Exhibit 10.10
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made effective as of
this 15TH day of February, 2005 (the "Effective Date"), by and between
ImmuneRegen BioSciences, Inc., a Delaware corporation (the "Company"), and Xxxx
X. Xxxxxxxx, an individual ("Employee"), with reference to the following facts:
RECITALS
WHEREAS, the Company desires that Employee be employed as Chief
Financial Officer of the Company; and
WHEREAS, Employee is willing to be employed by the Company and provide
services to the Company under the terms and conditions herein stated.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained, and for other good and valuable consideration, it is
hereby agreed by and between the parties hereto as follows:
AGREEMENT
1. EMPLOYMENT, SERVICES, AND DUTIES
1.1 EMPLOYMENT. The Company hereby employs Employee as Chief
Financial Officer of the Company and Employee hereby accepts
such employment as of the Effective Date upon the terms,
covenants and conditions set forth herein. Employee shall
render his/her services to the Company by and subject to the
instructions and directions of the Company's President and
Chief Executive Officer to whom Employee shall directly
report.
1.2 DUTIES. Employee shall perform all duties assigned to him/her
to the best of his/her ability and in a manner satisfactory to
the Company.
1.3 TIME AND EFFORTS. Employee shall devote his/her full-time
efforts, attention, and energies to the business of the
Company. Notwithstanding the foregoing, Employee may perform
services for other persons, businesses and organizations,
provided that the performance of such services does not
interfere and is not inconsistent with the Employee's
performance of his/her duties and obligations under this
Agreement, including without limitation, the Employee's duties
and obligations under Section 6 of this Agreement.
2. TERM
The term of employment under this Agreement ("Term of Employment")
shall commence on the Effective Date and, subject to the provisions
of Section 4 below, shall continue for three years.
3. COMPENSATION
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As the total consideration for Employee's services rendered
hereunder, Employee shall be entitled to the following:
3.1 BASE SALARY. A salary of $60,000 until the Company completes a
financing of $500K or more. A salary of $85,000 beginning on
the Financing Date through the end of December 2005 (the
"First Year Salary"). A salary of $98,000 from January 1, 2006
through December 31, 2006 (the "Second Year Salary"). A salary
of $112,000 from January 1, 2007 through December 31, 2007
(the "Third Year Salary" and collectively with the First Year
Salary and the Second Year Salary, the "Base Salary"). The
Base Salary shall be payable in regular installments in
accordance with the customary payroll practices of the
Company. Employee's Base Salary shall be subject to such
payroll deductions as required by law or as appropriate under
the Company's payroll deduction procedures.
3.2 COMMON STOCK. Employee shall be issued 100,000 shares of IRBO
common stock upon the signing of this Agreement. Another
100,000 shares of IRBO common stock is also to be issued in
equal monthly installments over the next twelve (12) months
after signing this agreement.
3.3 BONUS. Employee shall be entitled to a discretionary bonus
pursuant to those terms set forth in EXHIBIT A hereto.
3.4 EXPENSES. During the Term of Employment, Employee is entitled
to reimbursement for reasonable and necessary business
expenses, per Company policy, incurred by Employee in
connection with the performance of Employee's duties hereunder
provided that (a) such expenses are ordinary and necessary
expenses incurred on behalf of the Company, and (b) Employee
provides the Company with itemized accounts, receipts and
other documentation for such expenses, to be reviewed by
Xxxxxxx X. Xxxxxxx, as are reasonably required by the Company.
3.5 VACATION. The Company's board of directors shall determine the
Employee's vacation time during the first year of the Term of
Employment. Employee shall be entitled to three weeks vacation
time during the second and third years of the Term of
Employment without loss of compensation during the Term of
Employment. Employee's vacation shall be governed by the
Company's usual policies applicable to all Employees.
3.6 FRINGE BENEFITS. Employee shall be entitled to participate in
or receive benefits under any employee benefit plan or other
arrangement made available by the Company to its employees,
subject to and on a basis consistent with the terms,
conditions and overall administration of such plans and
arrangements.
4. TERMINATION
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Employee's employment shall terminate prior to the expiration of the
Term of Employment set forth in Section 2 above upon the happening
of the following:
4.1 TERMINATION FOR CAUSE. The Company may terminate this
Agreement for Cause. For purposes of this Agreement, "Cause"
shall mean:
(a) a material act of dishonesty in connection with the
Employee's responsibilities as an employee of the Company;
(b) Employee's conviction of, or plea of nolo contendere to, a
felony or a crime involving moral turpitude;
(c) Employee's gross misconduct which has a material adverse
effect on the Company; or
(d) Employee's consistent and willful failure to perform
his/her employment duties where such failure is note cured
within 30 after written notice to Employee by the Company.
4.2 TERMINATION WITHOUT CAUSE. The Company may terminate the
employment of Employee and all of the Company's obligations
hereunder (except as hereinafter provided) at any time and for
any reason or for no reason during the Term of Employment
without Cause by giving Employee written notice of such
termination, to be effective 30 days flowing the giving of
such written notice.
4.3 TERMINATION DUE TO DISABILITY OR DEATH, Employee's employment
hereunder:
(a) May be terminated by the Company upon 30 days' notice to
Employee in the event that the Company in good faith
determines that Employee has been unable to
satisfactorily perform his/her duties under this
Agreement for an aggregate of 90 days within any
12-month period, or can reasonably be expected to be
unable to do so for such period, as the result of
Employee's incapacity due to physical or mental
impairment, and within 30 days of receipt of such
notice, Employee shall not have returned to the
full-time, continuing performance of his/her duties
hereunder, and
(b) Will terminate immediately upon the death of Employee.
5. EFFECT OF TERMINATION
5.1 TERMINATION FOR CAUSE. In the event that Employee's employment
is terminated pursuant to Sections 4.1 above, the Company
shall pay to Employee, or his/her representatives, on the date
of termination of employment (the "Termination Date"), in
satisfaction in full for all of its obligations hereunder, the
following:
(a) Two months salary and payment for any accrued vacation
provided for in Section 3.5, in each case computed on a
pro rata basis to the Termination Date; and
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(b) Any expense reimbursements due and owing to Employee as
of the Termination Date.
5.2 TERMINATION FOR DEATH OR DISABILITY. In the event Employee's
employment is terminated pursuant to Section 4.3, the Company
shall pay to Employee, or his/her representatives, on the
Termination Date in satisfaction in full for all of its
obligations hereunder, the following:
(a) in the case of termination due to death, payment for any
accrued vacation provided for in Section 3.5, in each
case computed on a pro rata basis to the Termination
Date; and
(b) in the case of termination due to disability, two months
salary and payment for any accrued vacation provided for
in Section 3.5, in each case computed on a pro rata
basis to the Termination Date; and
(c) in the case of termination due to either death or
disability, any expense reimbursements due and owing to
Employee as of the Termination Date.
5.3 TERMINATION WITHOUT CAUSE OR A CONSTRUCTIVE TERMINATION. In
the event Employee's employment is terminate pursuant to
Section 4.2 or in the event a Constructive Termination occurs,
the Company shall pay to Employee, his/her representatives, on
the Termination Date in satisfaction in full for all of its
obligations hereunder, the following:
(a) the remainder of the salary for the year or six months
salary, whichever is greater and payment for any accrued
vacation provided for in Section 3.5, in each case
computed on a pro rata basis to the Termination Date;
and
(b) any expense reimbursements due and owing to Employee as
of the Termination Date.
6. NON-COMPETITION; CONFIDENTIALITY; NON-SOLICITATION
6.1 COVENANT NOT TO COMPETE. During the Term of Employment,
neither Employee nor any affiliate of Employee, shall compete
in any manner, directly or indirectly, with the business of
the Company and/or its affiliates (that is, the business of
developing, manufacturing, marketing or selling products or
services similar to those of the Company and/or its
affiliates), or own, manage, operate, control, participate or
have any interest in or be connected in any manner with the
ownership or control of any business developing,
manufacturing, marketing or selling products or services
similar to those of the Company and/or its affiliates. As used
in this Agreement, an "affiliate" of Employee is any spouse,
parent, child, or sibling of Employee, or any corporation,
partnership, association or their business entity which
directly or indirectly is controlled or can have its acts
affected by Employee or in which Employee has an investment.
Nothing contained in this Agreement shall be deemed to
preclude Employee from purchasing or owning, directly or
beneficially, as a passive investment, less than five percent
(5%) of any class of publicly traded
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securities of any corporation so long as Employee does not
actively participate in or control, directly or indirectly,
any investment or other decisions with respect to such
corporation.
6.2 CONFIDENTIALITY AND RETURN OF COMPANY DOCUMENTS. Employee
recognizes and acknowledges that by virtue of his/her
employment with the Company, he/she will have access to
certain trade secret and confidential information of the
Company and that such information constitutes valuable,
special and unique property of the Company, and derives
economic value because it is not generally known to the public
or to others who could benefit from its disclosure or use
("Trade Secrets"). Trade Secrets include, but are not limited
to, the following:
(a) customer and contact information such as customer lists
and other information concerning particular needs,
problems, likes or dislikes of the Company's customers
and contacts;
(b) the identities of the Company's customers and contacts;
(c) price information, such as price lists, the contents of
bids, and other information concerning costs or profits;
(d) technical information, such as formulae, know-how,
computer programs, software, source and object codes,
secret processes or machines, inventions and research
projects, documentation, or other methods or processes;
(e) business information relating to costs, profits, sales,
markets, suppliers, plans for further development,
market studies or research projects;
(f) personnel or a compilation of data concerning the
Company's employees and independent contractors; and
(g) any other information valuable because of it private or
confidential nature.
Employee agrees that during the term of employment, and for
three years thereafter, he/she will not reproduce, copy or
disclose the Company's Trade Secrets and confidential business
information to any person, firm, corporation, association or
other entity for any reason or purposes whatsoever, nor will
Employee advise, discuss or in any way assist any other person
or firm (including customers or former customers of the
Company) in obtaining or learning about the Company's Trade
Secrets. Employee covenants and acknowledges that upon
separation from employment with the Company, he/she shall
immediately surrender to the Company all of the Company's
Trade Secrets and any and all such documents, materials or
other tangible items pertaining to these Trade Secrets that
he/she may possess and that such Trade Secrets shall be and
remain the sole property of the Company. Employee agrees that
if he/she is in doubt as to whether any information, material,
or document is a Trade Secret or is confidential, he/she will
contact the board of directors of the Company before
disclosing or using such information for any purpose other
than in furtherance of Employee's duties as an employee of the
Company. Employee agrees that it will not work for a company
competing directly with the Company during the term of his/her
employment and for three years thereafter.
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6.3 SOLICITATION OF THE COMPANY'S EMPLOYEES OR CUSTOMERS. Employee
agrees that at any time during the term of his/her employment
and for three (3) years after that term he/she shall not
solicit, directly or indirectly, any employees of the Company
to leave employment by the Company to work for or with
Employee or any competitor of Company nor solicit any of the
Company's customers or potential customers who were solicited
by the Company within a twelve (12) month period immediately
prior to the termination of Employee's engagement.
6.4 SURVIVAL OF CONFIDENTIALITY AND NON-SOLICITATION. The
requirements and covenants of this Section 6.2 and 6.3 shall
survive and continue after the Term of Employment. Employee
recognizes and agrees that violation or threatened violation
of any provision contained in this Section 6 will cause
irreparable damage or injury to the Company and that the
Company's remedies at law for any breach of this Section 6 may
not be adequate, and the exact amount of the Company's damages
in the event of such breach may be impossible to ascertain.
Therefore, the Company shall be entitled, as a matter of
right, without further notice and without the necessity of
posting bond thereof, to injunctive and other equitable relief
restraining any threatened or further violation of this
Section. The Company's right to an injunction shall be in
addition to, and not in limitation of, any and other rights
and remedies it may have against Employee, including, but not
limited to, the recovery of damages.
7. NOTIFICATION TO NEW EMPLOYER.
If Employee leaves the employ of the Company, Employee consents to
the Company's notification to any new employer of Employee's and
Company's rights and obligations under this Agreement.
8. SEVERABILITY
Should any term, provision, covenant or condition or this Agreement
be held to be void or invalid, the same shall not affect any other
term, provision, covenant or condition of this Agreement, but such
remainder shall continue in full force and effect as though each
such voided term, provision, covenant or condition is not contained
herein.
9. GOVERNING LAW AND SUBMISSION TO JURISDICTION
This Agreement shall be governed by and construed in accordance with
the laws of the State of Arizona. Each of the parties submits to the
exclusive jurisdiction of any state or federal court sitting in
Phoenix, Arizona in any action or proceeding arising out of or
relating to this Agreement and further agrees that all claims in
respect of the action or proceeding may be heard and determined in
any such court and agrees not to bring any action or proceeding
arising out of or relating to this Agreement in any other court.
Each party agrees that a final judgment in any action or proceeding
so brought shall be conclusive and may be enforced by suit on the
judgment or in any other manner so provided by law.
10. BINDING AGREEMENT
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This Agreement shall inure to the benefit of and shall be binding
upon the Company, its successors and assigns.
11. CAPTIONS
The Section captions herein are inserted only as a matter of
convenience and reference and in no way define, limit or describe
the scope of this Agreement or the intent of any provisions hereof.
12. ENTIRE AGREEMENT
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 that are not set forth otherwise herein.
This Agreement supersedes any and all prior agreements, written or
oral, with the Company. Any such prior agreements are hereby
terminated and of no further effect and Employee, by the execution
hereof, agrees that any compensation provided for under any such
prior agreement(s) is specifically superseded and replaced by the
provision of this Agreement. No modification of this Agreement shall
be valid unless made by the unanimous written consent of the board
of directors of the Company. The parties hereto agree that in no
event shall an oral modification of this Agreement be enforceable or
valid.
13. NOTICE
All notices and other communications under this Agreement shall be
in writing (including, without limitation, telegraphic, telex,
telecopy or cable communication) and mailed, telegraphed, telexed,
telecopied, cabled or delivered by hand or by nationally recognized
courier service guaranteeing overnight delivery to a party at the
following address (or to such other address as such party may have
specified by notice given to the other party pursuant to this
provision):
If to the Company:
ImmuneRegen BioSciences, Inc.
0000 X. 00xx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
With a copy to:
Xxxxxxxxxxx & Xxxxxxxx LLP
00000 Xxxxx Xxxxxx Xxxx., 0xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
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If to Employee:
00000 X. Xxxxxxx Xx. #0000
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx
14. ATTORNEY'S FEES
In the event that any party shall bring an action, reference,
arbitration or proceeding in connection with the performance, breach
or interpretation hereof, then the prevailing party in such action,
reference, arbitration or proceeding as determined by the court or
other body having jurisdiction shall be entitled to recover from the
losing party all reasonable costs and expenses of such action,
reference, arbitration or proceeding, including reasonable
attorneys' fees, court costs, costs of investigation, expert witness
fees and other costs reasonably related to such proceeding.
IN WITNESS WHEREOF, this Agreement is executed as of the day and year first
above written.
"COMPANY"
IMMUNEREGEN BIOSCIENCES, INC.
a Delaware corporation
By: /s/ Xxxxxxxx X. Xxxxxxx
------------------------------------------------
Xxxxxxxx X. Xxxxxxx, Secretary
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------------
Xxxxxxx X. Xxxxxxx, CEO
And
"EMPLOYEE"
/s/ Xxxx X. Xxxxxxxx
-----------------------------------------------------
Xxxx X. Xxxxxxxx
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EXHIBIT A
DISCRETIONARY BONUS
In addition to Base Salary, the Employee shall be eligible to receive a
quarterly discretionary bonus based upon the Employee's and the Company's
performance for the preceding quarter of the Company's fiscal year. Such
discretionary bonus shall be in the form of Stock Options under the Company's
2002 Stock Option, Deferred Stock and Restricted Stock Plan (the "Stock
Option").
Additionally, the Employee shall be eligible to receive quarterly a
five-year warrant to purchase up to 12,500 shares of the Company's Common Stock
with an exercise price equal to 75% of the fair market value of the Company's
Common Stock on the date such warrant is issued (the "Warrants"). The amount of
Stock Options and Warrants constituting such bonus shall be determined by the
Compensation Committee of the Board of Directors in its sole discretion. Such
bonus compensation shall be earned as of the last day of the applicable quarter
provided that Employee is actively employed by the Company on such date.
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