1
Exhibit 10.70
GENTA INCORPORATED
00 XXXXXX XXXXXX, XXXXX 000
XXXXXXXXX, XXXXXXXXXXXXX 00000
Dated as of October 28, 1999
Xxxxxxx X. Xxxxxxx, Xx., MD.
0 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Dear Xx. Xxxxxxx:
We are pleased that you are interested in becoming an employee
of Genta Incorporated, a Delaware corporation (the "Company"). Accordingly, I
would like to offer you the following terms of engagement (the "Agreement"):
1. Employment; Duties.
(a) As of October 28, 1999, the Company hereby engages and
employs you, and you hereby accept engagement and employment, as an employee of
the Company. Commencing on December 1, 1999, the Company will engage and employ
you, and you hereby accept engagement and employment, as Chief Executive Officer
and President of the Company.
(b) You shall perform your duties as are customarily
associated with your title, consistent with the By-laws of the Company and as
required by the Board of Directors of the Company (the "Board of Directors").
You shall perform your duties hereunder at such places as shall be necessary
according to the needs, business or opportunities of the Company; provided, that
you acknowledge and agree that the performance of the duties hereunder may
require significant domestic and international travel by you.
(c) Upon commencement of your employment as President and
Chief Executive Officer, you shall devote your full business time and best
efforts as shall be necessary to the proper discharge of your duties and
responsibilities under this Agreement. You shall not, directly or indirectly, on
a full time, part time, temporary, consulting, or any other basis, work for or
provide your services to any other person, firm, corporation, partnership, joint
venture or any other entity, except that you may engage in up to eight hours a
week of other activities, provided that such other activities are consistent in
all respects with your obligations under sections 5, 6, 7 and 8 of this
Agreement. However, notwithstanding anything else contained in this Agreement,
you shall not engage in any other business activities, whether or not pursued
for gain or profit, which will interfere with your ability to perform any of the
functions, powers or duties required under this Agreement.
2
2. Term. Your employment hereunder shall be for a term of
three years commencing on October 28, 1999 (the "Effective Date") and continuing
through November 30, 1999 (the "Term"), unless sooner terminated as hereinafter
provided.
3. Compensation and Benefits.
(a) In consideration of the services you rendered as an
employee of the Company for the period beginning on the Effective Date and
ending upon commencement of your employment as Chief Executive Officer and
President on December 1 1999, you will be paid $15,000, less all applicable
federal state and local taxes, social security and worker's compensation
contributions and such other amounts as may be required by law.
(b) As compensation and benefits for the performance of your
duties on behalf of the Company as Chief Executive Officer and President, so
long as your employment has not been terminated in accordance with this
Agreement, you shall be compensated and shall receive benefits upon commencement
of your employment as President and Chief Executive Officer, as follows:
(i) a base salary of $325,000 per annum (the "Base
Salary"), payable in accordance with the Company's
standard payroll practice;
(ii) in consideration of your entry into this Agreement,
you will receive $100,000, which is payable within 30
days from the date this Agreement is executed or
later at your discretion;
(iii) a guaranteed bonus of $100,000 at the end of your
first twelve months of employment;
(iv) a provisional bonus of at least $100,000 at the end
of each subsequent twelve months of employment
provided that mutually agreed upon milestones have
been met.
The Company shall withhold all applicable federal, state and
local taxes, social security and workers' compensation contributions and such
other amounts as may be required by law or agreed upon by the parties with
respect to the compensation payable to you pursuant to this Section 3(a).
(c) Subject to subsection 3(n), you shall be entitled to
receive annual stock options for the purchase of 300,000 shares of Common Stock,
adjusted for stock splits, reverse stock splits, and stock reclassifications,
(at an exercise price equal to Fair Market Value, as defined in the Genta
Incorporated 1998 Stock Incentive Plan, on the date of grant, or, in the event
of a Trigger Event, calculated as provided below) provided that mutually agreed
upon milestones have been met. All stock options granted pursuant to this
subsection 3(c) (the "3(c) Options") shall be evidenced by a stock option
agreement, which shall contain customary terms and shall provide for immediate
vesting upon the occurrence of one of the events (each a "Trigger Event")
described in Section 4.1 of the Stock Option Agreement (as defined below). In
addition, if a Trigger Event occurs, whether or not your employment has been
terminated pursuant to clause 4.1(ii) of the Stock Option
- 2 -
3
Agreement, you shall be entitled to receive all Section 3(c) Options which you
would have been entitled to receive within twelve months following such Trigger
Event, provided that the relevant milestones have been met during such twelve
month period. The Company shall grant such options to you as soon as practicable
after you become entitled to receive them. Such options shall have an exercise
price equal to the average closing price of the Company's Common Stock for the
60 consecutive calendar days prior to the occurrence of the Trigger Event and
shall vest and be fully exercisable upon grant.
(d) In addition, from time to time, in the discretion of the
Board of Directors, you may be entitled to additional stock options pursuant to
the Company's stock option plans.
(e) The Company agrees to reimburse you for all reasonable and
necessary travel, business entertainment and other business expenses incurred by
you in connection with the performance of your duties under this Agreement. Such
reimbursements shall be made by the Company on a timely basis upon submission by
you of vouchers in accordance with the Company's standard procedures.
(f) You shall be entitled during the Term to four weeks per
annum vacation time. You may "carry over" up to four weeks of unused vacation
time to the succeeding year.
(g) The Company shall pay the premiums on an ordinary life
insurance policy on your behalf in the principal amount of not less than
$3,250,000, provided such premiums do not exceed $20,000 annually.
(h) You shall be entitled to participate in any and all
medical insurance, dental insurance, group health, disability insurance and
other benefit plans which are made generally available by the Company to its
senior executives. The Company, in its sole discretion, may at any time amend or
terminate any such benefit plans or programs.
(i) You shall be covered by the Company's director's and
officer's insurance policy as is generally provided to the Company's directors
and officers.
(j) The Company shall provide you with a car or car allowance
in an amount not to exceed $500 per month which shall be paid in appropriate pro
rata amounts at the same time Base Salary is paid unless the Company pays all
related expenses directly.
(k) The Company shall pay all of your reasonable relocation
expenses, provided that such expenses are incurred within 18 months from the
Effective Date of this Agreement.
(l) The Company shall pay attorney's fees incurred by you in
connection with this Agreement in an amount not to exceed $10,000.
(m) Subject to subsection 10(f) and Section 11, you must be an
employee of the Company at the time that any compensation is due in order to
receive such compensation.
- 3 -
4
(n) No option provided for under this Section 3 shall be
exercisable unless the Company's Amended and Restated Certificate of
Incorporation has been amended (the "Amendment") to increase the Company's
authorized capital stock by an amount sufficient to permit the issuance of
Common Stock issuable upon exercise or conversion of all options, warrants, and
convertible securities issued by the Company, including the shares and warrants
issuable in the Company's contemplated private placement and the options
provided for under this agreement. The Company shall use its best efforts,
subject to applicable law, to obtain shareholder approval of the Amendment;
provided, however, that nothing in this subsection 3(n) shall be interpreted so
as to require the Company pay a consent fee or hire third party proxy
solicitors.
(o) The Company shall pay the premiums on a medical
malpractice insurance policy on your behalf in the principal amount of not less
than $1,000,000, provided such premiums do not exceed $20,000 annually.
4. Representations and Warranties. You hereby represent and
warrant to the Company as follows:
(a) Neither the execution and delivery of this Agreement nor
the performance by you of your duties and other obligations hereunder violate or
will violate any statute, law, determination or award, or conflict with or
constitute a default under (whether immediately, upon the giving of notice or
lapse of time or both) any prior employment agreement, contract, or other
instrument to which you are a party or by which you are bound.
(b) You have the full right, power and legal capacity to
execute and deliver this Agreement and to perform your duties and other
obligations hereunder. This Agreement constitutes your legal, valid and binding
obligation, enforceable against you in accordance with its terms. No approvals
or consents of any persons or entities are required for you to execute and
deliver this Agreement or perform your duties and other obligations hereunder.
5. Non-competition and Non-solicitation.
(a) You understand and recognize that your services to the
Company are special and unique and agree that, upon commencement of your
employment as President and Chief Executive Officer on December 1, 1999, and,
except as provided below, for a period of two years following any termination of
your employment, you shall not in any manner directly or indirectly on behalf of
yourself or any person, firm, partnership, joint venture, corporation or other
business entity (collectively, "Person"), solicit, enter into, engage in any
business which is or proposes to be competitive with a technology or service of,
or product manufactured or distributed by, the Company or its subsidiaries or in
which the Company or any of its subsidiaries has intellectual property rights
(except as provided below, "Conflicting Field"), either as an individual for
your own account, or as a partner, joint venturer, executive, agent, consultant,
salesperson, officer, director or shareholder of such Person ("Competitor");
provided, however, that (x) following any termination of your employment,
Conflicting Field shall refer only to the field of using antisense technology as
therapy for cancer as its primary business and, subject to Section 1, nothing in
this agreement shall be interpreted so as to prevent you from accepting
employment with any Person which is or proposes to be competitive with a
Conflicting Field so long as you work solely in a division of such Person
- 4 -
5
which division carries on a bona fide business that is not or does not propose
to be competitive with a Conflicting Field ; and (y) nothing herein will
preclude you from holding five percent (5%) or less of the stock of any publicly
traded company, calculated on a fully diluted basis.
(b) In further consideration of the payment by the Company to
you of amounts that may hereafter be paid to you pursuant to this Agreement
(including, without limitation, pursuant to Sections 3 and 11 hereof, and the
Stock Option Agreement between you and the Company dated October 28, 1999 (the
"Stock Option Agreement")), you agree that upon commencement of your employment
as President and Chief Executive Officer, and for a period of two years
thereafter or a period of two years subsequent to any termination hereunder, but
subject to section 5(f), you shall not, without the prior written consent of the
Company:
(i) directly or indirectly take any action, or attempt to
take any action, which is intended to, or could
reasonably be foreseen by you to, induce a material
breach of a contract or agreement known to you
between the Company and any of its licensors,
licensees, clients, customers, vendors, suppliers,
agents, consultants, employees (whether or not such
employees are "at will" employees) or other person or
entity with which the Company has an agreement (each,
a "Covered Party", collectively, "Covered Parties");
provided, however, that such action or attempted
action could reasonably be expected to cause a
material detriment to the Company; or
(ii) directly or indirectly solicit or attempt to solicit
any of the Covered Parties to terminate his, her or
its relationship with the Company in material breach
of a contract or agreement with the Company known to
you; provided, however, that such action or attempted
action is likely to cause a material detriment to the
Company; or
(iii) subject to subsection 5(f), directly or indirectly
solicit or attempt to solicit any of the employees or
consultants of the Company to become employees,
agents, consultants, representatives or advisors of
any other Person; or
(iv) directly or indirectly persuade or seek to persuade
any customer of or supplier to the Company to cease
to do business or to reduce the amount of business
which any customer or supplier has done or
contemplates doing with the Company, whether or not
the relationship between the Company and such Person
was originally established in whole or in part
through your efforts, in material breach of a
contract or agreement known to you between the
Company and such customer or supplier; provided,
however, that such action or attempted action could
reasonably be expected to cause a material detriment
to the Company.
(c) Upon commencement of your employment as President and
Chief Executive Officer, and for a period of two years following any termination
of your employment, you agree that upon the earlier of you (a) negotiating with
any Competitor concerning the possible employment of you by the Competitor, (b)
receiving an offer of employment from a Competitor, or (c) becoming
- 5 -
6
employed by a Competitor, you will (x) immediately provide notice to the Company
of such circumstances and (y) provide copies of Sections 5, 6, 7, 8 and 9 of
this Agreement to the Competitor. You further agree that the Company may provide
notice to a Competitor of your obligations under this Agreement, including
without limitation your obligations pursuant to Sections 5, 6, 7 and 8 hereof.
(d) You understand that the provisions of this Section 5 may
limit your ability to earn a livelihood in a business similar to the business of
the Company but nevertheless agree and hereby acknowledge that the consideration
provided under this Agreement, including any compensation or benefits provided
under Sections 3 and 11 hereof and the Stock Option Agreement, is sufficient to
justify the restrictions contained in such provisions. In consideration thereof
and in light of your education, skills and abilities, you agree that you will
not assert in any forum that such provisions prevent you from earning a living
or otherwise are void or unenforceable or should be held void or unenforceable.
(e) Section 5(a) hereof shall not apply to any Conflicting
Field that is identified on Annex I to this Agreement. Annex I to this Agreement
may hereafter be amended through a writing signed by you and the Company and
approved by the Company's Board of Directors.
(f) Nothing in subsection 5(b)(iii) shall be interpreted so as
to prohibit you from accepting offers from persons employed by the Company to be
employed by you or an entity with which you become associated, provided that
such offers were not solicited, directly or indirectly, or otherwise encouraged
by you.
6. Ownership of Proprietary Information.
(a) You confirm and agree that all information relating to the
Company's, or an Affiliate's (as defined below) business that has been created
by, discovered by, developed by, learned by, or made known to, the Company, or
any of its subsidiaries, affiliates, licensors, licensees, successors or assigns
(each, an "Affiliate" and, collectively, the "Affiliates") from the commencement
of your employment and at all times thereafter (including, without limitation,
information relating to the Company's business created by, discovered by,
developed by, learned by, reduced to practice by or made known to the Company,
an Affiliate, or you, either alone or jointly with others, during your
employment and information relating to the Company's customers, clients,
suppliers, vendors, consultants, licensors and licensees) or assigned, licensed
or otherwise conveyed to the Company or any Affiliate, has been, is and shall be
the sole property of the Company or such Affiliate, as applicable, and the
Company or the Affiliate, as the case may be, has been, is and shall be the sole
owner of all designs, ideas, patents, patent applications, copyrights, copyright
applications and other rights in connection therewith, including but not limited
to the right to make application for statutory protection of any kind in any
country. All of the aforementioned information is hereinafter called
"Proprietary Information" (and shall be deemed Proprietary Information
regardless of whether or not the Proprietary Information is patentable or
copyrightable). By way of illustration, but not limitation, Proprietary
Information includes trade secrets, processes, discoveries, structures, works of
authorship, copyrightable works, trademarks, copyrights, formulas, data, data
structures, know-how, show-how, improvements, information relating to products
(both
- 6 -
7
current and under development), services and technologies, product concepts,
specifications, techniques, information or statistics contained in, or relating
to, promotion or marketing plans and programs, strategies, forecasts,
blueprints, sketches, records, notes, devices, drawings, customer lists,
continuation applications of any kind, trademark applications and information
about the Company's or the Affiliate's employees and/or consultants and
confidential business information of the Company or any Affiliate or any of its
or their clients, consultants, suppliers, customers, vendors, licensors,
licensees and other third parties (including, without limitation, the
compensation, job responsibility and job performance of such employees and/or
consultants).
(b) You agree that all Proprietary Information shall be, the
extent permitted by law, "works made for hire" as that term is defined in the
United States Copyright Act (17 USA, Section 101). You hereby assign to the
Company all right, title and interest you may have or acquire in all Proprietary
Information; provided, that, subject to subsection 6(d) hereof, the provisions
of this Section 6 only applies to information, and Proprietary Information shall
only include such information which:
(i) relate at the time of conception or reduction to
practice of the invention to the Company's business,
or actual or demonstrably anticipated research or
development of the Company except when the
information more closely relates to the business, or
actual or demonstrably anticipated research or
development of a person or entity listed in Annex I
hereto, as amended; or
(ii) result from any work performed by you for the
Company; or
(iii) was developed on the Company's time or using the
Company's equipment, supplies, facilities, or trade
secret information.
(c) Notwithstanding the foregoing, Proprietary Information
shall not include; (i) information (x) in the public domain not as a result of
the breach of this Agreement or the breach of any other duty owed to the Company
or any other person (y) information lawfully in your possession prior to the
date hereof and not disclosed to you by the Company or an Affiliate and (z)
information disclosed to you without restriction by a third party who had the
right to disclose such information to you; and (ii) information that more
closely relates to the business, or actual or demonstrably anticipated research
or development, of a person or entity set forth on Annex I.
(d) It is understood that no patent, copyright, trademark, or
other proprietary right of license is granted to you under this Agreement. Any
disclosure of Proprietary Information and any materials which may accompany any
such disclosure pursuant to your employment under this Agreement shall not
result in the grant to you of any rights, express or implied, of any kind.
7. Confidential Information.
(a) You agree at all times, including after the Term, to keep
in strictest trust and confidence and will not disclose or make accessible to
any other person without the prior written consent of the Company, the Company's
or any Affiliate's Proprietary Information. You further
- 7 -
8
agree that upon commencement of your employment and at all times thereafter (i)
not to use any such Proprietary Information for yourself or others; and (ii) not
to take any such material or reproductions embodying Proprietary Information
from the Company's facilities (or any of the Affiliates' facilities) at any
time, except as required during the Term in connection with your duties to the
Company.
(b) Except with prior written authorization of the Board of
Directors, you agree not to disclose or publish any of the Proprietary
Information, except as required in the performance of your obligations under
this Agreement. You further agree not to disclose or publish information
relating to your former employers, to whom you, the Company or any of its
Affiliates owes an obligation of confidence, at the time of disclosure to you,
at any time during or after your employment with the Company.
(c) Upon written notice by the Company, you shall promptly
deliver to the Company, or, if requested by the Company, promptly destroy all
written Proprietary Information and any other written material containing any
Proprietary Information (whether prepared by the Company, you or a third party),
and will not retain any copies, extracts, summaries or other reproductions in
whole or in part of such written Proprietary Information or other material.
(d) You recognize that the Company has received and in the
future will receive confidential or proprietary information from third parties
subject to a duty on the Company's part to maintain the confidentiality of such
information and, in some cases, to use it only for certain limited purposes. You
agree that you owe the Company and such third parties, both during your
employment and thereafter, a duty to hold all such confidential or proprietary
information in the strictest confidence and not to disclose it to any Person
(except in a manner that is consistent with the Company's agreement with the
third party) or use it for the benefit of anyone other than the Company or such
third party (consistent with the Company's agreement with the third party),
unless expressly authorized to act otherwise by the Board of Directors.
(e) If during the term and thereafter you are requested or
required (by oral questions, deposition, interrogatories, requests for
information or documents, subpoena, civil investigative demand or any other
process) to disclose all or any part of any Confidential Information, you will
provide the Company with prompt notice of such request or requirement, as well
as notice of the terms and circumstances surrounding such request or
requirement, so that the Company, or, as applicable, one or more of its
Affiliates, may seek an appropriate protective order or waive compliance with
the provisions of this Agreement. In such case, the parties will consult with
each other on the advisability of pursuing any such order or other legal action
or available steps to resist or narrow such request or requirement. If, failing
the entry of a protective order or the receipt of a waiver hereunder, you are,
in the opinion of your counsel, legally compelled to disclose Proprietary
Information, you may disclose that portion of such information which counsel
advises you that you are legally compelled to disclose. In any event, you will
use reasonable efforts to cooperate with the Company in obtaining and will not
oppose action by the Company (or, as applicable, one or more of its Affiliates)
to obtain, an appropriate protective order or other reliable assurance that
confidential treatment will be accorded the disclosure of any Proprietary
Information.
- 8 -
9
All reasonable expenses incurred by you in compliance with this subsection 7(e)
will be reimbursed by the Company.
8. Disclosure of Proprietary Information.
(a) During the Term, and thereafter, you agree that you will
promptly disclose to the Company, or any persons designated by the Company, all
Proprietary Information developed, created, made, conceived, reduced to practice
or learned by the Company, any Affiliate or you, either alone or jointly with
others, during the Term and not otherwise known to the Company's officers and
directors.
(b) You further agree to assist the Company in every proper
way (but at the Company's expense) to obtain and confirm and from time to time
enforce patents, copyrights or other rights on said Proprietary Information in
any and all countries, and to that end you will execute all documents necessary:
(i) to apply for, obtain and vest in the name of the
Company alone (unless the Company otherwise directs)
letters patent, copyrights or other analogous
protection in any country throughout the world and
when so obtained or vested to renew and restore the
same on behalf of the Company; and
(ii) to defend any opposition proceedings in respect of
such applications and any opposition proceedings or
petitions or applications for revocation of such
letters patent, copyright or other analogous
protection.
(c) Your obligation to assist the Company in obtaining and
enforcing patents and copyrights for the Proprietary Information in any and all
countries shall continue beyond the Term, but the Company agrees to compensate
you at a reasonable rate after the expiration of the Term for time actually
spent by you at the Company's request on such assistance.
9. Enforcement. You agree that the remedy at law for any
breach or threatened breach of any covenant contained in Sections 5, 6, 7 or 8
of this Agreement would be inadequate and cause irreparable damage to the
Company. In the event that you breach or threaten to breach any provisions of
Sections 5, 6, 7 or 8, in addition to any other rights which the Company may
have at law or in equity, the Company shall be entitled, without the posting of
a bond or other security, to injunctive relief to enforce the restrictions
contained in this Agreement. In the event that an actual proceeding is brought
in equity to enforce any of the provisions of Sections 5, 6, 7 or 8, you shall
not assert as a defense that there is an adequate remedy at law nor shall the
Company be prevented from seeking any other remedies, including without
limitation monetary damages, which may be available to it.
10. Termination. Your employment hereunder as President and
Chief Executive Officer shall commence as provided for under subsection 1(a) and
shall continue for the period set forth in Section 2 hereof unless sooner
terminated upon the first to occur of the following events:
(a) Death. Your death;
- 9 -
10
(b) Disability. You have been unable, for a period of one
hundred eighty (180) consecutive business days, to perform your duties under
this Agreement, as a result of physical or mental illness or injury ("Becoming
Totally Disabled") and the Company shall have communicated to you the fact of
your termination by written notice, which termination shall be effective on the
30th day after receipt of such notice by you (the "Total Disability Effective
Date"), unless you return to full-time performance of your duties before the
Total Disability Effective Date;
(c) Termination by the Company for Cause. For purposes of this
Agreement, the term "Cause" shall mean any of the following; provided, however,
that the Company has terminated you pursuant to this subsection 10(c) within 60
days of the Board of Directors having first obtained knowledge of a basis for
termination under this subsection 10(c):
(i) A breach by you of any of the provisions of Sections
4, 5, 6, 7 or 8 of this Agreement which results in a
material detriment to the Company or any Affiliate
thereof;
(ii) Any breach by you of subsection 1(b) or (c) which is
not cured by you within 30 days of written notice
thereof from the Company; provided, however, your
right to such 30 day cure period shall be conditioned
upon your good faith attempt to cure such breach;
(iii) Any action or omission by you to intentionally harm
the Company which is in bad faith and likely to cause
a material harm to the Company or any other act or
bad faith omission having the effect of materially
harming the Company, its business or reputation;
(iv) The perpetration of an intentional and knowing fraud
against or adversely affecting the Company or any
Covered Party which causes or is likely to cause a
material detriment to the Company; or
(v) The conviction of you of any crime classified as a
felony.
(d) Termination by the Company Without Cause. The Company may
terminate your employment hereunder at any time for any reason or no reason by
giving you thirty (30) days prior written notice of the termination.
(e) Termination By You For Good Reason. You may terminate your
employment hereunder for "Good Reason" for (i) having been assigned duties by
the Board of Directors which are inconsistent in any material respect with
Section 1 of this Agreement or any other action by the Company that results in a
material diminution in your title, position, authority, duties or
responsibilities, either of which is not cured by the Company within 30 days of
written notice thereof from you; or (ii) any failure by the Company to comply
with Section 3 other than an isolated, insubstantial and inadvertent failure
that is not taken in bad faith and is remedied by the Company promptly after
receipt of notice thereof from you; (iii) your failure to be re-elected to the
Company's Board of Directors, unless , at the time you are not re-elected, the
Company has the right to terminate you for Cause under subsection 10(c) of this
Agreement and does so within 45 days of
- 10 -
11
your failure to be re-elected; or (iv) relocation of the Company's principal
place of operations, provided that such relocation results in a principal place
of operations more than 75 miles from New York, New York.
(f) Termination by You Without Good Reason. You may terminate
your employment hereunder at any time for any reason or no reason by giving
thirty (30) days prior written notice of termination. If you do, you shall be
entitled only to the following compensation:
(i) Any accrued but unpaid Base Salary as of the date of
termination for services rendered to the date of
termination;
(ii) Any accrued but unpaid expenses required to be
reimbursed pursuant to Section 3;
(iii) Any vacation accrued to the date of termination.
(iv) Any accrued but unpaid bonus payments; and
(v) The amounts set forth in subsection 3(b)(ii), if not
already paid.
11. Compensation Following Termination Prior to the End of the
Term.
In the event that your employment hereunder is terminated
prior to the end of the Term, you shall be entitled only to the following
compensation and benefits upon such termination:
(a) Termination by Reason of Death or Becoming Totally
Disabled; Termination by the Company for Cause.
In the event that your employment is terminated by reason of
your death or your becoming Totally Disabled, or by the Company for Cause,
pursuant to Sections 10(a), 10(b) or 10(c), the Company shall pay the following
amounts to you (or your estate, as the case may be):
(i) Any accrued but unpaid Base Salary as of the date of
termination for services rendered to the date of
termination;
(ii) Any accrued but unpaid expenses required to be
reimbursed pursuant to Section 3;
(iii) Any vacation accrued to the date of termination;
(iv) Any accrued but unpaid bonus payments; and
(v) The amounts set forth in subsection 3(b)(ii), if not
already paid.
The benefits to which you may be entitled upon termination
pursuant to the plans, programs and arrangements referred to in Section 3 hereof
shall be determined and paid in accordance with the terms of such plans,
policies and arrangements.
- 11 -
12
(b) Termination by the Company Without Cause; Termination by
You for Good Reason. In the event that your employment is terminated by the
Company without Cause pursuant to Section 10(d) or by you for Good Reason
pursuant to Section 10(e), the Company shall pay the following amounts to you:
(i) Any accrued but unpaid Base Salary as of the date of
termination for services rendered to the date of
termination, payable within 30 days;
(ii) Any accrued but unpaid expenses required to be
reimbursed pursuant to Section 3, payable within 30
days;
(iii) Any vacation accrued to the date of termination,
payable within 30 days; and
(iv) As your sole damages; (i) the Base Salary which you
would have received during the twelve month period
following the date on which your employment is
terminated and any bonus which would have been
payable to you within 12 months of the date of
termination pursuant to section 3(iii) or 3(iv) had
you still been employed by the Company; provided
that, in the event that you have terminated your
employment pursuant to subsection 10(e), and the
Company has provided you notice of a basis of a
breach, within 45 days of the Board of Director's of
the Company having obtained first knowledge of such
basis, of any covenant contained in Sections 5, 6, 7
or 8 hereof, you shall not be entitled to any payment
under this clause (iv) of this Section 11(b); and
(ii) all stock options received pursuant to
subsection 3(c) hereof shall become fully vested. Any
payments to be made pursuant to this subsection 11(b)
shall be made in accordance with the Company's
standard payroll practices then in effect; and
(v) The amounts set forth in subsection 3(b)(ii), if not
already paid.
The benefits to which you may be entitled upon termination
pursuant to the plans, policies and arrangements referred to in Section 3 hereof
shall be determined and paid in accordance with the terms of such plans,
policies and arrangements.
(c) It is the intention of the parties that all cash payouts
that may be due subject to this Section 11 shall be guaranteed by either
Paramount Capital, the Aries Funds, or some other party that the Company and you
mutually agree upon.
(d) No Other Benefits or Compensation. Except as may be
provided under this Agreement, under the terms of any incentive compensation,
employee benefit or fringe benefit plan applicable to you at the time of the
termination of your employment prior to the end of the Term, you shall have no
right to receive any other compensation, or to participate in any other plan,
arrangement or benefit, with respect to any future period after such
termination.
12. Notices. Any notice or other communication under this
Agreement shall be in writing and shall be deemed to have been given: when
delivered personally after receipt therefor;
- 12 -
13
one (1) day after being sent by Federal Express or similar overnight delivery;
or three (3) days after being mailed registered or certified mail, postage
prepaid, return receipt requested, to either party at the address set forth
below, or to such other address as such party shall give by notice hereunder to
the other party.
If to the Company:
Genta Incorporated
c/o Paramount Capital, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
(000) 000-0000
Attention: Xxxx X. Xxxxxx, M.D.
With a copy to:
Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
(000) 000-0000
Attention: Xxxxxx X. Xxxx, Esq.
If to you:
Xxxxxxx Xxxxxxx, Xx., M.D.
0 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
(000) 000-0000
With a copy to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
(000) 000-0000
Attention: Xxxxxx Xxx, Esq.
13. Severability of Provisions. If any provision of this
Agreement shall be declared by a court of competent jurisdiction to be invalid,
illegal or incapable of being enforced in whole or in part, the remaining
conditions and provisions or portions thereof shall nevertheless remain in full
force and effect and enforceable to the extent they are valid, legal and
enforceable, and no provision shall be deemed dependent upon any other covenant
or provision unless so expressed herein. If any provision of this Agreement, or
any part thereof, is held to be invalid or unenforceable because of the scope or
duration of or the area covered by such provision, the parties hereto agree that
the court making such determination shall reduce the scope, duration and/or
area of such
- 13 -
14
provision (and shall substitute appropriate provisions for any such invalid or
unenforceable provisions) in order to make such provision enforceable to the
fullest extent permitted by law and/or shall delete specific words and phrases,
and such modified provision shall then be enforceable and shall be enforced. The
parties hereto recognize that if, in any judicial proceeding, a court shall
refuse to enforce any of the separate covenants contained in this Agreement,
then that invalid or unenforceable covenant contained in this Agreement shall be
deemed eliminated from these provisions to the extent necessary to permit the
remaining separate covenants to be enforced. In the event that any court
determines that the time period or the area, or both, are unreasonable and that
any of the covenants is to that extent invalid or unenforceable, the parties
hereto agree that such covenants will remain in full force and effect, first,
for the greatest time period, and second, in the greatest geographical area that
would not render them unenforceable.
14. Entire Agreement; Modification. This Agreement contains
the entire agreement of the parties relating to the subject matter hereof, and
the parties hereto have made no agreements, representations or warranties
relating to the subject matter of this Agreement which are not set forth herein.
No modification of this Agreement shall be valid unless made in writing and
signed by the parties hereto.
15. Binding Effect. The rights, benefits, duties and
obligations under this Agreement shall inure to, and be binding upon, the
Company, its successors and assigns, and upon you and your legal
representatives. This Agreement constitutes a personal service agreement, and
the performance of your obligations hereunder may not be transferred or assigned
by you.
16. Non-waiver. The failure of either party to insist upon the
strict performance of any of the terms, conditions and provisions of this
Agreement shall not be construed as a waiver or relinquishment of future
compliance therewith, and said terms, conditions and provisions shall remain in
full force and effect. No waiver of any term or condition of this Agreement on
the part of either party shall be effective for any purpose whatsoever unless
such waiver is in writing and signed by such party.
17. Governing Law. This Agreement shall be governed by, and
construed and interpreted in accordance with, the laws of the State of New York
without regard to principles of conflict of laws.
18. Survivability. The provisions of this Agreement which by
their terms call for performance subsequent to termination of your employment
hereunder, or of this Agreement, shall so survive such termination.
19. Headings. The headings of paragraphs are inserted for
convenience and shall not affect any interpretation of this Agreement.
If this letter agreement meets with your approval and you
desire to accept this offer of employment on the terms and conditions set forth
herein, please execute the enclosed copy of this letter and return it to me as
soon as possible.
- 14 -
15
Sincerely,
GENTA INCORPORATED
By:___________________________
Xxxx X. Xxxxxx, M.D.
AGREED AND ACCEPTED
AS OF THE DATE FIRST SET FORTH ABOVE:
____________________________________
Xx. Xxxxxxx X. Xxxxxxx, Xx.
- 15 -
