Amended and Restated Employment Agreement with Dr. William A. Carter dated July 15 2010 AMENDED EMPLOYMENT AGREEMENT
Exhibit
10.1
Amended and
Restated Employment Agreement with
Xx. Xxxxxxx X. Xxxxxx dated July 15 2010
Xx. Xxxxxxx X. Xxxxxx dated July 15 2010
AMENDED
EMPLOYMENT AGREEMENT
THIS
AMENDED EMPLOYMENT AGREEMENT (the “Agreement”) was made and entered into as of
this 11th day of June 2010, between HEMISPHERX BIOPHARMA, INC., a Delaware
corporation (the “Company”), and Dr. Xxxxxxx Xxxxxx of Tavernier, Florida (the
“Employee” or “Xx. Xxxxxx”) and amended on July 15, 2010.
WHEREAS,
the Company desires to employ Xx. Xxxxxx as its Chief Executive
Officer and Chairman of its Board of Directors;
WHEREAS,
the Employee and the Company wish to state the terms and conditions of the
Agreement herein;
NOW,
THEREFORE, the Company and the Employee hereby agree as follows:
1.
Duties of
Employee. The Employee shall, during the Employment Period (as
defined below), be designated as the Chief Executive Officer and Chairman of the
Board of the Company. In the Employee's capacity as such, he shall perform
such duties and functions for the Company as are customarily performed in
corporations of a similar size in the medical research field. Company
acknowledges that Xxxxxx has other business interests which may, from time to
time, require his time and attention. Xxxxxx may continue such
business interests not inconsistent with his Chief Executive Officer and
Chairman of the Board duties.
Employee
shall serve on the Board of Directors of the Company and, when designated, its
affiliates and subsidiaries, providing Employee receives those director’s fees
at the highest rate then being paid to any other member of the board compensated
for services as a director. This obligation shall be retroactive to January 1,
2010.
2.
Term.
This Agreement shall commence on, June 15, 2010 and shall terminate on December
31, 2015 (the "Initial Termination Date") unless sooner terminated in accordance
with Section 5 hereof or unless renewed as hereinafter provided (such period of
employment together with any extension thereto hereinafter being called the
"Employment Period”). This Agreement shall be automatically renewed for
successive three (3) year periods after the initial Termination Date unless
written notice of refusal to renew is given by one party to the other at least
180 days prior to the Initial Termination Date or the expiration date of any
renewal period. In the event of a change in control as defined in the
Company’s 10-K/A filing of April 30, 2010, the term of this agreement shall
automatically be extended for three additional years.
3. Compensation. (a) As
compensation for the services to be performed hereunder,
the Company shall pay to the Employee a salary (the "Salary"), as hereinafter
provided, payable at such times as salaries of other senior executives of the
company are paid but no less frequently than monthly. The Salary shall be
at a rate of Five Hundred Thousand dollars ($500,000) per year (the "Base
Salary"), which shall be subject to cost-of-living adjustments, as provided in
the succeeding subsection (b).
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(b)
The Salary shall consist of the Base Salary, increased as provided
in this subsection. On January 1, 2011, and on January 1 of each
succeeding calendar year during the Employment Period, the Base Rate shall be
increased by a percentage equal to the greater of the percentage average
increase in the Bureau of Labor Statistics "Consumer Price Index — U.S. City
Average — All Items" from the December 31st of the
preceding year to January 1st of the
preceding year or a universal, non-discriminatory Cost Of Living salary
adjustment as approved by the Compensation Committee.
(c)
For each calendar year (or part thereof) during which the Agreement is in
effect, the Employee shall be eligible to be paid the following
bonuses:
(i)
a performance bonus in an amount up to twenty-five percent (25%) of his current
Base Salary as then in effect, in the sole discretion of the Compensation
Committee of the Board of Directors based on the Employee's performance and/or
the Company's operating results for such year; and
(ii)
an incentive bonus in an amount equal to Two and One Half ( 2.5%) percent of the
Gross Proceeds paid to the Company to the Company as a result of sales of
Alferon N Injection®, Alferon® LDO, Ampligen or other Company products, or
from any joint ventures or corporate partnering arrangements .
For purposes herein, Gross Proceeds shall mean those cash amounts paid to the
Company by the other parties to the joint -venture or corporate partnering
arrangement, but shall not include (i) any amounts paid to the Company as
reimbursement of expenses incurred; and (iii) any amounts paid to the Company in
consideration for the Company's assets (i.e, plant, property, equipment,
investments, etc), equity or other securities. After the termination of
this Agreement, for any reason, the Employee shall be entitled to
receive the incentive bonus provided for in this
subsection 3(c)(ii) based upon Gross Proceeds received by the Company during the
3 year period commencing on the termination of this Agreement with respect to
any joint ventures or corporate partnering arrangements entered into by the
Company during the term of this Agreement. Furthermore, Employee
shall be entitled to a 5% bonus related to any sale of the Company, or any sale
of a substantial portion of Company assets not in the ordinary course of
its business. The aggregate incentive bonus hereunder as set forth above shall
be capped not to exceed $5,000,000 annually.
The
performance bonus shall be eligible to be paid in cash within 90 days of the
close of the calendar year. The incentive bonus shall be paid in cash
within 90 days of the receipt of the Gross Proceeds by the Company.
(d) The
Employee is hereby granted non-qualified stock options as additional
compensation for the services to be performed hereunder, the Company shall issue
to the Employee, non-qualified annual options valid for a ten year
period to purchase 500,000 shares of the Company common stock with an exercise
price equal to 110% of the closing price of the Company stock on the NYSE/ Amex
on June 10, 2010, the effective trading date immediately preceding
the date this agreement was effectively approved by the Board of
Directors. For future years of this agreement, a similar option shall be
awarded on July 15th of each
year thereafter based upon an exercise price equal to 110% of the closing price
of the Company stock on the NYSE Amex on the effective trading date immediately
preceding the date of the grant, for each respective year for which
Xx. Xxxxxx remains an active employee at that date. .
(e) Notwithstanding
any provision of this Agreement to the contrary, if the Employee is considered a
“specified employee” as defined in the Internal Revenue Code section 409A
regulations upon his “separation from service” (as defined in the section 409A
regulations), the provisions of this section shall govern all distributions of
deferred compensation hereunder that are subject to Internal Revenue Code
section 409A. Benefit distributions that are made due to a “separation
from service” occurring while the Employee is a “specified employee” shall not
be made during the first six (6) months following “separation from
service”. Rather, any distribution which would otherwise be paid to the
Employee during such period shall be accumulated and paid to the Employee in a
lump sum on the first day of the seventh month following the “separation from
service”. All subsequent distributions shall be paid in the manner
specified.
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4.
Fringe
Benefits. During the Employment Period, the Employee shall be
entitled to receive such fringe benefits as shall be applicable from time to
time to the Company's executives generally, including but not limited to such
401(k), vacation, group life and health insurance, and disability benefit plans
as may be maintained by the Company from time to time. Additionally,
during the Employment Period, the Company shall pay, for the benefit of the
Employee, the premiums for a disability insurance policy in the face amount of
$500,000 and the premiums for term life insurance policies in the aggregate face
amount of $6,000,000 insuring the life of the Employee, with the Employee having
the right to designate the beneficiary or beneficiaries thereof.
5.
Termination.
(a) The Company may discharge the Employee for cause at any time as provided
herein, for purposes hereof, “cause” shall mean the willful engaging by Employee
in illegal conduct or gross misconduct or gross violation of the Company’s Code
of Ethics And Business Conduct for Officers which is demonstrably and materially
injurious to the Company. For purposes of this Agreement, no act, or failure to
act, on Employee's part shall be deemed "willful" unless done intentionally by
Employee and not in good faith and without reasonable belief that
Employee's action or omission was in the best interest of the Company.
Notwithstanding the foregoing, Employee shall not be deemed to have been
terminated for Cause unless and until the Company delivers to Employee a copy of
a resolution duly adopted by the affirmative vote of not less than
three-quarters of the directors of the Board at a meeting of the Board called
and held for such purpose (after reasonable notice to Employee and an
opportunity for Employee, together with counsel, to be heard before the Board)
finding that, in the good faith opinion of the Board, Employee was guilty of
conduct set forth above and specifying the particulars thereof in
detail.
(b)
The employment of the Employee shall terminate upon the death or
disability of the Employee. For purposes of this subsection (b),
“disability” shall mean the inability of the Employee effectively to carry out
substantially all of his duties hereunder by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or which has lasted for a continuous period of not less than twelve (12)
months.
(c)
The Employee shall have the right to terminate this Agreement
upon not less than thirty (30) days, prior written notice of
termination.
6.
Effect of
Termination. (a) In the event
that the Employees employment is terminated for "cause" pursuant to subsection
5(a) , the Company shall pay to the Employee, at the time of such termination,
only the compensation and benefits otherwise due and payable to him under
Sections 3 and 4 through the last day of his actual employment by the
Company.
(b)
In the event that the Employee is terminated at any time
without "cause", as defined in subsection 5(a), the Company shall pay to the
Employee, at the time of such termination, the compensation and benefits
otherwise due and payable to him under Sections 3 and 4 through the last day of
the then current term of this Agreement.
(c)
In the event the Employee's employment is terminated at his
election pursuant to subsection 5(c) or due to his death or disability
pursuant to 5(b), the Company shall pay to the Employee, at the time of such
termination, the Base Salary and applicable benefits otherwise due and
payable to him under Sections 3 and 4 through the last day of the month in which
such termination occurs and for an additional twelve month
period.
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(d)
Upon termination of Employee's employment, with or without cause, in accordance
with the terms hereof, Employee shall resign from the Company's Board of
Directors.
7.
Employee's
Representations and Warranties. The Employee hereby represents and
warrants to the Company that he has the right to enter into this Agreement, and
his execution, delivery and performance of this Agreement (a) will not violate
any contract to which the Employee is a party or any applicable law or
regulation nor give rise to any rights in any other person or entity and (b) are
not subject to the consent of any other person or entity.
8.
Confidentiality,
Invention and Non-Compete Agreement. The Employee confirms his
obligation to be bound by the terms of the Confidentiality, Invention and
Non-Compete Agreement attached hereto as Exhibit B, executed
as of July 1, 1993.
9. Offices.
Xx. Xxxxxx may conduct
the business of the Company from a variety of locations, including but not
limited to those offices of the Chairman and CEO in Philadelphia, his home
office, and from the Retreat House in Tavernier. The Company shall supply
that equipment necessary for full telephone, telefax and internet access at all
these locations and supply a portable computer capable of remote access while
employee travels domestically and internationally on Company
business.
10. Expenses.
The Company shall be responsible for all travel and business
entertainment expenses of Xx. Xxxxxx. The expenditures shall be as prescribed or
limited by the Company’s Travel & Expense policies and procedures. The
Company shall provide Xx. Xxxxxx with an unrestricted American Express Platinum
card and a Visa Platinum card to use for all travel, entertainment and business
related expenses of the company contemplated by this agreement.
11.
Notices.
Any notice or other communication pursuant to this Agreement shall be in writing
and shall be sent by telecopy or by certified or registered mail addressed to
the respective parties as follows:
(i)
If to the Company, to:
HEMISPHERX
BIOPHARMA, INC.
One
Penn Center
0000
XXX Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000
Telecopier
No.: (000) 000-0000
Attention:
Xxxxxx X. Xxxxxx
General
Counsel, Secretary, Executive Vice Chairman
(ii)
If to the Employee, to:
Xx.
Xxxxxxx X. Xxxxxx, M.D.
HEMISPHERX
BIOPHARMA, INC.
One
Penn Center
0000
XXX Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000
Telecopier
No.: (000) 000-0000
or
to such other address as the parties shall have designated by notice to the
other parties given in accordance with this section. Any notice or other
communication shall be deemed to have been duly given if personally delivered or
mailed via registered or certified mail, postage prepaid, return receipt
requested, or, if sent by telecopy, when confirmed.
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12.
Survival.
Notwithstanding anything in section 2 hereof to the contrary, the
Confidentiality, Invention and Non-Compete Agreement shall survive any
termination of this Agreement or any termination of the Employee's
services.
13.
Modification.
No modification or waiver of this Agreement or any provision hereof shall be
binding upon the party against whom enforcement of such modification or waiver
is sought unless it is made in writing and signed by or on behalf of both
parties hereto.
14.
Miscellaneous.
(a) This
Agreement shall be subject to and construed in accordance with the laws of the
State of Florida. Furthermore, the parties acknowledge that the Company has had
independent counsel representing it in this matter.
(b)
The waiver by either party of a breach of any provision of this Agreement by the
other party shall not operate and be construed as a waiver or a continuing
waiver by that party of the same or any subsequent breach of any provision of
this Agreement by the other party.
(c)
If any provisions of this Agreement or the application thereof to any person or
circumstance shall be determined by an arbitrator (or panel or arbitrators) or
any court of competent jurisdiction to be invalid or unenforceable to any
extent, the remainder hereof, or the application of such provision to persons or
circumstances other than those as to which it is so determined to be invalid or
unenforceable, shall not - be affected thereby, and each provision hereof shall
be valid and shall be enforced to the fullest extent permitted by
law.
(d)
This Agreement shall be binding on and inure to the benefit of the parties
hereto and their respective heirs, executors and administrators, successors and
assigns.
(e)
This Agreement shall not be assignable in whole or in part by either party,
except that the Company may assign this Agreement to and it shall be binding
upon any subsidiary or affiliate of the Company or any person, firm or
corporation with which the Company may be merged or consolidated or which may
acquire all or substantially all of the assets of the Company.
(f) This Agreement is intended to
comply with Section 409A of the Internal Revenue Code and accompanying Treasury
Regulations and guidance and any ambiguous provision shall be construed and
administered in a manner that is compliant with or exempt from the application
of Code section 409A. If any provision of this Agreement would cause the
Employee to incur any additional tax or interest under Code section 409A, the
Company shall, to the extent permitted under 409A and after consulting with the
Employee, reform such provision to comply with 409A. The Agreement shall
be administered in compliance with Section 409A of the Internal Revenue Code and
regulations issued there under to the extent they are applicable.
IN WITNESS WHEREOF, this Agreement has been signed by the
parties hereto as of the date of July 15, 2010.
HEMISPHERX
BIOPHARMA, INC.
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By:
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/s/ Xxxxxx X. Xxxxxx
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Xxxxxx
X. Xxxxxx, Secretary
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By:
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/s/ Xxxxxxx X. Xxxxxx
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Xx.
Xxxxxxx X. Xxxxxx
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