Exhibit 10.44
AGREEMENT REGARDING
CHANGE IN CONTROL
THIS AGREEMENT ("Agreement"), is made and entered into as of the 11th day
of March, 2005 (the "Effective Date") by and between Hemispherx Biopharma, Inc.
(the "Company") and Xxxxxx X. Xxxxxxxx (the "Chief Financial Officer")
WITNESSETH THAT:
WHEREAS, the Company considers it essential to the best interests of
its shareholders to xxxxxx the continuous engagement of key management
personnel, and the Board of Directors of the Company (the "Board") recognizes
that, as is the case with many publicly held corporations, a change in control
might occur and that such possibility, and the uncertainty and questions which
it may raise among management, may result in the departure or distraction of
management personnel to the detriment of the Company and its shareholders; and
WHEREAS, the Board has determined that appropriate steps should be
taken to reinforce and encourage the continued attention and dedication of
members of the Company's management, including the Chief Financial Officer, to
their engagement without distraction in the face of potentially disturbing
circumstances arising from the possibility of a change in control of the
Company;
NOW, THEREFORE, to induce the Chief Financial Officer to remain
engaged by the Company and in consideration of the premises and mutual covenants
set forth herein, IT IS HEREBY AGREED by and between the parties as follows:
1. AGREEMENT TERM. The initial "Agreement Term" shall begin on the
Effective Date and shall continue through December 31, 2007. As of December 31,
2007, and as of each December 31 thereafter, the Agreement Term shall extend
automatically to the third anniversary thereof unless the Company gives notice
to the Chief Financial Officer prior to the date of such extension that the
Agreement Term will not be extended. Notwithstanding the foregoing, if a Change
in Control (as defined in Section 7 below), occurs during the Agreement Term,
the Agreement Term shall continue through and terminate on the second
anniversary of the date on which the Change in Control occurs.
2. ENTITLEMENT TO CHANGE IN CONTROL BENEFITS. The Chief Financial
Officer shall be entitled to the Change in Control Benefits described in Section
3 hereof if the Chief Financial Officer's engagement by the Company is
terminated during the Agreement Term but after a Change in Control (i) by the
Company for any reason other than Permanent Disability or Cause, (ii) by the
Chief Financial Officer for Good Reason or (iii) by the Chief Financial Officer
for any reason during the 30-day period commencing on the first date which is
six months after the date of the Change in Control. For purposes of this
Agreement:
(a) A termination of the Chief Financial Officer's engagement shall be treated
as a termination by reason of "Permanent Disability" only if, due to a
mental or physical disability, the Chief Financial Officer is absent from
the performance of services for the Company for a period of at least twelve
consecutive months and fails to return to the performance of services
within 30 days after receipt of a written demand by the Company to do so.
(b) The term "Cause" shall mean the willful engaging by the Chief Financial
Officer in illegal conduct or gross misconduct which is demonstrably and
materially injurious to the Company. For purposes of this Agreement, no
act, or failure to act, on the Chief Financial Officer's part shall be
deemed "willful" unless done, or omitted to be done, by the Chief Financial
Officer not in good faith and without reasonable belief that the Chief
Financial Officer's action or omission was in the best interest of the
Company. Notwithstanding the foregoing, the Chief Financial Officer shall
not be deemed to have been terminated for Cause unless and until the
Company delivers to the Chief Financial Officer a copy of a resolution duly
adopted by the affirmative vote of not less than three-quarters of the
entire membership of the Board at a meeting of the Board called and held
for such purpose (after reasonable notice to the Chief Financial Officer
and an opportunity for the Chief Financial Officer, together with counsel,
to be heard before the Board) finding that, in the good faith opinion of
the Board, the Chief Financial Officer was guilty of conduct set forth
above and specifying the particulars thereof in detail.
(c) The term "Good Reason" shall mean the occurrence of any of the following
circumstances without the Chief Financial Officer's express written
consent:
(i) a significant adverse change in
the nature, scope or status of the Chief
Financial Officer's position, authorities or
services from those in effect immediately
prior to the Change in Control, including,
without limitation, if the Chief Financial
Officer was, immediately prior to the Change
in Control, a Chief Financial Officer of a
public company, the Chief Financial Officer
ceasing to be a Chief Financial Officer of a
public company;
(ii) the failure by the Company to
pay the Chief Financial Officer any portion of
the Chief Financial Officer's current
compensation, or to pay the Chief Financial
Officer any portion of any installment of
deferred compensation under any deferred
compensation program of the Company, within
seven days of the date such compensation is
due;
(iii) a reduction in the Chief
Financial Officer's annual base compensation
(or a material change in the frequency of
payment) as in effect immediately prior to the
Change in Control as the same may be increased
from time to time;
(iv) the failure by the Company to
award the Chief Financial Officer an annual
bonus in any year which is at least equal to
the annual bonus awarded to the Chief
Financial Officer for the year immediately
preceding the year of the Change in Control;
(v)the failure by the Company to award
the Chief Financial Officer equity-based
incentive compensation (such as stock options,
shares of restricted stock, or other
equity-based compensation) on a periodic basis
consistent with the Company's practices with
respect to timing, value and terms prior to
the Change in Control;
(vi) the failure of the Company to
award the Chief Financial Officer incentive
compensation of any nature based on attained
milestones when such milestones are attained.
(vii) the failure of the Company to
obtain a satisfactory agreement from any
successor to the Company to assume and agree
to perform this Agreement as contemplated by
Section 14.
For purposes of any determination regarding the existence of Good
Reason, any good faith determination by the Chief Financial Officer
that Good Reason exists shall be conclusive.
3. CHANGE IN CONTROL BENEFITS. In the event of a termination of engagement
entitling the Chief Financial Officer to benefits in accordance with Section 2,
the Chief Financial Officer shall receive the following:
(a) The Chief Financial Officer shall be entitled to a lump sum payment in cash
no later than twenty business days after the Chief Financial Officer's date
of termination equal to the sum of:
(i) an amount equal to three times
the Chief Financial Officer's annual
compensation in effect on the date of the
Change in Control or, or if greater, as in
effect immediately prior to the date of
termination; plus
(ii) an amount equal to three times
the Chief Financial Officer's bonus award for
the year immediately preceeding the year of
the Change in Control.
The amount payable under this paragraph shall be
inclusive of the amounts, if any, to which the
Chief Financial Officer would otherwise be
entitled or by law and shall be in addition to
(and not inclusive of) any amount payable
under any written agreement(s) directly
between the Chief Financial Officer and the
Company or any of its subsidiaries.
(b) The Company shall provide the Chief Financial Officer with outplacement
services and tax and financial counseling suitable to the Chief Financial
Officer's position through the third anniversary of the date of the Chief
Financial Officer's termination of engagement, or, if earlier, the date on
which the Chief Financial Officer becomes employed by another employer.
4. MITIGATION. The Chief Financial Officer shall not be required to
mitigate the amount of any payment provided for in this Agreement by seeking
other engagement or otherwise. The Company shall not be entitled to set off
against the amounts payable to the Chief Financial Officer under this Agreement
any amounts owed to the Company by the Chief Financial Officer, any amounts
earned by the Chief Financial Officer in other engagement after the Chief
Financial Officer's termination of engagement with the Company, or any amounts
which might have been earned by the Chief Financial Officer in other engagement
had the Chief Financial Officer sought such other engagement.
5. MAKE-WHOLE PAYMENTS. If any payment or benefit to which the Chief
Financial Officer (or any person on account of the Chief Financial Officer) is
entitled, whether under this Agreement or otherwise, in connection with a Change
in Control or the Chief Financial Officer's termination of engagement (a
"Payment") constitutes a "parachute payment" within the meaning of section 280G
of the Internal Revenue Code of 1986, as amended (the "Code"), and as a result
thereof the Chief Financial Officer is subject to a tax under section 4999 of
the Code, or any successor thereto, (an "Excise Tax"), the Company shall pay to
the Chief Financial Officer an additional amount (the "Make-Whole Amount") which
is intended to make the Chief Financial Officer whole for such Excise Tax. The
Make-Whole Amount shall be equal to (i) the amount of the Excise Tax, plus (ii)
the aggregate amount of any interest, penalties, fines or additions to any tax
which are imposed in connection with the imposition of such Excise Tax, plus
(iii) all income, excise and other applicable taxes imposed on the Chief
Financial Officer under the laws of any Federal, state or local government or
taxing authority by reason of the payments required under clauses (i) and (ii)
and this clause (iii).
(a) For purposes of determining the Make-Whole Amount, the Chief Financial
Officer shall be deemed to be taxed at the highest marginal rate under all
applicable local, state, federal and foreign income tax laws for the year
in which the Make-Whole Amount is paid. The Make-Whole Amount payable with
respect to an Excise Tax shall be paid by the Company coincident with the
Payment with respect to which such Excise Tax relates.
(b) All calculations under this Section 5 shall be made initially by the
Company and the Company shall provide prompt written notice thereof to the
Chief Financial Officer to enable the Chief Financial Officer to timely
file all applicable tax returns. Upon request of the Chief Financial
Officer, the Company shall provide the Chief Financial Officer with
sufficient tax and compensation data to enable the Chief Financial Officer
or the Chief Financial Officer's tax advisor to independently make the
calculations described in subparagraph (a) above and the Company shall
reimburse the Chief Financial Officer for reasonable fees and expenses
incurred for any such verification.
(c) If the Chief Financial Officer gives written notice to the Company of any
objection to the results of the Company's calculations within 60 days of
the Chief Financial Officer's receipt of written notice thereof, the
dispute shall be referred for determination to independent tax counsel
selected by the Company and reasonably acceptable to the Chief Financial
Officer ("Tax Counsel"). The Company shall pay all fees and expenses of
such Tax Counsel. Pending such determination by Tax Counsel, the Company
shall pay the Chief Financial Officer the Make-Whole Amount as determined
by it in good faith. The Company shall pay the Chief Financial Officer any
additional amount determined by Tax Counsel to be due under this Section 5
(together with interest thereon at a rate equal to 120% of the Federal
short-term rate determined under section 1274(d) of the Code) promptly
after such determination.
(d) The determination by Tax Counsel shall be conclusive and binding upon all
parties unless the Internal Revenue Service, a court of competent
jurisdiction, or such other duly empowered governmental body or agency (a
"Tax Authority") determines that the Chief Financial Officer owes a greater
or lesser amount of Excise Tax with respect to any Payment than the amount
determined by Tax Counsel.
(e) If a Taxing Authority makes a claim against the Chief Financial Officer
which, if successful, would require the Company to make a payment under
this Section 5, the Chief Financial Officer agrees to contest the claim
with counsel reasonably satisfactory to the Company, on request of the
Company subject to the following conditions:
(i) The Chief Financial Officer shall notify the
Company of any such claim within 10 days of
becoming aware thereof. In the event that the
Company desires the claim to be contested, it
shall promptly (but in no event more than 30
days after the notice from the Chief Financial
Officer or such shorter time as the Taxing
Authority may specify for responding to such
claim) request the Chief Financial Officer to
contest the claim. The Chief Financial Officer
shall not make any payment of any tax which is
the subject of the claim before the Chief
Financial Officer has given the notice or
during the 30-day period thereafter unless the
Chief Financial Officer receives written
instructions from the Company to make such
payment together with an advance of funds
sufficient to make the requested payment plus
any amounts payable under this Section 5
determined as if such advance were an Excise
Tax, in which case the Chief Financial Officer
will act promptly in accordance with such
instructions.
(ii) If the Company so requests, the Chief Financial
Officer will contest the claim by either
paying the tax claimed and suing for a refund
in the appropriate court or contesting the
claim in the United States Tax Court or other
appropriate court, as directed by the Company;
PROVIDED, HOWEVER, that any request by the
Company for the Chief Financial Officer to pay
the tax shall be accompanied by an advance
from the Company to the Chief Financial
Officer of funds sufficient to make the
requested payment plus any amounts payable
under this Section 5 determined as if such
advance were an Excise Tax. If directed by the
Company in writing the Chief Financial Officer
will take all action necessary to compromise
or settle the claim, but in no event will the
Chief Financial Officer compromise or settle
the claim or cease to contest the claim
without the written consent of the Company;
PROVIDED, HOWEVER, that the Chief Financial
Officer may take any such action if the Chief
Financial Officer waives in writing the Chief
Financial Officer's right to a payment under
this Section 5 for any amounts payable in
connection with such claim. The Chief
Financial Officer agrees to cooperate in good
faith with the Company in contesting the claim
and to comply with any reasonable request from
the Company concerning the contest of the
claim, including the pursuit of administrative
remedies, the appropriate forum for any
judicial proceedings, and the legal basis for
contesting the claim. Upon request of the
Company, the Chief Financial Officer shall
take appropriate appeals of any judgment or
decision that would require the Company make a
payment under this Section 5. Provided that
Chief Financial Officer is in compliance with
the provisions this section, the Company shall
be liable for and indemnify the Chief
Financial Officer against any loss in
connection with, and all costs and expenses,
including attorneys' fees, which may be
incurred as a result of, contesting the claim,
and shall provide to the Chief Financial
Officer within 30 days after each written
request therefor by the Chief Financial
Officer cash advances or reimbursement for all
such costs and expenses actually incurred or
reasonably expected to be incurred by the
Chief Financial Officer as a result of
contesting the claim.
(f) Should a Tax Authority finally determine that an additional Excise Tax is
owed, then the Company shall pay an additional Make-Whole Amount to the
Chief Financial Officer in a manner consistent with this Section 5 with
respect to any additional Excise Tax and any assessed interest, fines, or
penalties. If any Excise Tax as calculated by the Company or Tax Counsel,
as the case may be, is finally determined by a Tax Authority to exceed the
amount required to be paid under applicable law, then the Chief Financial
Officer shall repay such excess to the Company within 30 days of such
determination; provided that such repayment shall be reduced by the amount
of any taxes paid by the Chief Financial Officer on such excess which is
not offset by the tax benefit attributable to the repayment.
6. TERMINATION DURING POTENTIAL CHANGE IN CONTROL. If a Potential Change in
Control (as defined in Section 8) occurs during the Agreement Term, and the
Company terminates the Chief Financial Officer's engagement for reasons other
than Permanent Disability or Cause during such Potential Change in Control, the
Chief Financial Officer shall be entitled to receive the benefits that the Chief
Financial Officer would have received under Section 3, such benefits to be
calculated based upon the Chief Financial Officer's compensation prior to the
actual termination of engagement but paid within 20 business days of the date of
such termination.
7. CHANGE IN CONTROL. For purposes of this Agreement, a "Change in Control"
shall be deemed to have occurred on the earliest of the following dates:
(a) the date any 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) representing 20% or more of the combined voting
power of the Company's then outstanding securities, excluding any Person
who becomes such a Beneficial Owner in connection with a transaction
described in clause (i) of paragraph (c) below; or
(b) the date on which the following individuals cease for any reason to
constitute a majority of the number of directors then serving: individuals
who, on the date hereof, constitute the Board and any new director (other
than a director whose initial assumption of office is in connection with an
actual or threatened election contest, including but not limited to a
consent solicitation, relating to the election of directors of the Company)
whose appointment or election by the Board or nomination for election by
the Company's shareholders was approved or recommended by a vote of at
least two-thirds (2/3) of the directors then still in office who either
were directors on the date hereof or whose appointment, election or
nomination for election was previously so approved or recommended; or
(c) the date on which there is consummated a merger or consolidation of the
Company or any direct or indirect subsidiary of the Company with any other
corporation or other entity, other than (i) a merger or consolidation (A)
immediately following which the individuals who comprise the Board
immediately prior thereto constitute at least a majority of the board of
directors of the Company, the entity surviving such merger or consolidation
or, if the Company or the entity surviving such merger or consolidation is
then a subsidiary, the ultimate parent thereof and (B) which results 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 or any subsidiary of the Company, at least 50% of the
combined voting power of the securities of the Company or such surviving
entity or any parent thereof outstanding immediately after such merger or
consolidation, or (ii) 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)
representing 20% or more of the combined voting power of the Company's then
outstanding securities; or
(d) the date on which the shareholders of the Company approve a plan of
complete liquidation or dissolution of the Company or there is consummated
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, at least 50% of the combined voting power of the voting securities
of which are owned by shareholders of the Company, in combination with the
ownership of any trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any subsidiary of the Company, in
substantially the same proportions as their ownership of the Company
immediately prior to such sale.
Notwithstanding the foregoing, a "Change in Control"
shall not be deemed to have occurred by virtue of the
consummation of any transaction or series of integrated
transactions immediately following which the record
holders of the common stock 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.
For purposes of this Agreement: "Affiliate" shall have
the meaning set forth in Rule 12b-2 promulgated under
Section 12 of the Exchange Act; "Beneficial Owner" shall
have the meaning set forth in Rule 13d-3 under the
Exchange Act; "Exchange Act" shall mean the Securities
Exchange Act of 1934, as amended from time to time; and
"Person" shall have the meaning given in Section 3(a)(9)
of the Exchange Act, as modified and used in Sections
13(d) and 14(d) thereof, except that such term shall not
include (i) the Company or any of its subsidiaries, (ii)
a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any of its
Affiliates, (iii) an underwriter temporarily holding
securities pursuant to an offering of such securities, or
(iv) a corporation owned, directly or indirectly, by the
shareholders of the Company in substantially the same
proportions as their ownership of stock of the Company.
8. POTENTIAL CHANGE IN CONTROL. A "Potential Change in Control"
shall exist during any period in which the circumstances described in paragraphs
(a), (b), (c) or (d), below, exist (provided, however, that a Potential Change
in Control shall cease to exist not later than the occurrence of a Change in
Control):
(a) The Company enters into an agreement, the
consummation of which would result in the
occurrence of a Change in Control, provided
that a Potential Change in Control described
in this paragraph (a) shall cease to exist
upon the expiration or other termination of
all such agreements;
(b) Any Person (without regard to the exclusions
set forth in subsections (i) through (iv) of
such definition) publicly announces an
intention to take or to consider taking
actions the consummation of which would
constitute a Change in Control; provided that
a Potential Change in Control described in
this paragraph (b) shall cease to exist upon
the withdrawal of such intention, or upon a
determination by the Board that there is no
reasonable chance that such actions would be
consummated;
(c) Any Person becomes the Beneficial Owner, directly or
indirectly, of securities of the Company
representing 10% or more of either the then
outstanding shares of common stock of the
Company or the combined voting power of the
Company's then outstanding securities (not
including in the securities beneficially owned
by such Person any securities acquired
directly from the Company or its Affiliates);
(d) The Board adopts a resolution to the effect that, for
purposes of this Agreement, a Potential Change
in Control exists; provided that a Potential
Change in Control described in this paragraph
(d) shall cease to exist upon a determination
by the Board that the reasons that gave rise
to the resolution providing for the existence
of a Potential Change in Control have expired
or no longer exist.
9. NONALIENATION. The interests of the Chief Financial Officer under this
Agreement are not subject in any manner to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance, attachment, or garnishment by
creditors of the Chief Financial Officer or the Chief Financial Officer's
beneficiary.
10. AMENDMENT. This Agreement may be amended or canceled only by mutual
agreement of the parties in writing without the consent of any other person. So
long as the Chief Financial Officer lives, no person, other than the parties
hereto, shall have any rights under or interest in this Agreement or the subject
matter hereof.
11. APPLICABLE LAW. The provisions of this Agreement shall be construed in
accordance with the laws of the Commonwealth of Pennsylvania, without regard to
the conflict of law provisions of any state.
12. SEVERABILITY. The invalidity or unenforceability of any provision of
this Agreement will not affect the validity or enforceability of any other
provision of this Agreement, and this Agreement will be construed as if such
invalid or unenforceable provision were omitted (but only to the extent that
such provision cannot be appropriately reformed or modified).
13. WAIVER OF BREACH. No waiver by any party hereto of a breach of any
provision of this Agreement by any other party, or of compliance with any
condition or provision of this Agreement to be performed by such other party,
will operate or be construed as a waiver of any subsequent breach by such other
party of any similar or dissimilar provisions and conditions at the same or any
prior or subsequent time. The failure of any party hereto to take any action by
reason of such breach will not deprive such party of the right to take action at
any time while such breach continues.
14. SUCCESSORS, ASSUMPTION OF CONTRACT. This Agreement shall be binding
upon and inure to the benefit of the Company and any successor of the Company.
The Company will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
and/or assets of the Company to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no succession had taken place. This Agreement is
personal to the Chief Financial Officer and may not be assigned by the Chief
Financial Officer without the written consent of the Company. However, to the
extent that rights or benefits under this Agreement otherwise survive the Chief
Financial Officer's death, the Chief Financial Officer's heirs and estate shall
succeed to such rights and benefits pursuant to the Chief Financial Officer's
will or the laws of descent and distribution; provided that the Chief Financial
Officer shall have the right at any time and from time to time, by notice
delivered to the Company, to designate or to change the beneficiary or
beneficiaries with respect to such benefits.
15. NOTICES. Notices and all other communications provided for in this
Agreement shall be in writing and shall be delivered personally or sent by
registered or certified mail, return receipt requested, postage prepaid
(provided that international mail shall be sent via overnight or two-day
delivery), or sent by facsimile or prepaid overnight courier to the parties at
the addresses set forth below. Such notices, demands, claims and other
communications shall be deemed given:
(a) in the case of delivery by overnight service with guaranteed next day
delivery, the next day or the day designated for delivery;
(b) in the case of certified or registered U.S. mail, five days after deposit
in the U.S. mail; or
(c) in the case of facsimile, the date upon which the transmitting party
received confirmation of receipt by facsimile, telephone or otherwise;
provided, however, that in no event shall any such communications be deemed to
be given later than the date they are actually received. Communications that are
to be delivered by the U.S. mail or by overnight service or two-day delivery
service are to be delivered to the addresses set forth below:
to the Company:
Hemispherx Biopharma, Inc.
One Penn Center
0000 XXX Xxxx.
Xxxxxxxxxxxx, XX 00000
with a copy (which shall not constitute notice) to:
General Counsel and Secretary
Hemispherx Biopharma, Inc.
One Penn Center
0000 XXX Xxxx.
Xxxxxxxxxxxx, XX 00000
or to the Chief Financial Officer:
Name: Xxxxxx X. Xxxxxxxx
Address: 0000 X. 00xx Xxxxxx
Xxxx, Xxxxx Zip: Xxxxx, XX 00000
Each party, by written notice furnished to the other party, may modify the
applicable delivery address, except that notice of change of address shall be
effective only upon receipt.
16. LEGAL AND ENFORCEMENT COSTS. The provisions of this Section 16 shall
apply if it becomes necessary or desirable for the Chief Financial Officer to
retain legal counsel or incur other costs and expenses in connection with
enforcing any and all rights under this Agreement or any other compensation plan
maintained by the Company;
(a) The Chief Financial Officer shall be entitled to recover from the
Company reasonable attorneys' fees, costs and expenses incurred in connection
with such enforcement or defense.
(b) Payments required under this Section 16 shall be made by the Company to
the Chief Financial Officer (or directly to the Chief Financial Officer's
attorney) promptly following submission to the Company of appropriate
documentation evidencing the incurrence of such attorneys' fees, costs, and
expenses.
(c) The Chief Financial Officer shall be entitled to select legal counsel;
provided, however, that such right of selection shall not affect the requirement
that any costs and expenses reimbursable under this Section 16 be reasonable.
(d) The Chief Financial Officer's rights to payments under this Section 16
shall not be affected by the final outcome of any dispute with the Company.
17. SURVIVAL OF AGREEMENT. Except as otherwise expressly provided in this
Agreement, the rights and obligations of the parties to this Agreement shall
survive the termination of the Chief Financial Officer's engagement with the
Company.
18. ENTIRE AGREEMENT. Except as otherwise provided herein, this Agreement
constitutes the entire agreement between the parties concerning the subject
matter hereof and supersedes all prior or contemporaneous agreements, between
the parties relating to the subject matter hereof; provided, however, that
nothing in this Agreement shall be construed to limit any policy or agreement
that is otherwise applicable relating to confidentiality, rights to inventions,
copyrightable material, business and/or technical information, trade secrets,
solicitation of employees, interference with relationships with other
businesses, competition, and other similar policies or agreement for the
protection of the business and operations of the Company and the subsidiaries.
19. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, any one of which shall be deemed the original without reference to
the others.
IN WITNESS THEREOF, the Chief Financial Officer has hereunto set his hand, and
the Company has caused these presents to be executed in its name and on its
behalf, and its corporate seal to be hereunto affixed on this 11th day of March,
2005, all as of the Effective Date.
/s/ Xxxxxx X. Xxxxxxxx
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Chief Financial Officer
HEMISPHERX BIOPHARMA, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Its CEO
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ATTEST:
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(SEAL)
