EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.58c
THIS EMPLOYMENT AGREEMENT (the
“Agreement”) is entered into as of the 31st day of December, 2008 by and between
Ore Pharmaceuticals Inc., a Delaware corporation (the “Company”), and Xxxxxx X.
Xxxxxx, Xx. (the “Executive”).
Executive
has served as the Company’s Chief Financial Officer and Treasurer since 1999
under terms of an Executive Employment Agreement dated October 11, 1999 that was
amended by a First Amendment dated as of October 24, 2006 (the “First
Amendment”) and a Second Amendment dated on May 8, 2007 but as of the 23rd day of February,
2007(the “Second Amendment”), a Third Amendment dated as of
January 1, 2008 and a Fourth Amendment dated November 17,
2008 (said agreement and amendments being herein referred to
collectively as the “Prior Agreement”). The Company desires to continue the
services of Executive and Executive desires to continue to perform such services
for the Company on the terms and conditions as set forth in this
Agreement.
NOW,
THEREFORE, in consideration of the mutual promises made below, the parties agree
as follows:
1. Employment,
Duties and Acceptance.
1.1 Employment. (a)
From and after January 1, 2009 (the “Effective Date”), the Company
shall continue to employ the Executive as the Chief Financial Officer and
Treasurer (collectively “CFO”) of the Company upon the terms herein
provided. In such capacity, the Executive shall perform such
executive, financial and management duties and assume such other
responsibilities as may be assigned from time to time by the Company’s Chief
Executive Officer (“CEO”) and/or the Board of Directors and that are
appropriate to his role as CFO. The Executive agrees to continue such
employment and shall perform his duties faithfully and to the best of his
abilities.
(b) On
the Effective Date, this Agreement shall supersede and replace the Prior
Agreement with regard to all terms of employment for the period from the
Effective Date through the end of the term herein specified.
(c) The
Executive shall devote his full working time and creative energies to the
performance of his duties hereunder and will at all times devote such time and
efforts as are reasonably sufficient for fulfilling the significant
responsibilities entrusted to him. So long as such activities, in the
aggregate, do not interfere in a material way with the performance by the
Executive of his duties hereunder, the Executive shall be permitted a reasonable
amount of time to (i) supervise his and his family’s personal, passive
investments and (ii) participate (as board member, officer or volunteer) in
civic, political and charitable activities. In particular, the
Executive currently serves as the Chairman of the Board of Directors of the
Washington County Health System and may continue to serve in that
position throughout the Term of this Agreement. If the Executive wishes to
undertake any outside activities other than those permitted above, including any
activities for which he would receive compensation in any form, the Executive
must obtain prior written approval of the Chairman of the Board of
Directors.
1.2 Place of
Employment. The Executive's principal place of employment
shall be at the Company’s headquarters in Gaithersburg Maryland or at such other
location in Xxxxxxxxxx, Xxxxxx and Xxxxxxxxx Counties in Maryland to
which such headquarters may be relocated, subject to such travel as may be
reasonably required by his employment pursuant to the terms hereof.
1.3 Workweek. This
Agreement contemplates that Executive will work full-time for the Company.
However, If the CEO and CFO mutually agree at any time that his
duties do not require full-time employment for reasons (including because the
Board of Directors decision to not pursue alternative merger partners or secure
additional financing), then (a) his workweek maybe reduced for any period that
full-time employment is not required to four (4) days per week for approximately
thirty (30) hours per week, subject to Executive’s rights to take
holidays under section 3.6 and paid time off under Section 3.5and (b)
his pay and accrual of paid time off would be adjusted for any such
period to seventy –five percent (75%) of the rates normally
applicable to reflect that reduction in workweek. Any such adjustment would not
affect his salary rate for purposes of determining payments or benefits due upon
termination of employment, including payment for accrued but unused paid time
off. If his workweek is reduced as permitted hereby, the CFO and CEO
may agree at any time that Executive would be restored to full-time
employment.
2. Term of
Employment. The Executive’s term of employment with the Company
(the “Term”) under this Agreement shall commence on the Effective Date and
continue thereafter through December 31, 2009 unless earlier terminated by
either party pursuant to Section 4, subject to certain rights upon termination
as provided in Section 4. If Executive’s employment hereunder with
the Company is terminated by the Executive or by the Company, Executive shall
thereby be removed from, and Executive agrees to resign immediately from, all
other positions with the Company and its affiliates and subsidiaries
(collectively the “ORE Group”). If the Company desires to extend the Term, the
Executive agrees to consider in good faith any proposal for continued employment
made by the Company but shall not be under any obligation to agree to any such
proposal.
3. Compensation.
3.1 Salary. As
compensation for all services to be rendered pursuant to this Agreement and
subject to Section 1.3 above, the Company shall pay to the Executive during the
Term a salary at the rate of $275,000.00 per annum (the “Base Salary”) less such
deductions as shall be required to be withheld by applicable tax and other laws
and regulations or as otherwise authorized by the Executive. The Base
Salary is based on full-time employment, but actual pay shall be subject to
adjustment as provided in Section 1.3. The Base Salary shall accrue from and
after the Effective Date, and shall be payable during the Term, in arrears in
equal periodic installments, not less frequently than semi-monthly. The Base
Salary shall be prorated if the Executive is not employed by the Company for an
entire year based on the portion of the year in which Executive is employed on a
full-time basis by the Company.
3.2 Incentive
Compensation. Executive will not be eligible to participate in
any incentive compensation plan established by the Company’s Board of Directors
(the “Board”) or the Compensation Committee of the Board (the “Compensation
Committee”). In lieu thereof, the Executive shall receive Retention Incentive
Payments as described in Section 3.3. Notwithstanding the above, if Executive
becomes entitled to receive payments under the Company’s Executive Severance
Plan, he shall for purposes of payments under that plan only be deemed to be
entitled to a bonus for 2009 upon achievement of 100% of applicable targets
equal to 50% of his annual salary.
3.3 Retention
Incentive Payments. To retain the
services of Executive, the Company shall pay to Executive the following
retention payments, less applicable withholding and authorized
deductions:
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If
Executive continues to be employed through March 31, 2009, within fifteen
days thereafter he shall receive a retention incentive payment
of $91,667.00
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If
Executive continues to be employed through June 30, 2009, within fifteen
days thereafter he shall receive a retention incentive payment
of $91667.00
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If
Executive continues to be employed through September 30, 2009, within
fifteen days thereafter he shall receive a retention incentive
payment of $91,666.00
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If
Executive ‘s employment terminates other than as a
result of termination by the Company without cause, prior to an above date, he
shall not receive the retention payments due for continuation of employment
after the date of his termination. If Executive’s employment is terminated by
the Company without cause prior to any such date, he shall also receive the
retention payments he would have received as if he continued to be
employed by the Company through September 30, 2009, subject to the requirements
of a release as specified in Section 4.7(b).
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In the
event of termination without cause, payment of the retention payments not
previously paid shall be accelerated and shall be made not later than the first
normal Company payday that is at least 15 days after the date on which his
rights to revoke the release required by Section 4.7(b) expire.
Notwithstanding
the above, if the Executive’s workweek is reduced as provided in Section 1.3,
then the payments hereunder shall be adjusted on a pro rata basis for
any portion of the first nine months of 2009 that Executive is not
working full-time.
3.4 Participation
in Benefit Plans. The Executive shall be permitted during the
Term, to the extent eligible, to participate in any group life, medical, dental,
vision, or disability insurance plans, accidental death and dismemberment plan,
401(k) plan, or similar benefit plans of the Company which may be available
generally to other senior executives of the Company, but nothing herein shall
prevent the Company from adding to, changing or eliminating such benefits from
time to time.
3.5 Paid Time
Off. The Executive shall accrue and may use paid time off
(“PTO”) in accordance with the Company’s policies, except that if his workweek
is reduced pursuant to Section 1.3 for any period , his PTO accrual
during such period shall be at a rate which is 75% of the rate applicable under
the Prior Agreement and Company policies, as provided in Section
1.3.
3.6 Holidays. The
Executive shall be eligible for holidays in accordance with the Company’s policy
and schedule.
3.7 Expenses. In
accordance with the Company’s policies, the Executive will be reimbursed for all
ordinary, necessary and reasonable business expenses (including, without
limitation, travel, meetings, dues, subscriptions, fees and educational
expenses) actually incurred or paid by the Executive during the Term in the
proper performance of the Executive's services under this Agreement, upon
presentation of expense statements or vouchers or such other supporting
information as the Company or Board may reasonably require.
3.8 [intentionally
omitted]
3.9 Withholding. The
Company is authorized to withhold from the amount of any Base Salary, Retention
Incentive Payments, bonuses and any other payments or benefits paid or provided
to or for the benefit of the Executive, all sums authorized by the Executive or
required to be withheld by law, court decree, or executive order, including (but
not limited to) such things as income taxes, employment taxes, and employee
contributions to fringe benefit plans sponsored by the Company.
3.10. Change of
Control. The Executive shall continue to be included in the
Company’s Executive Severance Plan (the “Change-of-Control Severance Plan”),
which provides certain benefits if the Executive’s employment is terminated in
connection with a change in control of the Company, provided that to
the extent Executive has earned any Retention Incentive payments as described in
Section 3.3 herein, such payments shall be deemed to be bonus payments under the
Change-of-Control Severance Plan that offset any severance payable
thereunder (including both bonus and 12
months base pay), notwithstanding any language in
the Change-of-Control Severance Plan that limits such offset to bonus
only.
4. Termination.
4.1 General. The employment of
the Executive hereunder may be terminated as provided in this Section
4.
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4.2 Termination
Upon Mutual Agreement. The Company and
the Executive may, by mutual written agreement, terminate this Agreement and/or
the employment of the Executive at any time.
4.3 Death or
Disability of Executive.
(a) The
employment of the Executive hereunder shall terminate upon (i) the death of
the Executive, or (ii) at the option of the Company upon not less than
thirty (30) days prior written notice to the Executive or his personal
representative or guardian, if the Executive suffers a Total Disability (as
defined in Section 4.3(b)
below).
(b) For
purposes of this Agreement, “Total Disability” shall mean (i) if the
Executive is subject to a legal decree of incompetency (the date of such decree
being deemed the date on which such disability occurred), or (ii) the
written determination by a physician reasonably selected by the Executive or his
personal representative or guardian and reasonably acceptable to the Company
that, because of a medically determinable disease, injury or other physical or
mental disability, the Executive is substantially unable to perform his
essential duties, without reasonable accommodation, and that such disability has
lasted for the immediately preceding ninety (90) days and is, as of the date of
written determination, reasonably expected to last an additional ninety (90)
days or longer after the date of determination. Executive agrees to
appear at a medical examination by a physician selected and accepted as
described above and to furnish to such physician such medical information as is
reasonably needed for a determination under this Section 4.3(b). Nothing in
this provision is intended to restrict rights or obligations under the Americans
with Disabilities Act or other applicable law.
(c) Any
leave on account of illness or temporary disability which is short of Total
Disability shall not constitute a breach of this Agreement by the Executive and
in no event shall any party be entitled to terminate this Agreement for Cause
(as defined below) due to any such leave. All physicians selected
hereunder shall be Board certified in an appropriate specialty closely related
to the nature of the disability alleged to exist.
4.4 Termination
For Cause. The Company may,
upon action of the Board and upon written notice to the Executive specifying in
reasonable detail the reason therefor, terminate the employment of the Executive
at any time for Cause (as defined in Attachment A); provided, however, that if
the reason for termination for Cause is susceptible of cure as determined by the
Company, the Executive shall have a period of fifteen (15) business days after
such written notice to effect a cure satisfactory to the Company and, if so
cured, such termination in such instance shall be deemed withdrawn, but any such
withdrawal shall not affect the right of the Company to initiate a
termination for any other cause or in any other instance, including a
recurrence of the circumstances that led to the initial decision to
terminate.
4.5 Termination
Without Cause.
(a) The Company may also
terminate the employment of the Executive without Cause upon 30 days advance
written notice to the Executive, which termination shall constitute a
“Termination Without Cause”. Termination without Cause shall not
include a termination due to death or Total Disability or a resignation by
Executive (other than for “Good Reason”), but shall include an expiration of the
term of this agreement. The Company may limit the activities of the
Executive on behalf of the Company during such thirty day period or assign
transitional or other duties not inconsistent with the position held by the
Executive or provide pay in lieu of such notice.
(b)
Executive may also resign for Good Reason as defined in Attachment B hereto and
any such resignation for Good Reason shall be deemed a Termination Without Cause
by the Company. If Executive claims that his resignation is for Good
Reason, his written notice to the Company must so state and state the
circumstances that he believes constitute Good Reason. If the termination is for
Good Reason, then Executive shall be entitled to receive the same payments and
benefits (subject to the same terms) under Section 4.7 that he would have
received if the Company had terminated his employment without
cause.
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4.6 Termination
by Executive. The Executive may
resign (and thereby terminate his employment under this Agreement) at any time,
by giving not less than thirty (30) days’ prior written notice to the Company,
but the Company after receipt of such notice, may waive all or part of such
notice period, provided that the Company shall pay the Executive salary for such
notice period, whether or not waived.
4.7 Payments
Upon Termination Without Cause.
(a)
If Executive’s employment is terminated by the Company without Cause (including
a termination for Good Reason), the Company shall pay the Executive or provide
the Executive with the following benefits:
(i) The
amounts due and unpaid, if any, under Section 3.3
(ii)
Payment by the Company of the group health insurance premium for post-employment
coverage (including without limitation medical, dental and vision coverage) for
which Executive is eligible, and which the Executive timely elects under COBRA
because of his prior employment by Company for a period equal to the lesser of
(x) twelve (12) months or (y) until Executive becomes eligible for coverage
under a new employer’s group health plan. Such payment will also include
coverage for any dependents of Executive who are eligible for, and timely elect
and remain eligible for, coverage under COBRA for the same period as Executive.
Such payment is for a period that is part of, and not in addition to, the total
period of eligibility for continuation of health insurance benefits to which
Executive, and/or the covered dependents, are entitled under
COBRA. Executive agrees to promptly notify Company when he becomes
eligible for coverage under a new employer’s group health plan
(iii) Outplacement
services paid for and through a program and vendor selected by Company and at a
level appropriate for an executive for a period not to exceed six (6) months,
and in no event costing more than fifteen thousand dollars ($15,000.00), to be
used and completed within twelve (12) months after termination of employment,
unless otherwise agreed in writing by Company, but in no event later than the
end of the second calendar year following the year of
termination. Executive may not elect any payment in lieu of such
outplacement services and such services will only become available after any
release required under subsection (b) below is signed and the revocation period
specified therein has been completed without revocation
(b) Any
payments made or benefits provided under this Section 4.7 will be conditioned
upon execution by Executive of a comprehensive and full release of all claims
arising from or connected with his employment by the Company in such form as may
be specified by the Company (excluding from any such release any rights
Executive may have to (x) indemnification or to insurance coverage with respect
to his actions while employed by the Company, whether by policy, contract or
otherwise, under Directors and officers or other insurance maintained by the
Company or under the Company’s indemnification policies and agreements and
applicable law concerning indemnification, (y) coverage at the Executive's
expense under applicable heath care policies to the extent Executive is entitled
to continued coverage under COBRA) and (z) payment of compensation earned
but not paid prior to termination). Such release shall be
presented to Executive as soon as practicable, and in any event no later than
ten (10) days following Executive's termination of employment. The
release must be signed and returned to Company by Executive no later than
twenty-one (21) days after Executive's receipt of the release, or such longer
time limit stated in the release, and must not be revoked within the period
allowed for revocation as stated in the release in order for Executive to become
entitled to the severance and other benefits hereunder.
(c) Notwithstanding
anything to the contrary above, if the Executive is eligible for and has met the
conditions for receiving cash severance and benefits under the Change-of-Control
Severance Plan, then the provisions set forth in the Change-of-Control Severance
Plan shall apply in lieu of severance and benefits under this Agreement,
including without limitation this Section 4.7. If Executive becomes
entitled to cash severance and other benefits under the Change-of-Control
Severance Plan, , the retention incentive payments described in Sections 3.3 and
4.7(a) of this Agreement shall be credited against the cash severance (including
12 months pay and bonus) and benefits due under the Change-of-Control
Severance Plan. In no event shall the aggregate severance and other
severance benefits actually paid and provided to Executive as the result of a
termination of Executive's employment exceed the greater of the payments and
benefits under (i) Section 4.7(a) of this Agreement or (ii) Section 3 and other
applicable provisions of the Change-of-Control Severance Plan.
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(d) The
Company shall have no further liability to the Executive pursuant to this
Agreement, in the event of termination by the Company in a Termination Without
Cause except as set forth in this Section 4.7 including, without limitation, any
liability to pay the Executive any severance, bonus or any other
compensation.
(e) The
Company also waives, releases and remises (A) any obligation or duty under
applicable law on the part of the Executive to seek or obtain other engagements
or employment or to otherwise mitigate any damages to which the Executive may be
entitled by reason of any termination of this Agreement; and (B) any right in or
claim to any remuneration or compensation received by Executive pursuant to any
engagements or employment subsequent to the termination of this
Agreement.
4.8 Payments upon Termination
for Cause or due to Death or Disability of the Executive
(a) If
the Executive’s employment is terminated (i) by the Company for Cause, or (ii)
by the Executive (other than for Good Reason) , then the Company shall have no
duty to make any payments or provide any benefits to the Executive pursuant to
this Agreement other than payment of the amount of the Executive’s Base Salary
and benefits accrued through the date of termination of his
employment.
(b) Upon termination of
Executive's employment for death or Total Disability, the Company shall pay to
the Executive, or to his guardian or personal representative, as the case may
be, in addition to any insurance or disability benefits to which he may be
entitled under applicable insurance and benefit programs contemplated by Section
3.4 and then in effect, all amounts accrued or vested prior to such
termination. The Company shall have no further liability to the
Executive, guardian or personal representative pursuant to this Agreement,
including, without limitation, any liability to pay the Executive, guardian or
personal representative any severance, bonus or any other
compensation.
4.9 No
Disparaging Comments Upon Termination.
Upon termination of
this Agreement and thereafter, the Executive shall refrain from making any
disparaging remarks about the businesses, services, products, stockholders,
officers, directors or other personnel of the ORE Group.
5. Certain
Covenants of the Executive.
5.1 Necessity
for Covenants. The Executive acknowledges that (i) the
ORE Group (as defined below) is engaged and will in the future be
engaged in the Business as defined below in this Agreement; (ii) his
employment pursuant to this Agreement will give him access to customers and
suppliers of the ORE Group; (iii) his employment will give him access
to confidential information and other trade secrets concerning the
ORE Group’s products, services and the Business and (iv) the
agreements and covenants contained in this Section 5 are essential
to protect the business and goodwill of the ORE Group. As
additional consideration for the Company's entering into this Agreement and
paying the compensation and other benefits at the levels requested by the
Executive, the Executive enters into the following covenants:
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5.2 Definitions.
(a) “Business”
for purposes of this Article 5 shall mean (i) the development, licensing,
manufacture and sale of therapeutic drug compounds identified in the Company’s
SEC filings and press releases, and (ii) any other lines of business from time
to time engaged in by the ORE Group as described in its annual and quarterly
reports filed with the Securities and Exchange Commission.
(b) “ORE Group” for
purposes of this Article
5 shall include the Company, and all of its wholly or majority owned
subsidiaries and affiliates and the successors and assigns of any of the
foregoing.
(c) “Business Contact”
shall mean any (i) licensee that has licensed technology from or
any customer that has purchased goods or services provided by the
ORE Group during the Term or the last 12 months of the Prior
Agreement, (ii) prospective licensee or customer whom the Executive or
persons working for or directly with the Executive has contacted during the Term
for the purpose of endeavoring to license or sell the technologies, goods or
services of the ORE Group to the prospective licensee or customer, or
(iii) provider of goods, services or technology that are material to the
ORE Group.
(d) “Service Area” means
North America, Western Europe and Japan.
(e) “Term” means the term
of employment, whether definite or indefinite, as specified in Section 2
hereof
5.3 Restrictive
Covenants.
5.3.1 Restrictions. During
the Term and for a period of one (1) year after the date (the
“Termination Date”) the Executive's employment hereunder is
terminated (the “Restricted Period”) regardless of whether such
termination is voluntary or involuntary, with or without Cause or by
resignation, the Executive shall not, directly or indirectly, for himself or on
behalf of any other person, firm, corporation or other entity, whether as a
principal, agent, employee, stockholder, partner, officer, member, adviser,
consultant, director, sole proprietor, or otherwise:
(a) call
upon or solicit any Business Contact for the purpose of persuading the Business
Contact to engage the Executive or any other person, firm, corporation or other
entity other than the Ore Group to provide technology licenses or goods or
services which are the same as or similar to those the ORE Group
provided or proposed to provide to the Business Contact or to engage the
Business Contact to provide to any other person, firm, corporation or other
entity licensed technology or goods or services which are the same as or similar
to those the Business Contact provided to the ORE Group or to develop
therapeutic products and technologies that would directly compete with those
being developed by the Ore Group;
(b) solicit,
participate in or promote the solicitation of any person who was employed by the
ORE Group at any time during the twelve (12) months preceding the
Termination Date to leave the employ of the ORE Group, or hire or
engage or assist anyone outside of the Ore Group to hire or engage
any of those persons;
(c) make
any disparaging remarks about the ORE Group’s Business, technology, products,
services or personnel in any manner that is likely to have an adverse effect on
the ORE Group’s Business, technology, products, services or personnel, provided
that Executive may respond accurately and fully to any questions, inquiry or
request for information when required by legal process or in response to an
inquiry from an administrative agency.;
(d) interfere
in any way with the Business, prospects or personnel of the ORE Group
in existence prior to the Termination Date or contemplated by the
ORE Group during such period; or
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(e) render
services in any capacity (other than services unrelated to the Business) to, or
become affiliated with, any person, company or other entity engaged in any
business that competes with the Business within the Service Area;
provided,
however, that the Executive may own, directly or indirectly, solely as an
investment, securities which are publicly traded if the Executive (a) is
not a controlling person of, or a member of a group which controls, the issuer
and (b) does not, directly or indirectly, own 5% or more of any class of
securities of the issuer.
5.3.2 Severability
of Covenants. The Executive acknowledges and agrees that the
Restrictive Covenants are reasonable and valid in geographical and temporal
scope and in all respects. If any court determines that any of the
Restrictive Covenants, or any part thereof, is invalid or unenforceable, the
remainder of the Restrictive Covenants shall not thereby be affected and shall
be given full effect, without regard to the invalid portions.
5.3.3 Blue-Penciling. If
any court determines that any of the Restrictive Covenants, or any part thereof,
is unenforceable because of the duration or geographic scope of such provision,
such court shall have the power to reduce the duration or scope of such
provision, as the case may be, and, in its reduced form, such provision shall
then be enforceable and shall be enforced. If any such court declines
to so revise such covenant, the parties agree to negotiate in good faith a
modification that will make such duration or scope enforceable.
5.4 Rights
and Remedies Upon Breach. If the Executive breaches, or
threatens to commit a breach of, any of the provisions of Section 5.3 (the “Restrictive
Covenants”), the Company shall, in addition to its right immediately to
terminate this Agreement for Cause, have the right and remedy (which right and
remedy shall be independent of others and severally enforceable, and which shall
be in addition to, and not in lieu of, any other rights and remedies available
to the Company under law or in equity) to have the Restrictive Covenants
specifically enforced by any court having jurisdiction, it being acknowledged
and agreed that any such breach or threatened breach could cause irreparable
injury to the Company and that money damages may not provide an adequate remedy
to the Company.
6. Representations
of Executive. The Executive represents and warrants
that:
(a) his employment by the Company
will not (i) violate any non-disclosure agreements, covenants against
competition, or other restrictive covenants or agreements made by the Executive
with, to or for the benefit of any previous employer or partner, or (ii) violate
or constitute a breach or default under, any statute, law, judgment, order,
decree, writ, injunction, deed, instrument, contract, lease, license or permit
to which the Executive is a party or by which the Executive is
bound;
(b) there is
no litigation, proceeding or investigation of any nature (either civil or
criminal) which is pending or, to the best of the Executive's knowledge,
threatened against or affecting the Executive or which would adversely affect
his ability to substantially perform the duties herein; and
(c) he has
received or been given the opportunity to review the provisions of this
Agreement, and the meaning and effect of each provision, with independent legal
counsel of the Executive's choosing.
7. Confidentiality
and Proprietary Inventions Agreement. The provisions set forth
in the Company’s Proprietary Information and Inventions Agreement previously
signed by the Executive and dated October 11, 1998, which is
expressly incorporated herein by reference thereto, shall continue in
effect.
8. Dispute
Resolution.
8.1 Arbitration
Policy. Subject to the Company’s right to seek injunctive or
other equitable relief as specified in Section 5.4 of this Agreement or in the
Proprietary Information and Inventions Agreement, the Parties agree that
arbitration is the required and exclusive forum for the resolution of any and
all disputes between them, including claims arising under statute, common law,
or this Agreement. This mandatory arbitration provision includes
without limitation any claims or actions under Title VII of the Civil Rights Act
of 1964, the Civil Rights Act of 1866 (“Section 1981”), the Americans with
Disabilities Act, the Family and Medical Leave Act, the Age Discrimination in
Employment Act, the Fair Labor Standards Act, the Equal Pay Act, the Employee
Retirement Income Security Act, and any other federal, state or local statute,
law or regulation regarding employment, employment discrimination, terms and
conditions of employment, compensation or termination of
employment. This mandatory arbitration provision includes any dispute
between the Executive and the Company or its parents, subsidiaries and
affiliates, and its and their current and former officers, directors, employees
and agents.
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Any covered dispute
must be submitted to arbitration in accordance with the National Rules for the
Resolution of Employment Disputes of the American Arbitration
Association. Any such arbitration will be conducted in Xxxxxxxxxx
County, Maryland, and will be decided in accordance with and determined by the
laws of the State of Maryland and/or applicable federal law. The
Executive specifically agrees that the Company may seek specific performance of
this provision, as well as other injunctive relief, from the state or federal
courts in Maryland. The arbitrator shall not have the authority to
award punitive damages, costs or attorneys’ fees to either Party except where
expressly provided for by the applicable law.
Except as otherwise
provided by applicable law, the administrative costs of the arbitration (filing
fees, cost for the arbitration site, other AAA fees, arbitrator’s fee) shall be
divided equally between the parties. In the event that the National
Rules for the Resolution of Employment Disputes of the American Arbitration
Association, any express statutory provisions, or controlling case law conflicts
with this allocation and requires the payment of administrative costs of
arbitration by the Company, the administrative costs of arbitration will be paid
by the Company. The fees and expenses of any witness shall be paid by the Party
requiring the presence of such witness. Each Party shall bear its own
costs and expenses in all other respects. The resolution of any
dispute achieved through such arbitration shall be final and binding and
enforceable by a court of competent jurisdiction.
8.2 No Jury
Trial. NEITHER PARTY SHALL ELECT A TRIAL BY JURY IN ANY
ACTION, SUIT, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN ANY WAY CONNECTED
WITH THIS AGREEMENT.
8.3 Personal
Jurisdiction. Both parties agree to submit to the jurisdiction
and venue of the state courts in Xxxxxxxxxx County, Maryland as to matters
involving enforcement of this Agreement, including any award under an
arbitration proceeding.
9. Other
Provisions.
9.1 Notices. Any
notice or other communication required or which may be given hereunder shall be
in writing and shall be delivered personally, telegraphed, telexed, sent by
facsimile transmission, sent by nationally recognized overnight courier service
such as FedEx or UPS or sent by certified, registered or express mail, postage
paid, and shall be deemed given when so delivered personally, telegraphed,
telexed or sent by facsimile transmission or, if sent by courier on the second
business after delivery by the courier service or, if mailed, four days after
the date of mailing, as follows:
9
(a)
if to the Company, to:
Ore Pharmaceuticals
Inc.
00 Xxxx Xxxxxxx Xxxx
Xxxx
Xxxxxxxxxxxx, XX
00000
Attention:
President
with copies
to:
Xxxxx Xxxxxxx,
Esquire
Xxxxxxx
LLP
000 0xx Xxxxxx,
XX
Xxxxxxxxxx,
XX 00000
(b)
if to the Executive, to:
Xxxxxx X. Xxxxxx,
Xx.
0000 Xxxxxxxxxx
Xx
Xxx Xxxxxx, XX
00000
Any party may by
notice given in accordance with this Section to the other party designate
another address or person for receipt of notices hereunder.
9.2 Entire
Agreement. This Agreement contains the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior agreements and understandings, written or oral, with respect
thereto.
9.3 Waivers
and Amendments. This Agreement may be amended, modified,
superseded, canceled, renewed or extended, and the terms and conditions hereof
may be waived, only by a written instrument signed by the Executive and a duly
authorized officer of the Company (each of the Executive and Company, in such
capacity, a party) or, in the case of a waiver, by the party waiving
compliance. No delay on the part of any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof, nor shall
any waiver on the part of any party of any right, power or privilege hereunder,
nor any single or partial exercise of any right, power or privilege hereunder,
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege hereunder.
9.4 Governing
Law. This Agreement has been negotiated and is to be performed
in the State of Maryland, and shall be governed and construed in accordance with
the laws of the State of Maryland applicable to agreements made and to be
performed entirely within such State, without regard to conflicts of laws
provisions.
9.5 Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same
instrument.
9.6 Confidentiality. Neither
party shall disclose the contents of this Agreement to any person, firm or
entity, except the agents or representatives of the parties, or except as
required by law.
9.7 Word
Forms. Whenever used herein, the singular shall include the
plural and the plural shall include the singular. The use of any
gender or tense shall include all genders and tenses.
9.8 Headings. The
Section headings have been included for convenience only, are not part of this
Agreement, and are not to be used to interpret any provision
hereof.
10
9.9 Binding
Effect and Benefit. This Agreement shall be binding upon and
inure to the benefit of the parties, their successors, heirs, personal
representatives and other legal representatives. This Agreement may
be assigned by the Company to any entity that buys substantially all of the
Company's assets or to any affiliate of the Company with the consent of the
Executive that shall not be unreasonably withheld. However, the
Executive may not assign this Agreement without the prior written consent of the
Company.
9.10 Separability. The
covenants contained in this Agreement are separable, and if any court of
competent jurisdiction declares any of them to be invalid or unenforceable, that
declaration of invalidity or unenforceability shall not affect the validity or
enforceability of any of the other covenants, each of which shall remain in full
force and effect.
9.11 Compliance
with Code Section 409A. It
is the intent of this Agreement to comply with, and/or meet an exemption from,
the requirements of Section 409A of the Internal Revenue Code of 1986, as
amended, and any rulings and regulations promulgated thereunder (collectively,
the “Code”), and any ambiguities herein will be interpreted and this agreement
will be administered to so comply. References to the date of a
termination of employment in this Agreement in connection with the payment of
severance hereunder shall mean the date of a "separation from service" within
the meaning of Code Section 409A(a)(2)(A)(i). If the Executive is a
“specified employee” within the meaning of Code Section 409A(a)(2)(B)(i) at the
time of the Executive’s termination of employment, any nonqualified deferred
compensation subject to Code Section 409A that would otherwise have been payable
under this Agreement as a result of, and within the first six (6) months
following, the Executive’s "separation from service" and not by reason of
another event under Code Section 409A(a)(2)(A), will become payable six (6)
months and one (1) day following the date of the Executive’s separation from
service or, if earlier, the date of Executive’s death.
9.12 Prior
Agreement:. This agreement shall, as of the Effective Date,
supersede and replace all prior employment agreements between the Executive and
the Company, provided that any such former agreement shall remain effective as
to periods prior to the Effective Date and Company shall remain liable to
Executive for any salary, incentive compensation or other payments or benefits
earned prior to the Effective Date until paid or provided.
IN WITNESS
WHEREOF, the parties, intending to be legally bound, have executed this
Agreement as of the last date of signature below.
ORE PHARMACEUTICALS INC.
January
12, 2009
By:
/s/ Xxxxxxx X. Xxxxxxx,
III
(SEAL)
Chief
Executive Officer
EXECUTIVE:
January
14,
2009
/s/ Xxxxxx X. Xxxxxx, Xx.
(SEAL)
11
Attachment
A
Definition
of "Cause"
"Cause"
shall mean:
|
i)
|
commission
of an act or an omission that the Board of Directors determines would
constitute:
|
|
a)
|
a
felony or
|
|
b)
|
a
misdemeanor which, in the Board of Director’s reasonable opinion, could
have a material adverse effect on the Company's business, financial
condition, prospects or reputation or the Executive's performance of his
duties, under the laws of the United States or of any
state
|
|
ii)
|
a
material breach by the Executive of any agreement entered into between the
Executive and the Company including without limitation the violation by
the Executive of the provisions of the Proprietary Information and
Inventions Agreement or any restrictive covenants in this Agreement
dealing with the same subject matter or a material violation of the
Company's Code of Ethics;
|
|
iii)
|
willful
misconduct by the Executive or gross negligence of the Executive which
could reasonably be expected to have a material adverse impact on the
Company;
|
|
iv)
|
a
material failure of the Executive in the performance of the Executive’s
duties provided that, if susceptible of cure as determined by the Board of
Directors, notice is provided and Executive does not cure such failure
within fifteen (15) business days after the date of such notice in a
manner satisfactory to the Board of Directors;
or
|
|
v)
|
engagement
in any activity that constitutes a material conflict of interest with the
Company and for which no waiver has been obtained from the Board of
Directors.
|
With
respect to any criminal act, the Board of Directors may base such a
determination on facts available to it or on an arrest or charges by an
appropriate government authority (without liability if the Executive is
subsequently acquitted or the prosecution is terminated without conviction) and
may, at its option in lieu of immediate termination, suspend the Executive, with
or without pay in the discretion of the Board of Directors, in lieu of immediate
termination in the event of any criminal charges, pending additional
information, criminal conviction or other action enabling a final decision on
whether termination should be “for cause”.
12
Attachment
B
Definition
of “Good Reason”
Good
reason hereunder means that the Executive voluntarily terminates his employment
with the Company following the initial existence of one or more of the following
conditions arising without the consent of the Executive:
(i) A
material diminution in the Executive’s base compensation.
(ii) A
material diminution in the Executive’s authority, duties, or responsibilities
other than as contemplated by Section 1 of this Agreement.
(iii) A
material diminution in the authority, duties, or responsibilities of the
supervisor to whom the Executive is required to report, including a requirement
that an Executive report to a corporate officer or employee instead of reporting
directly to the Board of Directors (if the Executive previously reported
directly to the Board of Directors) other than as contemplated by Section 1 of
this Agreement.
(iv) A
material change in the geographic location at which the Executive must perform
the services.
(v) Any
other action or inaction that constitutes a material breach by the Company of
the agreement under which the Executive provides services.
Under this
definition of Good Reason, the Executive must provide notice to the Company of
the existence of one or more of the conditions described in (i) through (v)
above within a period not to exceed ninety (90) days of the initial existence of
the condition, upon the notice of which the Company will have a period of at
least thirty (30) days during which it may remedy the condition. In
the event the Company remedies the condition specified in such a notice, the
condition shall not be grounds for a termination for Good Reason. A
termination for Good Reason meeting the above requirements will be treated the
same hereunder as a Termination Without Cause.
13
