AMENDMENT TO EMPLOYMENT AGREEMENT
Exhibit
10.1
AMENDMENT TO EMPLOYMENT
AGREEMENT
This
Amended Employment Agreement (this “Agreement”) is dated as of May 9, 2008 and
effective as of the 1st day of
April, 2008, by and between Xxxxx X. XxXxxxxxxx (hereinafter referred to as
“Employee”) and Opexa Therapeutics, Inc. (hereinafter referred to as “Opexa”),
and amends that certain amended and restated employment agreement, effective
June 15, 2006, by and between Employee and Opexa (“Original
Agreement”).
W I T N E
S S E T H:
WHEREAS, Employee is employed
by Opexa pursuant to the Original Agreement;
WHEREAS, the Employee and
Opexa jointly wish to make certain changes to the Original Agreement to more
accurately reflect the understanding between them.
NOW, THEREFORE, for and in
consideration of the employment by Opexa, the compensation and other
remuneration paid and to be paid by Opexa and received by the Employee for such
employment, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by Employee, it is agreed by and
between the parties hereto as follows:
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1.
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Unless
otherwise amended as set forth herein, the Original Agreement shall remain
in full force and effect.
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2.
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Xxxxxxx
0, Xxxx of
Employment, shall be amended and restated in its entirety as set
forth below:
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3. Term of
Employment
The term of employment of Employee is
through March 31, 2009, subject to termination pursuant to Section
6.
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3.
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Section
4, Compensation,
shall be amended and restated in its entirety as set forth
below:
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4. Compensation
As compensation, Opexa shall pay
Employee a salary of $288,750 per year, paid consistent with the then payroll
practices of Opexa.
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4.
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Section
6 is amended as follows: Section 6.2 is deleted, and Sections 6.3, 6.4 and
6.7 are amended and restated in their entirety as set forth
below:
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6. Termination
6.3 Employee’s Voluntary
Termination. The Employee may terminate his employment at any
time upon 30 days’ prior written notice to Opexa.
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6.4 Termination by Opexa Without
Cause. Upon written notice by Opexa, a majority of the Board
of Directors of Opexa may terminate Employee’s employment without Cause (as
defined below). Upon termination without Cause the Employee shall be
entitled to the following severance:
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(i)
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one
month base salary at the rate in effect (as provided for by Section 4 of
this Agreement) at the time of such termination, provided Employee
provides consulting services to the Company for at least 20 hours per week
for the eight week period following termination to facilitate the
transition of duties from Employee to the new chief executive
officer;
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(ii)
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any
annual bonus earned but not yet paid as of the date of
termination;
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(iii)
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any
accrued vacation pay;
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(iv)
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reimbursement
for expenses incurred but not yet paid prior to such termination of
employment;
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(v)
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any
other compensation and benefits, including deferred compensation, as may
be provided in accordance with the terms and provisions of any applicable
plans and programs of Opexa; and
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(vi)
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any
and all stock options granted to Employee prior to termination shall vest
and Employee shall have one year from the date Employee ceases to serve as
a Company director to exercise any such stock options or other derivative
securities granted pursuant to any then existing stock compensation
plan.
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6.7 Change of
Control. The effectiveness of a Change of Control (as defined
below) shall be deemed a termination without Cause. Upon the
effectiveness of a Change of Control, any and all stock options granted to
Employee prior to termination shall vest and Employee shall have one year from
the date Employee ceases to serve as a Company director to exercise any such
stock options or other derivative securities granted pursuant to any then
existing stock compensation plan.
“Change of Control” as used herein
shall mean the occurrence of the following events:
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(i)
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A
sale, transfer, or other disposition by Opexa through a single transaction
or a series of transactions occurring within a 90-day period of securities
of Opexa representing Beneficial Ownership (as defined below) of fifty
(50%) percent or more of the combined voting power of Opexa then
outstanding securities to any “Unrelated Person” or “Unrelated Persons”
acting in concert with one another. For purposes of this
definition, the term “Person” shall mean and include any individual,
partnership, joint venture, association, trust corporation, or other
entity [including a “group” as referred to in Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended (“1934 Act”)]. For
purposes of this definition, the term “Unrelated Person” shall mean and
include any Person other than the Employee, Opexa, a wholly-owned
subsidiary of Opexa, an existing shareholder, or an employee benefit plan
of Opexa; provided however, a sale of Opexa’s securities in a capital
raising transaction shall not be a Change of
Control.
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(ii)
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A
sale, transfer, or other disposition through a single transaction or a
series of transactions occurring within a 90-day period of all or
substantially all of the assets of Opexa to an Unrelated Person or
Unrelated Persons acting in concert with one
another.
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(iii)
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A
change in the ownership of Opexa through a single transaction or a series
of transactions occurring within a 90-day period such that any Unrelated
Person or Unrelated Persons acting in concert with one another become the
“Beneficial Owner,” directly or indirectly, of securities of Opexa
representing at least fifty-one (51%) percent of the combined voting power
of Opexa then outstanding securities. For purposes of this
Agreement, the term “Beneficial Owner” shall have the same meaning as
given to that term in Rule 13d-3 promulgated under the 1934 Act, provided
that any pledgee of voting securities is not deemed to be the Beneficial
Owner of the securities prior to its acquisition of voting rights with
respect to the securities.
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(iv)
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Any
consolidation or merger of Opexa with or into an Unrelated Person, unless
(i) immediately after the consolidation or merger the holders of the
common stock of Opexa immediately prior to the consolidation or merger are
the beneficial owners of securities of the surviving corporation
representing at least fifty-one (51%) percent of the combined voting power
of the surviving corporation’s then outstanding securities or (ii)
Employee continues to serve as Chief Executive Officer after the
consolidation or merger.
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6.8 Retirement
Termination. Upon Employee reaching the age of 65, Employee shall then
have the right to terminate this Agreement without cause, effective a date six
months from the date he provides Opexa with written notice of his decision to
terminate for retirement purposes. Upon the effective date of such termination,
Opexa shall pay Employee severance awarded pursuant to Section 6.4 (ii)-(iv)
above, provided that any and all stock options granted to Employee prior to the
effective date of such termination shall vest immediately with a one-year period
from the effective date of termination hereunder to exercise any such stock
options or other derivative securities granted pursuant to any then existing
stock compensation plan.
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EMPLOYEE:
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By: /s/
XXXXX
XXXXXXXX
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By:
/s/ XXXXX X.
XXXXXXXXXX
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Name: Xxxxx
Xxxxxxxx
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Xxxxx
X. XxXxxxxxxx
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Title:
Chief Financial Officer
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