudice such party from exercising the same or any other right it may have
under this Agreement irrespective of any previous action taken.
6.2 Notices. All notices and other communications required or
permitted hereunder or necessary or convenient in connection herewith shall be
in writing and shall be deemed to have been given when hand delivered or mailed
by registered or certified mail as follows (provided that notice of change of
address shall be deemed given only when received):
If to the Company, to: Xxxxxx X. Xxxxx, Chairman
IgX Ltd.
Granard
County Longford
Ireland
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If to Executive, to:
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or to such other names or addresses as the Company or Executive, as the case may
be, shall designate by notice to each other person entitled to receive notices
in the manner specified in this Section.
6.3 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of California.
6.4 Further Assurances. Each party to this Agreement shall execute
all instruments and documents and take all actions as may be reasonably required
to effectuate this Agreement.
6.5 Severability. Should any one or more of the provisions of this
Agreement or of any agreement entered into pursuant to this Agreement be
determined to be illegal or unenforceable, then such illegal or unenforceable
provision shall be modified by the proper court or arbitrator to the extent
necessary and possible to make such provision enforceable, and such modified
provision and all other provisions of this Agreement and of each other agreement
entered into pursuant to this Agreement shall be given effect separately from
the provision or portion thereof determined to be illegal or unenforceable and
shall not be affected thereby.
6.6 Successors and Assigns. Executive may not assign this Agreement
without the prior written consent of the Company. The Company may assign its
rights without the written consent of the Executive, so long as the Company or
its assignee complies with the other material terms of this Agreement. The
rights and obligations of the Company under this Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns of the
Company, and the Executive's rights under this Agreement shall inure to the
benefit of and be binding upon his heirs and executors. The Company's
subsidiaries and controlled affiliates shall be express third party
beneficiaries of this Agreement.
6.7 Entire Agreement. This Agreement supersedes all prior agreements
and understandings between the parties, oral or written. No modification,
termination or attempted waiver shall be valid unless in writing, signed by the
party against whom such modification, termination or waiver is sought to be
enforced.
6.8 Choice of Law. This Agreement shall be governed by and
interpreted and constructed in accordance with the internal laws of Ireland,
without regard to principles of conflict of laws, and shall be binding upon the
parties hereto in the United States and worldwide.
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6.9 Counterparts: Facsimile. This Agreement may be executed in one
or more counterparts, each of which shall for all purposes be deemed to be an
original, and all of which taken together shall constitute one and the same
instrument. This Agreement may be executed by facsimile with original signatures
to follow.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound,
have executed this Agreement as of the date first written above.
IgX LIMITED, a company incorporated under the
laws of Ireland
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By:
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Title:
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Xxxxxxx X. Xxxxx
[SIGNATURE PAGE TO EXECUTIVE EMPLOYMENT AGREEMENT]
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EXHIBIT "A"
SHARE OPTION AGREEMENT
A-1
EXHIBIT "B"
IgX LIMITED
RELEASE AGREEMENT
[DATE]
Xx. Xxxxxxx X. Xxxxx
[ADDRESS]
Dear Xx. Xxxxx:
This Release Agreement sets forth the offer by IgX Limited ("the
Company") of special severance benefits in exchange for the consideration
described below. The terms of our offer, which will constitute an agreement upon
your acceptance pursuant to the provisions hereof, are as follows:
1. Your employment [will terminate/had terminated] as of [date] (the
"Severance Date").
2. You acknowledge that prior to the Severance Date, the Company had
no obligation to provide you with the severance benefits set
forth in Section 5.3 of your Employment Agreement dated as of
June 1, 1997. However, as consideration for your agreement to the
release and covenant not to xxx and the other conditions set
forth in this letter, the Company will pay you the severance in
accordance with the terms of the Employment Agreement.
3. You acknowledge receipt of all vacation earned by you up to and
including the Severance Date. Your accrual of vacation ceased
effective on the Severance Date.
4. You represent and warrant that by the close of business on the
date you execute this Release Agreement, you will return to the
Company all property owned by the Company, including all credit
cards furnished to you by the Company and all originals and
copies of the following, whether in your possession or previously
removed by you from the Company's premises and still existing,
and whether recorded on paper, computer disk, other
computer-readable form or any other medium: all lists,
correspondence, books, letters, records, financial data and other
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materials and writings owned by the Company or used by it in
connection with the conduct of its business.
You will respond to inquiries by the Company about any matters
concerning the Company or its affairs that occurred or arose
during the period of your employment by the Company; and you will
cooperate with the Company in investigating, prosecuting and
defending any charges, claims, demands, liabilities, causes of
action, lawsuits and other proceedings by, against or involving
the Company relating to any period during which you were employed
by the Company or relating to matters of which you have knowledge
or should have knowledge by virtue of your employment by the
Company, all for no additional compensation; provided that
complying with this paragraph does not require you to travel more
than 100 miles from your residence or office at the time of
compliance (whichever is more distant), does not require you to
devote more than eight (8) consecutive hours or twenty-four (24)
hours in a calendar month, and does not cause your employment at
the time of compliance to be placed in jeopardy. If compliance
with this paragraph requires you to travel outside the area
described in the preceding sentence or devote more time than set
forth in the preceding sentence, the Company will compensate you
for all such time and travel at an hourly rate of $100. The
Company will reimburse you for all reasonable expenses you incur
in complying with this paragraph in accordance with the Company's
employee business expense approval procedures then in effect.
5. You represent and warrant that you have disclosed to the Company
all contracts, understandings, agreements, proposals, offers and
bids to which the Company may be a party or by which it may be
bound or affected or which have been made for the benefit of the
Company or which may have obligated the Company in any way,
whether oral or written, including, without limitation,
employment agreements, of which you have knowledge.
6. As consideration for the payments and agreements described above,
you hereby release, agree not to xxx, and agree not to bring suit
with or on behalf of another against, the Company and its
predecessor, subsidiary, affiliate and successor corporations and
business entities, past, present and future, and their directors,
officers, shareholders, employees, executives and agents, past,
present and future, and their heirs, executors, administrators
and assigns, with respect to any and all claims, demands,
liabilities, actions, causes of action, suits, debts, charges,
complaints, obligations, promises, agreements, controversies,
damages and expenses (including attorneys' fees and costs
actually incurred) arising out of facts which occurred prior to
the execution of this Release Agreement, including but not
limited to any claims arising from or in connection with your
employment
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relationship with the Company or the severance of that
relationship and including claims arising from any alleged
violation of any federal, state or local statutes, ordinances or
common law (including but not limited to Title VII of the Civil
Rights Act of 1964, as amended, the Age Discrimination in
Employment Act, the Americans with Disabilities Act, the
California Fair Employment and Housing Act, and the California
Labor Code). This release and waiver includes, among others,
claims based on age discrimination in violation of the federal
Age Discrimination in Employment Act ("ADEA") and applicable
state law. Such laws prohibit an employer from taking adverse
action against an employee, including terminating employment, on
the basis of the employee's age of 40 or more. By agreeing to the
release and waiver in this paragraph, you are agreeing to forego
any claim and agreeing not to xxx on the ground, among others,
that the termination of your employment by the Company violated
the ADEA. In the event you, or any person, firm or entity on your
behalf, files, sues or causes or permits to be filed any action
seeking damages, injunctive, declaratory, monetary or other
relief, despite your agreement not to do so thereunder, you agree
to pay to the Company, regardless of the outcome of such action,
as liquidated damages: (i) all of the Company's legal fees and
expenses in defending such action and (ii) one-half (1/2) of all
severance payments made to you pursuant to Section 5.4(b) of your
Employment Agreement.
7. For the purposes of implementing a full and complete release and
discharge of claims, you expressly acknowledge that this Release
Agreement is intended to include in its effect, without
limitation, all the claims described in the preceding paragraphs,
whether known or unknown, suspected or unsuspected, and that this
Agreement contemplates the extinction of all such claims,
including claims for attorneys' fees. You expressly waive any
right to assert after the execution of this Agreement that any
such claim, demand, obligation or cause of action has, through
ignorance or oversight, been omitted from the scope of the
Agreement. You expressly waive any and all rights and benefits
conferred upon you by the provisions of Section 1542 of the Civil
Code of California which provides as follows:
A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially
affected his settlement with the debtor.
8. You will not disclose to any person, including, but not limited
to, any former, current or prospective employee of the Company,
its affiliates and its subsidiaries, the fact that this offer has
been made or the existence or terms of the Agreement;
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provided, however, that you may discuss and disclose this offer
to your attorney, your spouse and your financial adviser; and you
may disclose such aspects of the Agreement as may be required to
be disclosed by court order, by the proper inquiry of a State or
Federal governmental agency or by a subpoena to testify issued by
a court of competent jurisdiction, in any of which events, you
agree to respond truthfully to all questions asked of you. If you
breach this covenant, you agree to repay to the Company all
monies paid to you pursuant to Paragraph 2 of this Agreement and
any and all attorneys' fees incurred by the Company to collect
such payment.
9. Neither the fact that this offer was made or Agreement entered,
nor any provision of this Agreement, shall be construed as an
admission of any wrongdoing of any kind by the Company.
10. Any notice required or permitted to be given under this Agreement
shall be in writing and given by hand delivery or by certified or
registered United States mail, postage prepaid, and shall be
effective on the date delivered by hand or mailed, in the case of
the Company, to its usual business address from time to time and,
in your case, to your most recent home address as shown on the
records of the Company.
11. If any provision of this Agreement is declared or determined by
any court to be illegal or invalid, validity of the remaining
parts, terms or provisions shall not be affected thereby and said
illegal or invalid part, term or provision shall be deemed not to
be a part of this Agreement.
12. This Agreement sets forth the entire agreement between the
parties hereto and fully supersedes any and all prior agreements
or understandings between the parties hereto pertaining to the
subject matter hereof.
13.
You may accept this offer by signing it below no later than
_________ (__) days from the day you receive it and returning the
signed and dated acceptance for my receipt no later than
____________ (__) days from the date that you receive this offer.
Your acceptance is to be sent in an envelope marked "CONFIDENTIAL
- TO BE OPENED BY ADDRESSEE ONLY" and addressed to me at the
above address.
14. You may revoke your acceptance of this offer within _______ (__)
days after the date on which you signed this letter to accept the
offer. To be effective, your revocation must be in writing,
signed and dated no later than _____ (__) days from the date on
which you signed and dated your acceptance of this
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offer; and the written revocation must be received by me in an
envelope addressed in the manner described in the last paragraph
above no later than _____ (__) days after the date on which you
signed the revocation.
You should consult with an attorney before entering into this
Agreement.
Sincerely,
IgX LIMITED
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By:
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Title:
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The undersigned hereby agrees to the terms of this Release and such
release shall be binding upon the undersigned.
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Xxxxxxx X. Xxxxx
Date:
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