NEUROBIOLOGICAL TECHNOLOGIES, INC. EMPLOYMENT AGREEMENT
Exhibit 10.11
NEUROBIOLOGICAL TECHNOLOGIES, INC.
THIS EMPLOYMENT AGREEMENT (the “Agreement”) is made and
entered into as of June 10, 2002 by and between NEUROBIOLOGICAL TECHNOLOGIES, INC., a Delaware corporation (“NTI”) and Xxxx X. Xxxxxxx (“Xxxxxxx”).
BACKGROUND
A. NTI desires to continue to retain
the services of Xxxxxxx as President and Chief Executive Officer of NTI, commencing June 10, 2002 (the “Effective Date”).
X. Xxxxxxx is willing to be employed by NTI on the terms and subject to the conditions set forth in this Agreement.
X. Xxxxxxxxx currently employed as President and Chief Executive Officer. It is the intent of the parties to induce Xxxxxxx’x commitment to the Term specified in this Agreement
in exchange for NTI’spayment of the RetentionBonus, and that the terms of this Agreement control Xxxxxxx’scontinued employment.
THE PARTIES AGREE AS FOLLOWS:
1. Positions and
Duties.
1.1 President and Chief Executive
Officer. Xxxxxxx shall be employed by NTI as its President and Chief Executive Officer, and NTI agrees to employ and retain Xxxxxxx in such capacity.
1.2 Duties. Xxxxxxx shall devote all of his business time, energy, and skill to the affairs of NTI; provided,
however, that reasonable time for personal business, charitable or professional activities shall be permitted, so long as such activities do not materially interfere with Xxxxxxx’x performance of services under this Agreement.
2. Terms of Employment.
2.1 Definitions. For purposes of this Agreement, the following terms shall have the following meanings:
(a) “Accrued Compensation” shall mean any accrued Total Cash
Compensation, any benefits under any plan of NTI in which Xxxxxxx is a participant to the full extent of Xxxxxxx’x rights under such plans, any accrued vacation pay, and any appropriate business expenses incurred by Xxxxxxx in connection with
the performance of Xxxxxxx’x duties hereunder, all to the extent unpaid on the date of termination.
(b) “Base Salary” shall have the meaning set forth in Section 3.1 hereof.
(c) “Termination For Cause” means termination by NTI of Xxxxxxx’x employment by reason of Xxxxxxx’sdishonesty or fraud, gross negligence in the performance of his duties
hereunder, material breach of this Agreement, intentional engagement in acts seriously detrimental to NTI’s operations, or conviction of a felony involving moral turpitude.
(d) “Termination Other Than For Cause” means termination by NTI of Xxxxxxx’semployment for any reason other
than as specified in Sections 2.1, (d) or (f) hereof.
(e) “Total Cash
Compensation” shall mean Xxxxxxx’x Base Salary (as defined in Section 3.1) plus any cash bonuses, commissions or similar payment accrued during any single calendar year.
(f) “Voluntary Termination” means
termination of Xxxxxxx’x employment by the voluntary action of Xxxxxxx.
2.2 Employee at Will. Xxxxxxx is an “at will” employee of NTI, and Xxxxxxx’x employment may be terminated at any time upon a Termination For Cause or a Termination Other Than
For Cause by the giving of written notice thereof to Xxxxxxx, subject to the terms and conditions of this Agreement.
2.3 Termination For Cause. Upon Termination For Cause, NTI shall pay Xxxxxxx Accrued Compensation, if any, and Freimanshall refund the Retention Bonus within 30 days of such
termination.
2.4 Termination Other Than For Cause. Upon
Termination Other Than For Cause, NTI shall pay Xxxxxxx all Accrued Compensation.
2.5 Voluntary Termination. Xxxxxxx shall have the right to effect a Voluntary Termination by giving at least 30 days advance written notice to NTI. During such period, Xxxxxxx shall continue
to receive regularly scheduled Base Salary payments and benefits. Following the effective date of a Voluntary Termination, NTI shall pay Xxxxxxx Accrued Compensation, if any, and, if such Voluntary Termination occurs prior to March 10, 2003,
Xxxxxxx shall refund the Retention Bonus within 30 days of such termination.
2.6 Timing of Termination Payments. Unless expressly provided otherwise, the foregoing termination payments shall be made at the usual and agreed times provided for in Section 3.1 of this
Agreement.
3. Compensation and Benefits.
3.1 Base Salary. As payment for the services to be rendered by Xxxxxxx as provided in Section 1 and subject to
the provisions of Section 2 of this Agreement, NTI shall pay Xxxxxxx a Base Salary ("Base Salary") at the rate of $200,000 per year, payable on NTI's normal payroll schedule.
3.2 Additional Benefits.
(a) Benefit Plans. Xxxxxxx shall be eligible to participate in NTI’s benefit plans as are now generally available or later made generally available to
senior officers of NTI, including, without limitation, medical, dental, life, and disability insurance plans.
(b) Expense Reimbursement. NTI agrees to reimburse Xxxxxxx for all reasonable, ordinary and necessary travel and entertainment expenses incurred by Xxxxxxx conjunction with his services to NTI
consistent with NTI’s standard reimbursement policies. NTI shall pay travel costs incurred by Xxxxxxx in conjunction with his services to NTI consistent with NTI’s standard travel policy.
(c) Vacation. Xxxxxxx shall be entitled, without loss of compensation, to the
amount of vacation per year generally available or later made generally available to senior officers of NTI.
3.3 Retention Bonus. In exchange for Xxxxxxx’x commitment to the Term of this Agreement, NTIshall pay Xxxxxxx a Retention Bonus (“Retention Bonus”) of
$150,000 on the Effective Date of this Agreement. Freimanacknowledges and agrees that payment of the Retention Bonus is a material element of this Agreement and is in consideration for Xxxxxxx’x commitment, and without such commitment,
NTIwould not have paid the Retention Bonus. Freimanacknowledges his obligation to refund the entire RetentionBonus as provided for in Sections 2.3 and 2.5 of this Agreement.
3.4 Bonus. Xxxxxxx shall participate in any management bonus plan adopted by NTI on terms comparable to
other senior officers of NTI.
4. Miscellaneous.
4.1 Waiver. The waiver of the breach of any provision of this Agreement shall not
operate or be construed as a waiver of any subsequent breach of the same or other provision hereof.
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4.2 Notices. All notices
and other communications under this Agreement shall be in writing and shall be given by personal or courier delivery, facsimile or first class mail, certified or registered with return receipt requested, and shall be deemed to have been duly given
upon receipt if personally delivered or delivered by courier, on the date of transmission if transmitted by facsimile, or three days after mailing if mailed, to the addresses of NTI and Xxxxxxx contained in the records of NTI at the time of such
notice. Any party may change such party’s address for notices by notice duly given pursuant to this Section 4.2.
4.3 Term of the Agreement; Renewal of the Agreement. The Term of this Agreement (“Term”) will commence on the Effective Date and will continue for a period of one year. Not
less than 90 days prior to expiration of this Agreement, the parties agree to negotiate in good faith with regard to potential renewal of this Agreement under similar terms and conditions.
4.4 Headings. The section headings used in this Agreement are intended for convenience of reference and shall not
by themselves determine the construction or interpretation of any provision of this Agreement.
4.5 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California applicable to contracts entered into and wholly to be performed
within the State of California by California residents.
4.6 Arbitration. Any controversy or claim arising out of, or relating to, this Agreement or the breach of this Agreement will be settled by arbitration by, and in accordance with the
applicable National Rules for the Resolution of Employment Disputes of the American Arbitration Association and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction. The arbitrator(s) will have the
right to assess, against a party or among the parties, as the arbitrator(s) deem reasonable, (a) administrative fees of the American Arbitration Association, (b) compensation, if any, to the arbitrator(s) and (c) attorneys’ fees incurred by a
party. Arbitration hearings will be held in San Francisco, California. The provisions of California Code of Civil Procedure Section 1283.05 will apply to any arbitration.
4.7 Survival of Obligations. This Agreement shall be binding upon and inure to the benefit of the executors,
administrators, heirs, successors, and assigns of the parties; provided, however, that except as herein expressly provided, this Agreement shall not be assignable either by NTI (except to an affiliate or successor of NTI) or by Xxxxxxx without the
prior written consent of the other party.
4.8 Counterparts. This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one and the same Agreement.
4.9 Withholding. All sums payable to Xxxxxxx hereunder shall be reduced by all
federal, state, local, and other withholdings and similar taxes and payments required by applicable law.
4.10 Enforcement. If any portion of this Agreement is determined to be invalid or unenforceable, such portion shall be adjusted, rather than voided, to achieve the intent of the parties to the
extent possible, and the remainder shall be enforced to the maximum extent possible.
4.11 Entire Agreement; Modifications. Except as otherwise provided herein or in the exhibits hereto, this Agreement represents the entire understanding among the parties with respect to the
subject matter of this Agreement, and this Agreement supersedes any and all prior and contemporaneous understandings, agreements, plans, and negotiations, whether written or oral, with respect to the subject matter hereof, including, without
limitation, any understandings, agreements, or obligations respecting any past or future compensation, bonuses, reimbursements, or other payments to Xxxxxxx from NTI. All modifications to the Agreement must be in writing and signed by each of the
parties hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Employment Agreement as of the date set forth in the first
paragraph.
NEUROBIOLOGICAL TECHNOLOGIES, INC. | ||
By: |
/s/ XXXXXXX X. XXXXX
| |
Chairman of the Board |
/s/ XXXX X. XXXXXXX
|
Xxxx X. Xxxxxxx |
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