EMPLOYMENT AGREEMENT
Exhibit 4.6
This EMPLOYMENT AGREEMENT (“Agreement”) made and entered into as of the 17th day of
March, 2008, by and between InNexus Biotechnology, Inc.(the “Company”), a Canadian
corporation, and Xxxx Xxxxxx (the “Executive”);
WHEREAS, the Company desires to secure the long-term employment of the Executive as its
President and Chief Executive Officer;
WHEREAS, the Executive is willing to commit himself to be employed by the Company on the terms
and conditions herein set forth and thus to forego opportunities elsewhere; and
WHEREAS, the parties desire to enter into this Agreement, as of the Effective Date, as
hereinafter defined, setting forth the terms and conditions for the employment relationship of
the Executive with the Company during the Employment Period (as hereinafter defined).
NOW, THEREFORE, IN CONSIDERATION of the premises, and the covenants and agreements set
forth below, it is hereby agreed as follows:
1. Employment and Term.
(a) Employment. The Company agrees to employ the Executive, and the Executive agrees to be
employed by the Company, in accordance with the terms and provisions of this Agreement during the
term hereof (as described below).
(b) Term. The term of this Agreement shall commence as of February 16, 2008 (the “Effective
Date”) and shall continue for a period of four years or until terminated in accordance with
Section 4 hereof (the “Employment Period”).
2. Duties of Executive.
(a) The Executive shall serve as President and Chief Executive Officer of the Company and
shall report to the Company Board of Directors (the “Board”). The Executive shall perform such
duties and services pertaining to such position as reasonably consistent with the duties and
authority of officers holding comparable positions in similar businesses of similar size in the
United States. The Executive shall have management responsibility in connection with the selection,
retention and termination of Company employees and outside consultants, contractors, professionals
and service providers and the development of scientific research projects and the sale of products,
subject to the overall authority of the Board. The Executive shall use his best efforts to carry
out such responsibilities faithfully and efficiently. The Executive’s services shall be performed
primarily at the Company’s headquarters located at the Mayo Clinic “MCCRB” Research Facility in
Scottsdale, Arizona.
(b) During the Employment Period, and excluding any periods of vacation and sick leave to
which the Executive is entitled, the Executive shall devote substantially all of his business time,
energy and best efforts to the business and affairs of the Company. The Executive may not engage,
directly or indirectly, in any other business, investment or activity that interferes with the
Executive’s performance of his duties hereunder, is contrary to the interests of the Company, or
requires any significant portion of the Executive’s business time. It shall not be considered a
violation of the foregoing for the Executive to serve on corporate, industry, civic or charitable
boards or committees, so long as such activities do not materially interfere with the performance
of the Executive’s responsibilities as an employee of the Company in accordance with this
Agreement. The Executive may serve on boards of directors of up to three non-competing for-profit
businesses which do not materially interfere with his duties hereunder.
3. Compensation.
(a) Salary. The Executive’s annual base salary (the “Annual Base Salary”), payable in
accordance with the Company’s general payroll practices shall be at the annual rate of
$333,683. The Board shall review such base salary at least annually and may from time to
time direct such upward adjustments in Annual Base Salary as the Board deems to be
necessary or desirable, including, without limitation, adjustments in order to reflect
surveys of compensation for comparable positions at other companies. The Annual Base
Salary shall not be reduced after any increase thereof. Any increase in the Annual Base
Salary shall not serve to limit or reduce any other obligation of the Company under this
Agreement.
(b) Incentive Compensation. During the Employment Period, the Executive shall be
eligible to receive an annual cash bonus under an incentive plan to be developed by the
Compensation Committee of the Board (“Incentive Plan”). Such incentive compensation will
be payable upon the achievement of performance goals determined in advance by mutual
agreement of the Board and the Executive. The target opportunity under the Incentive
Plan is to be calculated at seventy percent (70%) of the Annual Base Salary. Written
performance goals under the Incentive Plan shall be determined within the first thirty
(30) days of the beginning of each fiscal year.
(c) Retirement and Welfare Benefit Plans. In addition to the compensation under
this Section, during the Employment Period and for so long as the Executive is employed
by the Company, he shall be immediately eligible to participate in all other savings,
retirement and welfare plans, practices, policies and programs applicable generally to
employees and/or senior executive officers of the Company in accordance with the terms
of such plans, all on a basis no less favorable than for any other senior executive of
the Company. The Company reserves the right to modify, eliminate or add to its
retirement and welfare benefit plans, practices and policies at any time in its sole
discretion.
(d) Stock options. The Company shall grant the Executive 333,683 stock options of
Company common stock on the Effective Date, pursuant to the terms of the Company’s Stock
Option Plan (the “Option Plan”). The options shall vest ratably over the eighteen months
following the Effective Date, provided that Executive remains employed by the Company on
such dates. In addition, the Company shall grant the Executive options for not less than
333,683 shares of the Company’s common stock on the first, second, third and fourth
anniversaries of the Effective Date. For purposes of this Section, the “Grant Date” will
be the “Effective Date” of this agreement and on the “first, second, third and fourth
anniversary” of the Effective Date. The options shall vest ratably over the eighteen
months following the Grant Date, provided that Executive remains employed by the Company
on such dates, subject to any limitations under the Option Plan. Option grants following
the first, second, third and fourth anniversary of the Effective Date shall be made in
the discretion of the Board. The exercise price for each option granted pursuant to this
Section will be per the Company’s Stock Option Plan.
(e) Expenses. The Company shall reimburse the Executive for all expenses, including
those for travel and entertainment and for the use of his vehicle, including payment of
vehicle lease, properly incurred by him in the performance of his duties hereunder,
subject to any reasonable policies established from time to time by the Board.
(f) Fringe Benefits. During the Employment Period and so long as the Executive is
employed by the Company, he shall be entitled to receive vacation and fringe benefits in
accordance with Company plans, practices, programs and policies, commensurate with his
position, which benefits shall be at least the same as those received by any senior
executive officer of the Company; provided, however, the Company reserves the right to
modify, eliminate or add to its fringe benefits at any time in its sole discretion. For
purposes of the Company’s sick leave policy, medical and life insurance benefits and
participation in retirement programs, the Executive’s years of service shall be deemed
to have four years as of October 1, 2006.
(g) Continuing Education Benefit. During the Employment Period and for sixty (60)
months following termination of employment by the Company with or without cause or by
the Executive, the Company will sponsor the Executive in the Harvard Business School’s
Advanced Management Program (AMP) or a program of the Executive’s choice equivalent or
better than AMP and shall be entitled to receive full reimbursement, within ten (10)
days of payment by Executive for all tuition, supplies, travel and related costs and
expenses.
4. Termination of Employment.
(a) Death. The Executive’s employment shall terminate automatically upon the Executive’s
death during the Employment Period.
(b) Disability. The Executive shall be relieved of his position as President and Chief
Executive Officer of the Company automatically upon the Executive being unable to
perform the material duties of his position due to physical or mental illness or injury
for a period of 60 consecutive days, or for 90 days within any one-year time period and
his employment shall terminate automatically 120 days after the date that he is relieved
of his position.
(c) By the Company for Cause. For purposes of this Agreement, “Cause” shall mean (i)
conduct which is a material breach of this Agreement and is not cured within 30 days
after written notice to Executive or willfully repeated thereafter, (ii) conduct which
is a material violation of Company policies; (iii) willful failure to perform
substantially all of Executive’s duties as lawfully delineated by the Board; (iv)
conduct that constitutes fraud, gross negligence of willful misconduct; or (v) the
Executive is convicted of, or enters a plea of guilty to any felony or other criminal
offense involving moral turpitude. The Company, by action of the Board, may terminate
the Executive’s employment during the Employment Period for Cause.
(d) By the Company without Cause. During the term of this Agreement, the Company, by
action of the Board, may terminate the Executive’s employment for any reason other than
for Cause during the Employment Period upon 120 days advance written notice.
(e) By the Executive. The Executive may terminate his employment during the
Employment Period for any reason upon 60 days advance written notice to the Board.
5. Obligations of the Company upon Termination.
(a) Obligations upon Termination by the Company or the Executive. If, during the Employment
Period, the Executive’s employment shall terminate for any reason, the Company shall pay to the
Executive a lump sum amount in cash equal to the sum of (A) the Executive’s salary at the rate of
the Annual Base Salary earned through the date of Termination to the extent not theretofore paid,
(B) any earned but unpaid annual cash bonus or other incentive award, and (C) accrued but unpaid
vacation pay. In addition, the Company shall provide benefit continuation or conversion rights
(including COBRA) as provided under Company benefit plans and vested benefits under Company benefit
plans. The amounts specified in this Section shall be paid within 10 days after the date of
Termination.
(b) Obligations upon Termination by the Company without Cause. In the event of Termination by
the Company without cause, in addition to the amounts and benefits set out in Section 5(a), the
Company shall pay to the Executive (A) Annual Base Salary and annual cash bonus described in
Section 3 of this Agreement at the target level payable monthly for forty-eight (48) months
following the termination date; (B) a lump sum amount, in cash, equal to the annual cash bonus
described in Section 3(b) of this Agreement at the target level for the calendar year that includes
the termination date multiplied by a fraction the numerator of which shall be the number of days
from the beginning of such year to and including the termination date and the denominator of which
shall be 365, which calculation shall be based on the terms of the Company’s incentive compensation
plan, assuming that all performance goals in effect on the termination date have been met at the
target level for such year, such amount to be paid within 10 days of such termination date; (C)
executive level career transition assistance services by a firm designated by the Executive (up to
a maximum of $15,000); (D) full vesting of any unvested stock options with such options to be
exercisable for the remaining term of the option or one year from the termination date, whichever
occurs first; (E) full vesting of any shares of restricted stock and/or warrants and elimination of
any restrictions, and (F) continuation of medical benefits to the Executive and/or the Executive’s
family at least equal to those which would have been provided had the Executive remained employed
for forty-eight (48) months after the termination date, such benefits to be in accordance with the
most favorable medical benefit plans, practices, programs or policies of the Company as in effect
and applicable to any senior executive officer of the Company and his or her family immediately
preceding the termination date, provided, however, that if the Executive becomes employed with
another employer and is eligible to receive medical benefits under another employer-provided plan,
the benefits under the Company’s medical benefits plans shall be secondary to those provided under
such other plan during such applicable period of eligibility.
(c) Termination Following a Change of Control. In the event that Executive’s employment is
terminated by the Company without cause or the Executive terminates his employment within 24 months
of a change of control of the Company, or if Executive voluntarily terminates his employment within
the 120-day period commencing on the first anniversary of a change of control of the Company, in
addition to any amounts that Executive is entitled to receive under Section 5(a) and in lieu of any
amounts Executive would been entitled to receive under Section 5(b), Executive shall receive: (A)
the Applicable Percentage (as defined below) of his Annual Base Salary and annual cash bonus
described in Section 3 of this Agreement at target level payable in an immediate single lump sum
payment; (B) a lump sum amount, in cash, equal to the annual cash bonus described in Section 3 of
this Agreement at target level for the calendar year that includes the date of Termination
multiplied by a fraction,
the numerator of which shall be the number of days from the beginning of such calendar year to and
including the date of termination and the denominator of which shall be 365, which calculation
shall be based on the terms of the Company’s incentive compensation plans, assuming that all
performance goals in effect on the date of termination have been met at the target level for such
year, such amount to be paid within 10 days of such termination date; (C) continued medical
benefits to the Executive and/or the Executive’s family for forty-eight (48) months, such benefits
to be in accordance with the most favorable medical benefit plans, practices, programs or policies
of the Company as in effect and applicable to any senior executive officer of the Company and his
or her family immediately preceding the termination date, provided, however, that if the Executive
becomes employed with another employer and is eligible to receive medical benefits under another
employer-provided plan, the benefits under the Company’s health insurance plans shall be secondary
to those provided under such other plan during such applicable period of eligibility; (D) executive
level career transition assistance services by a firm designated by the Executive (up to a maximum
of $15,000); (E) full vesting of any unvested stock options with such options to be exercisable for
the remaining term of the stock options or one year from the termination date, whichever occurs
first; and (F) full vesting of all stock options, shares of restricted stock and/or warrants and
elimination of any restrictions. As used in this Section, with respect to a change of control
occurring prior to the fourth anniversary of the Effective Date, the “Applicable Percentage” shall
be 400 percent and the “Applicable Time Period” shall be forty-eight (48) months.
A “change of control” of the Company shall be deemed to have occurred as of the first day
that any one or more of the following conditions shall have been satisfied:
(i) Except as provided herein, any person and/or entity (as such term is defined in
Section 3(a)(9) of the Securities and Xxxxxxxx Xxx 0000, as amended (the “Exchange
Act”), and used in Sections 13(d) and 14(d) thereof, including a “group” as defined
in Section 13(d) thereof) (a “Person”) is or becomes the beneficial owner (as such
term is described in
Rule 13d-3 of the General Rules and Regulations under the
Exchange Act), directly or indirectly, of securities of the Company not including in
the securities beneficially owned by such Person any securities acquired directly
from the Company or its Affiliates, other than in connection with the acquisition by
the Company or its affiliates of a business, representing twenty percent (20%) or
more of either the then outstanding shares or the combined voting power of the
Company’s then outstanding securities; or
(ii) The consummation (i.e., closing) of an agreement in which the Company agrees to
merge or consolidate with any other entity, other than a merger or consolidation
which would result in the voting securities of the Company outstanding immediately
prior to such merger or consolidation continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving entity or
any parent thereof), in combination with the ownership of any trustee or other
fiduciary holding securities under an employee benefit plan of the Company, greater
than twenty percent (20%) of the combined voting power of the voting securities of
the Company or such surviving entity or any parent thereof outstanding immediately
after such merger or consolidation; or a merger or consolidation effected to
implement a recapitalization of the Company (or similar transaction) in which no
Person is or becomes the beneficial owner, directly or indirectly, of securities of
the Company (not including in the securities beneficially owned by such Person any
securities acquired directly from
the Company or its affiliates, other than in connection with the acquisition by the
Company or its affiliates of a business) representing twenty percent (20%) or more
of either the then outstanding shares of the Company or the combined voting power of
the Company’s then outstanding securities; or
(iii) The consummation of a plan of complete liquidation or dissolution of the Company; or an
agreement for the sale or disposition by the Company of all or substantially all of the Company’s
assets, other than a sale or disposition by the Company of all or substantially all of the
Company’s assets to an entity, greater than thirty percent (30%) of the combined voting power of
the voting securities of which are owned by Persons in substantially the same proportions as their
ownership of the Company immediately prior to such sale or disposition.
Notwithstanding the foregoing, a change of control of the Company shall not be deemed to have
occurred if there is consummated any transaction or series of integrated transactions immediately
following which the record holders of the voting securities of the Company immediately prior to
such transaction or series of transactions continue to have substantially the same proportionate
ownership in an entity which owns all or substantially all of the assets of the Company immediately
following such transaction or series of transactions.
6. Non exclusivity of Rights.
Except as provided in Section 6 and the last sentence of this Section, nothing in this
Agreement shall prevent or limit the Executive’s continuing or future participation in any benefit,
plan, program, policy or practice provided by the Company and for which the Executive may qualify
(except with respect to any benefit to which the Executive has waived his rights in writing), nor,
except as provided in Sections 5 and 16(d), shall anything herein limit or otherwise affect such
rights as the Executive may have under any other contract or agreement entered into after the
Effective Date with the Company. Amounts which are vested benefits or which the Executive is
otherwise entitled to receive under any benefit, plan, policy, practice or program of, or any
contract or agreement entered into with, the Company shall be payable in accordance with such
benefit, plan, policy, practice or program or contract or agreement except as explicitly modified
by this Agreement. Notwithstanding the foregoing, the benefits payable upon Termination hereunder
shall be in lieu of any severance pay or benefits under any other severance plan, policy or
practice of the Company.
7. Indemnification.
The Company shall indemnify the Executive pursuant to the Company’s bylaws and the articles of
incorporation. In addition, the Company shall maintain directors and officers’ liability insurance
coverage of not less than $15,000,000 covering the Executive during the term of employment and
thereafter, so long as the Company elects to continue such coverage for its active officers and
directors. Failure by the Company to maintain not less than $15,000,000 directors and officers’
insurance will constitute a material breach under this Agreement.
8. Confidential Information.
The Executive agrees not to disclose during the term hereof or thereafter any of the Company’s
confidential or trade secret information, except as required by law. The Executive recognizes that
the Executive shall be employed in a sensitive position in which, as a result of a
relationship of trust and confidence, the Executive will have access to trade secrets and
other highly confidential and sensitive information. The Executive further recognizes that the
knowledge and information acquired by the Executive concerning the Company’s intellectual property,
materials regarding employer/employee contracts, customers, pricing schedules, advertising and
interviewing techniques, manuals, systems, procedures and forms represent the most vital part of
the Company’s business and constitute by their very nature, trade secrets and confidential
knowledge and information. The Executive hereby stipulates and agrees that all such information and
materials shall be considered trade secrets and confidential information. If it is at any time
determined that any of the information or materials identified in this paragraph 8 are, in whole or
in part, not entitled to protection as trade secrets, they shall nevertheless be considered and
treated as confidential information in the same manner as trade secrets, to the maximum extent
permitted by law. The Executive further agrees that all such trade secrets or other confidential
information, and any copy, extract or summary thereof, whether originated or prepared by or for the
Executive or otherwise coming into the Executive’s knowledge, possession, custody, or control,
shall be and remain the exclusive property of the Company.
9. Conflict of Interest.
The Executive acknowledges and agrees that he owes a fiduciary duty of loyalty, fidelity and
allegiance to act at all times in the best interests of the Company and to do no act which would
injure the Company’s business, its interests or its reputation. It is agreed that any direct or
indirect interest in, connection with, or benefit from any outside activities, particularly
commercial activities, which interest might in any way adversely affect the Company or any of its
affiliates, involves a possible conflict of interest. In keeping with the Executive’s fiduciary
duty to the Company, the Executive agrees that he shall not knowingly become involved in a conflict
of interest with the Company affiliates, or upon discovery there of, allow such a conflict to
continue. Moreover, the Executive agrees that he shall disclose to the Board any facts which might
involve such a conflict of interest that has not been approved by the Board. The Executive and the
Company recognize that it is impossible to provide an exhaustive list of actions or interests which
constitute a conflict of interest. Moreover, the Executive and the Company recognize there are many
borderline situations. In some instances, full disclosure of facts by the Executive to the Board
may be all that is necessary to enable the Executive, the Company or its affiliates to protect its
interests. In other situations, if no improper motivation appears to exist and the interests of the
Company or its affiliates have not suffered damage, prompt elimination of the outside interest will
suffice. In still others, it may be necessary for the Company to terminate the employment
relationship. The Company and the Executive agree that the Company’s determination as to whether a
conflict of interest exists shall be conclusive. The Company reserves the right to take such action
as, in its judgment, will end the conflict.
10. Non solicitation.
During the period of his business affiliation with, or employment by, the Company and for a
period of one year after the Executive’s termination of employment for any reason whatsoever, the
Executive will not directly or indirectly, individually or as a consultant to, or as employee,
officer, director, stockholder, partner or other owner or participant in any business entity other
than the Company, solicit or endeavor to entice away from the Company, or otherwise materially
interfere with the business relationship of the Company with, (i) any person who is, or was within
the 12-month period immediately prior to the termination of the Executive’s business affiliation
with or employment by the Company, employed by or associated with the Company or (ii) any person or
entity who is, or was within the 12-month period
immediately prior to the termination of the Executive’s business affiliation with or
employment by the Company, a customer or client of the Company.
11. Assignment by Executive Barred.
(a) Assignment by Executive. This Agreement is personal to the Executive and without the prior
written consent of the Company shall not be assignable by the Executive otherwise than by will or
the laws of descent and distribution. This Agreement shall inure to the benefit of and be
enforceable by the Executive’s legal representatives. Without the prior written consent of the
Executive, no assignment of this Agreement by the Company or any successor of the Company shall
relieve the assignor of its financial responsibility for performance of the Company’s obligations
hereunder.
12. Successors and Assigns of Company.
This Agreement shall inure to the benefit of and be binding upon the Company, its successors
and assigns.
13. Disputes.
(a) Arbitration. The Company and the Executive agree that if a dispute arises out of or is
related to this Agreement or Executive’s employment by the Company, such dispute shall, if not
earlier resolved by negotiations of the parties, be submitted to binding arbitration by a single
arbitrator under the American Arbitration Association National Rules for Resolution of Employment
Disputes in Maricopa County, Arizona. Either party may provide written notice to the other party
that the dispute is not able to be resolved by negotiation and such notifying party shall then
contact the American Arbitration Association for appointment of an arbitrator to resolve such
dispute. Attorneys’ fees and costs shall be awarded to the prevailing party as determined by the
arbitrator.
(b) Mitigation. In no event shall the Executive be obligated to seek other employment or take
any other action by way of mitigation of the amounts (including amounts for damages for breach)
payable to the Executive under any of the provisions of this Agreement and, except as provided in
Section 6, such amounts shall not be reduced whether or not the Executive obtains other employment.
14. Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of the State of
Arizona, without reference to its principles of conflict of laws. The captions of this Agreement
are not part of the provisions hereof and shall have no force or effect. This Agreement may not be
amended, rescinded, modified, repealed, waived, extended or revoked except by an agreement in
writing signed by the party against whom enforcement of such amendment, rescission, modification,
repeal, waiver, extension or revocation is sought. No person, other than pursuant to a resolution
of the Board or a committee there of, shall have authority on behalf of the Company to agree to
amend, modify, repeal, waive, extend or revoke any provision of this Agreement or anything in
reference thereto.
15. Notices.
All notices and other communications hereunder shall be in writing and shall be given by hand
delivery to the other party or by registered or certified mail, return-receipt requested, postage
prepaid, addressed, in either case, at the Company’s headquarters or to such other address as
either party shall have furnished to the other in writing in accordance herewith. Notices and
communications shall be effective when actually received by the addressee.
16. Miscellaneous.
(a) Severability. The invalidity or unenforceability of any provision of this Agreement shall
not affect the validity or enforceability of any other provision of this Agreement.
(b) Withholding. The Company may withhold from any amounts payable under this Agreement such
taxes as shall be required to be withheld pursuant to any applicable law or regulation.
(c) No Waiver. The Executive’s or the Company’s failure to insist upon strict compliance with
any provision hereof or any other provision of this Agreement or the failure to assert any right
the Executive or the Company may have hereunder, including, without limitation, the right of the
Executive to terminate this Agreement, or the right of the Company to terminate the Executive’s
employment for Cause pursuant to this Agreement shall not be deemed to be a waiver of such
provision or right or any other provision or right of this Agreement.
(d) Entire Agreement. This instrument contains the entire agreement of the Executive, the
Company or any predecessor or subsidiary thereof with respect to the subject matter hereof,
and may be modified only by a writing signed by the parties hereto. All promises,
representations, understandings, arrangements and prior agreements, are merged herein and
superseded hereby. Any agreement with regard to severance benefits entered into after the
Effective Date shall be effective only if it expressly references this Agreement.
(e) Conflicts. In the event of any difference between the terms of this Agreement and the
terms of any Company benefit, option or other plan or policy, the terms of this Agreement
shall control, unless such terms violate applicable law, or would require shareholder
approval or would cause the Company to be in material breach of its obligations under such
other benefit, option or other plan or policy. The Company shall not amend any benefit,
option or other plan or policy in a manner that would cause the agreements set forth herein
to be nullified, provided that nothing herein shall limit the Company’s discretion in
establishing, maintaining and amending its generally applicable welfare benefit programs
such as health coverage.
(f) Survivorship. The respective rights and obligations of the parties hereunder shall survive
any termination of this Agreement to the extent necessary to the intended preservation of such
rights and obligations.
(g) Headings. All descriptive headings of sections and paragraphs in this Agreement are
intended solely for convenience, and no provision of this Agreement is to be construed by reference
to the heading of any section or paragraph.
(h) Counterparts. This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same instrument.
(i) Construction. The parties acknowledge that this Agreement is the result of arm’s-length
negotiations between sophisticated parties each afforded representation by legal counsel. Each and
every provision of this Agreement shall be construed as though both parties participated equally in
the drafting of same, and any rule of construction that a document shall be construed against the
drafting party shall not be applicable to this Agreement.
IN WITNESS WHEREOF, the Executive and, pursuant to due authorization from its Board of
Directors, the Company have caused this Agreement to be executed as of the day and year first above
written.
By: |
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| INNEXUS BIOTECHNOLOGY INC. | ||||
By: |
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