Exhibit 10.11
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement"), made as of the 28th day of
May 1996 (the "Effective Date"), by and between T Cell Sciences, Inc., a
Massachusetts corporation with its main office in Needham, Massachusetts (the
"Company") and Una X. Xxxx, Ph.D. (the "Executive").
WITNESSETH
In consideration of the mutual covenants contained herein, the Company and
the Executive agree as follows:
1. Employment. The Company agrees to employ the Executive and the Executive
agrees to be employed by the Company on the terms and conditions hereinafter set
forth.
2. Capacity. The Executive shall initially serve the Company as its President,
Chief Operating Officer and Chief Scientific Officer and shall serve the Company
in such other or additional offices in which the Executive may be requested to
serve by the Board of Directors of the Company (the "Board"). In such capacity
or capacities, the Executive shall perform such services and duties in
connection with the business, affairs and operations of the Company as may be
assigned or delegated to her from time to time by or under the authority of the
Board.
3. Term. Subject to the provisions of Section 6, the term of employment
pursuant to this Agreement (the "Term") shall be one (1) year from the Effective
Date and shall be renewed automatically for periods of one (1) year commencing
on the anniversary of the Effective Date and on each subsequent anniversary
thereafter, unless either the Executive or the Company gives written notice to
the other not less than sixty (60) days prior to the date of any such
anniversary of such party's election not to extend the Term.
4. Compensation and Benefits. The regular compensation and benefits payable to
the Executive under this Agreement shall be as follows:
a. Salary. For all services rendered by the Executive under this Agreement,
the Company shall pay the Executive a salary (the "Salary") at the annual rate
of Two Hundred Forty Thousand Dollars ($240,000), subject to increase from time
to time in the discretion of the Board or the Compensation Committee of the
Board (the "Compensation Committee"). The Salary shall be payable in periodic
installments in accordance with the Company's usual practice for its senior
executives.
b. Bonus. The Executive shall be entitled to participate in the Performance
Incentive Plan as established by the Board in accordance with and subject to the
terms and
conditions established in the sole discretion of the Board. The Executive will
be eligible to earn up to an amount equal to thirty percent (30%) of her then
current Salary each year under the Performance Incentive Plan.
c. Regular Benefits. The Executive shall be entitled to participate in any
employee benefit plans, medical insurance plans, life insurance plans,
disability income plans, retirement plans, vacation plans, expense reimbursement
plans and other benefit plans which the Company may from time to time have in
effect for all or most of its senior executives. Such participation shall be
subject to the terms of the applicable plan documents, generally applicable
policies of the Company, applicable law and the discretion of the Board, the
Compensation Committee or any administrative or other committee provided for in
or contemplated by any such plan. Nothing contained in this Agreement shall be
construed to create any obligation on the part of the Company to establish any
such plan or to maintain the effectiveness of any such plan which may be in
effect from time to time.
d. Stock Options. The Executive shall be eligible to participate in the T
Cell Sciences, Inc. Amended and Restated 1991 Stock Compensation Plan (the
"Stock Plan"), as adopted by the Board and as approved by the stockholders of T
Cell and as may be amended, modified or terminated from time to time, in
accordance with its terms and the terms of any individual Stock Option Agreement
entered into by and between the Company and the Executive in accordance with the
Stock Plan.
e. Exclusivity of Salary and Benefits. The Executive shall not be entitled
to any payments or benefits other than those provided under this Agreement.
5. Extent of Service. During the Executive's employment under this
Agreement, the Executive shall, subject to the direction and supervision of the
Board, devote the Executive's full business time, best efforts and business
judgment, skill and knowledge to the advancement of the Company's interests and
to the discharge of the Executive's duties and responsibilities under this
Agreement. The Executive shall not engage in any other business activity, except
as may be approved by the Board; provided, that nothing in this Agreement shall
be construed as preventing the Executive from:
a. investing the Executive's assets in any company or other entity in a
manner not prohibited by Section 7(e) and in such form or manner as shall not
require any material activities on the Executive's part in connection with the
operations or affairs of the companies or other entities in which such
investments are made; or
b. engaging in religious, charitable or other community or non-profit
activities that do not impair the Executive's ability to fulfill the Executive's
duties and responsibilities under this Agreement.
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6. Termination and Termination Benefits. Notwithstanding the provisions of
Section 3, the Executive's employment under this Agreement shall terminate under
the following circumstances set forth in this Section 6.
a. Termination by the Company for Cause. The Executive's employment under
this Agreement may be terminated for cause without further liability on the part
of the Company effective immediately upon a vote of the Board and written notice
to the Executive. Only the following shall constitute "cause" for such
termination:
(i) dishonest statements or acts of the Executive with respect to the
Company or any affiliate of the Company;
(ii) the commission by or indictment of the Executive for (A) a felony
or (B) any misdemeanor involving moral turpitude, deceit, dishonesty or
fraud ("indictment," for these purposes, meaning an indictment,
probable cause hearing or any other procedure pursuant to which an
initial determination of probable or reasonable cause with respect to
such offense is made);
(iii) gross negligence, willful misconduct or insubordination of the
Executive with respect to the Company or any affiliate of the Company;
or
(iv) material breach by the Executive of any of the Executive's
obligations under this Agreement, which breach results in a material
injury to the Company.
b. Termination by the Executive. The Executive's employment under this
Agreement may be terminated by the Executive by written notice to the Board at
least sixty (60) days prior to such termination. Upon receipt of such notice,
the Company may elect to provide the Executive with pay in lieu of notice. For
purposes of this Section 6(b), the Company is only required to pay the Executive
an amount equal to her Salary pro rated for the period of time for which the
Company waives notice.
c. Termination by the Company Without Cause. Subject to the payment of
Termination Benefits pursuant to Section 6(e), the Executive's employment under
this Agreement may be terminated by the Company without cause upon written
notice to the Executive.
d. Change in Control. The Executive's employment under this Agreement may
be terminated by the Executive for Good Reason within one (1) year of a Change
in Control by written notice to the Board; provided, that the Executive shall
provide the Board with written notice of any such Good Reason at least thirty
(30) days in advance of a voluntary
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termination of employment and the Company shall have the opportunity to remedy
or cure the asserted basis for any such Good Reason voluntary termination within
such thirty-day period.
(i) "Change in Control" shall have the meaning set forth in Section 1.2
of the Stock Plan, without regard to the Board's right to revoke a
resolution declaring that a Change in Control has occurred.
(ii) "Good Reason" shall mean:
(A) the assignment to the Executive of any duties substantially
inconsistent with the Executive's position or status as an officer
immediately prior to the Change in Control or any alteration in
the nature or status of the Executive's responsibilities to a
significantly lesser position;
(B) material reduction in the Executive's Salary, incentive
compensation, or benefits or perquisites as in effect immediately
prior to the Change in Control;
(C) the relocation of the principal place of the Executive's
employment after the Change in Control to a location more than 50
miles from the principal place of the Executive's employment as
of the Effective Date without the Executive's written consent; or
(D) the failure by the Company to assign this Agreement to any
successor pursuant to Section 14.
e. Certain Termination Benefits. Unless otherwise specifically provided in
this Agreement or otherwise required by law, all compensation and benefits
payable to the Executive under this Agreement shall terminate on the date of
termination of the Executive's employment under this Agreement. Notwithstanding
the foregoing, in the event of termination of the Executive's employment with
the Company pursuant to Section 6(c) or (d) above, the Company shall provide to
the Executive the following termination benefits ("Termination Benefits"):
(i) continuation of the Executive's Salary at the rate then in effect
pursuant to Section 4(a); and
(ii) continuation of group health plan benefits to the extent
authorized by and consistent with 29 U.S.C. ss.1161 et seq. (commonly known
as "COBRA"), with the cost of the regular premium for such benefits shared
in the same relative
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proportion by the Company and the Executive as in effect on the date of
termination, unless the termination of employment pursuant to Section 6(c)
or 6(d) occurs within one year of a Change in Control, in which case the
Company shall pay all premiums.
The Termination Benefits set forth in (i) and (ii) above shall continue for
twelve (12) months after the date of termination; provided, that in the event
that the Executive is terminated pursuant to Section 6(c) at any time other than
within one (1) year after a Change in Control and the Executive thereafter
commences any employment or self-employment during the period during which the
Executive is entitled to receive Termination Benefits (the "Termination Benefits
Period"), the remaining amount of Salary due pursuant to Section 6(e)(i) for the
period from the commencement of such employment or self-employment to the end of
the Termination Benefits Period shall be reduced by an amount equal to the
amount the Executive earns as a result of such employment or self-employment and
the payments provided under Section 6(e)(ii) shall cease effective as of the
date the Executive becomes eligible for health benefits pursuant to such other
employment or self-employment. The Company's liability for Salary continuation
pursuant to Section 6(e)(i) shall be reduced by the amount of any severance pay
due or otherwise paid to the Executive pursuant to any severance pay plan or
stay bonus plan of the Company. Notwithstanding the foregoing, nothing in this
Section 6(e) shall be construed to affect the Executive's right to receive COBRA
continuation entirely at the Executive's own cost to the extent that the
Executive may continue to be entitled to COBRA continuation after the
Executive's right to cost sharing under Section 6(e)(ii) ceases. The Executive
shall be obligated to give prompt notice of the date of commencement of any
employment or self-employment during the Termination Benefits Period and shall
respond promptly to any reasonable inquiries concerning any employment or
self-employment in which the Executive engages during the Termination Benefits
Period.
It is the intention of the Executive and of the Company that no payments by the
Company to or for the benefit of the Executive under this Agreement or any other
agreement or plan, if any, pursuant to which the Executive is entitled to
receive payments or benefits shall be nondeductible to the Company by reason of
the operation of Section 280G of the Internal Revenue Code ("Code") relating to
parachute payments or any like statutory or regulatory provision. Accordingly,
and notwithstanding any other provision of this Agreement or any such agreement
or plan, if by reason of the operation of said Section 280G or any like
statutory or regulatory provision, any such payments exceed the amount which can
be deducted by the Company, such payments shall be reduced to the maximum amount
which can be deducted by the Company. To the extent that payments exceeding such
maximum deductible amount have been made to or for the benefit of the Executive,
such excess payments shall be refunded to the Company with interest thereon at
the applicable Federal rate determined under Section 1274(d) of the Internal
Revenue Code, compounded annually, or at such other rate as may be required in
order that no such payments shall be nondeductible to the Company by reason of
the operation of said Section 280G or any like statutory or
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regulatory provision. To the extent that there is more than one method of
reducing the payments to bring them within the limitations of said Section 280G
or any like statutory or regulatory provision, the Executive shall determine
which method shall be followed, provided that if the Executive fails to make
such determination within forty-five (45) days after the Company has given
notice of the need for such reduction, the Company may determine the method of
such reduction in its sole discretion.
f. Disability. If the Executive shall be disabled so as to be unable to
perform the essential functions of the Executive's then existing position or
positions under this Agreement with or without reasonable accommodation, the
Board may remove the Executive from any responsibilities and/or reassign the
Executive to another position with the Company for the remainder of the Term or
during the period of such disability. If the period of disability extends for
more than six (6) months, the Company may terminate the Executive's employment
without further liability on the part of the Company. If any question shall
arise as to whether during any period the Executive is disabled so as to be
unable to perform the essential functions of the Executive's then existing
position or positions with or without reasonable accommodation, the Executive
may, and at the request of the Company shall, submit to the Company a
certification in reasonable detail by a physician selected by the Company to
whom the Executive or the Executive's guardian has no reasonable objection as to
whether the Executive is so disabled or how long such disability is expected to
continue, and such certification shall for the purposes of this Agreement be
conclusive of the issue. The Executive shall cooperate with any reasonable
request of the physician in connection with such certification. If such question
shall arise and the Executive shall fail to submit such certification, the
Company's determination of such issue shall be binding on the Executive. Nothing
in this Section 6(f) shall be construed to waive the Executive's rights, if any,
under existing law including, without limitation, the Family and Medical Leave
Act of 1993, 29 U.S.C. ss.2601 et seq. and the Americans with Disabilities Act,
42 U.S.C. ss.12101 et seq.
g. Death or Retirement. The Executive's employment under this Agreement
will be deemed to have terminated without further liability on the part of the
Company if the Executive dies or retires.
7. Confidential Information, Noncompetition and Assignment.
a. Confidential Information. As used in this Agreement, "Confidential
Information" means information belonging to the Company which is of value to the
Company in the course of conducting its business and the disclosure of which
could result in a competitive or other disadvantage to the Company. Confidential
Information includes, without limitation, financial information, reports, and
forecasts; inventions, improvements and other intellectual property; trade
secrets; know-how; designs, processes or formulae; research data or results,
inventions, cell lines or products; software; market or sales information or
plans; customer lists; and business plans, prospects and opportunities (such as
possible acquisitions or
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dispositions of businesses or facilities) which have been discussed or
considered by the management of the Company. Confidential Information includes
information developed by the Executive in the course of the Executive's
employment by the Company, as well as other information to which the Executive
may have access in connection with the Executive's employment. Confidential
Information also includes the confidential information of others with which the
Company has a business relationship. Notwithstanding the foregoing, Confidential
Information does not include information in the public domain, unless due to
breach of the Executive's duties under Section 7(a). The Executive understands
and agrees that the Executive's employment creates a relationship of confidence
and trust between the Executive and the Company with respect to all Confidential
Information. At all times, both during the Executive's employment with the
Company and after its termination, the Executive will keep in confidence and
trust all such Confidential Information, and will not use or disclose any such
Confidential Information without the written consent of the Company, except as
may be necessary in the ordinary course of performing the Executive's duties to
the Company.
b. Assignment of Rights. Any and all information, data, inventions,
discoveries, materials, notebooks and other work product which the Executive
conceives, develops or acquires during her employment with the Company or within
six (6) months after the termination of Executive's employment with the Company,
which directly or indirectly relates to work performed for the Company shall be
the sole and exclusive property of the Company. The Executive shall promptly
execute any and all documents necessary and take such further actions as the
Company may deem necessary to assign any and all of the Executive's right, title
and interest in such property to the Company. The Executive may publish research
results after the Company, in its sole discretion, has reviewed, for purposes of
determining patentability and maintaining trade secrets, and has approved the
proposed publication.
c. Intellectual Property. During the Executive's employment at the Company,
the Executive shall promptly assist with and execute any and all applications,
assignments or other documents which an officer or director of the Company shall
deem necessary or useful in order to obtain and maintain patent, trademark or
other intellectual property protection for the Company's products or services.
After the termination date of her employment with the Company, the Executive
shall use reasonable efforts to assist the Company on intellectual property
matters as they relate to her employment, and the Company shall reasonably
compensate the Executive for her time and expense.
d. Documents, Records, etc. All documents, records, data, apparatus,
equipment and other physical property, whether or not pertaining to Confidential
Information, which are furnished to the Executive by the Company or are produced
by the Executive in connection with the Executive's employment will be and
remain the sole property of the Company. The Executive will return to the
Company all such materials and property as and when requested by the Company. In
any event, the Executive will return all such materials and property
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immediately upon termination of the Executive's employment for any reason. The
Executive will not retain with the Executive any such material or property or
any copies thereof after such termination.
e. Noncompetition and Nonsolicitation. During the Term and for one (1) year
thereafter, the Executive (i) will not, directly or indirectly, whether as
owner, partner, shareholder, consultant, agent, employee, co-venturer or
otherwise, engage, participate, assist or invest in any Competing Business (as
hereinafter defined); (ii) will refrain from directly or indirectly employing,
attempting to employ, recruiting or otherwise soliciting, inducing or
influencing any person to leave employment with the Company (other than
terminations of employment of subordinate employees undertaken in the course of
the Executive's employment with the Company); and (iii) will refrain from
soliciting or encouraging any customer or supplier to terminate or otherwise
modify adversely its business relationship with the Company. The Executive
understands that the restrictions set forth in this Section 7(e) are intended to
protect the Company's interest in its Confidential Information and established
employee, customer and supplier relationships and goodwill, and agrees that such
restrictions are reasonable and appropriate for this purpose. For purposes of
this Agreement, the term "Competing Business" shall mean a business enterprise,
whether for profit or not for profit, engaged in the research, development or
marketing or products or services in or relating to T Cell antigen receptor,
complement receptor or other technology fields or business in which the Company
is engaged or the Company has investigated entering during the Executive's
employment. Notwithstanding the foregoing, the Executive may own up to one
percent (1%) of the outstanding stock of a publicly held corporation which
constitutes or is affiliated with a Competing Business.
8. Third-Party Agreements and Rights. The Executive hereby confirms that the
Executive is not bound by the terms of any agreement with any previous Company
or other party which restricts in any way the Executive's use or disclosure of
information or the Executive's engagement in any business. The Executive
represents to the Company that the Executive's execution of this Agreement, the
Executive's employment with the Company and the performance of the Executive's
proposed duties for the Company will not violate any obligations the Executive
may have to any such previous Company or other party. In the Executive's work
for the Company, the Executive will not disclose or make use of any information
in violation of any agreements with or rights of any such previous Company or
other party, and the Executive will not bring to the premises of the Company any
copies or other tangible embodiments of non-public information belonging to or
obtained from any such previous employment or other party.
9. Litigation and Regulatory Cooperation. During and after the Executive's
employment, the Executive shall cooperate fully with the Company in the defense
or prosecution of any claims or actions now in existence or which may be brought
in the future against or on behalf of the Company which relate to events or
occurrences that transpired
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while the Executive was employed by the Company. The Executive's full
cooperation in connection with such claims or actions shall include, but not be
limited to, being available to meet with counsel to prepare for discovery or
trial and to act as a witness on behalf of the Company at mutually convenient
times. During and after the Executive's employment, the Executive also shall
cooperate fully with the Company in connection with any investigation or review
of any federal, state or local regulatory authority as any such investigation or
review relates to events or occurrences that transpired while the Executive was
employed by the Company. The Company shall reimburse the Executive for any
reasonable out-of-pocket expenses incurred in connection with the Executive's
performance of obligations pursuant to this Section 9.
10. Injunction. The Executive agrees that it would be difficult to measure any
damages caused to the Company which might result from any breach by the
Executive of the promises set forth in Section 7, and that in any event money
damages would be an inadequate remedy for any such breach. Accordingly, subject
to Section 11 of this Agreement, the Executive agrees that if the Executive
breaches, or proposes to breach, any portion of this Agreement, the Company
shall be entitled, in addition to all other remedies that it may have, to an
injunction or other appropriate preliminary equitable relief to restrain any
such breach without showing or proving any actual damage to the Company.
11. Arbitration of Disputes. Any controversy or claim arising out of or relating
to this Agreement or the breach thereof or otherwise arising out of the
Executive's employment or the termination of that employment (including, without
limitation, any claims of unlawful employment discrimination whether based on
age or otherwise) shall, to the fullest extent permitted by law, be settled by
arbitration in any forum and form agreed upon by the parties or, in the absence
of such an agreement, under the auspices of the American Arbitration Association
("AAA") in Boston, Massachusetts in accordance with the Employment Dispute
Resolution Rules of the AAA, including, but not limited to, the rules and
procedures applicable to the selection of arbitrators, except that the
arbitrator shall apply the law as established by decisions of the U.S. Supreme
Court, the Court of Appeals for the First Circuit and the U.S. District Court
for the District of Massachusetts in deciding the merits of claims and defenses
under federal law or any state or federal anti-discrimination law, and any
awards to the Executive for violation of any anti-discrimination law shall not
exceed the maximum award to which the Executive could be entitled under the
applicable (or most analogous) federal anti-discrimination or civil rights laws.
In the event that any person or entity other than the Executive or the Company
may be a party with regard to any such controversy or claim, such controversy or
claim shall be submitted to arbitration subject to such other person or entity's
agreement. Judgment upon the award rendered by the arbitrator may be entered in
any court having jurisdiction thereof. This Section 11 shall be specifically
enforceable. Notwithstanding the foregoing, this Section 11 shall not preclude
either party from pursuing a court action for the sole purpose of obtaining a
temporary restraining order or other preliminary equitable relief in
circumstances in which such relief is appropriate, including,
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without limitation, pursuant to Section 10; provided, that any other relief
shall be pursued through an arbitration proceeding pursuant to this Section 11.
12. Consent to Jurisdiction. To the extent that any court action is permitted
consistent with or requested to enforce Section 7, 10 or 11 of this Agreement,
the parties hereby consent to the jurisdiction of the Superior Court of the
Commonwealth of Massachusetts and the United States District Court for the
District of Massachusetts. Accordingly, with respect to any such court action,
the Executive (a) submits to the personal jurisdiction of such courts; (b)
consents to service of process; and (c) waives any other requirement (whether
imposed by statute, rule of court, or otherwise) with respect to personal
jurisdiction or service of process.
13. Integration. This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior
agreements between the parties with respect to any related subject matter.
14. Assignment; Successors and Assigns, Etc. Neither the Company nor the
Executive may make any assignment of this Agreement or any interest herein, by
operation of law or otherwise, without the prior written consent of the other
party; provided, that the Company may assign its rights under this Agreement
without the consent of the Executive in the event that the Company shall effect
a reorganization, consolidate with or merge into any other corporation,
partnership, organization or other entity, or transfer all or substantially all
of its properties or assets to any other corporation, partnership, organization
or other entity. This Agreement shall inure to the benefit of and be binding
upon the Company and the Executive, their respective successors, executors,
administrators, heirs and permitted assigns.
15. Enforceability. If any portion or provision of this Agreement (including,
without limitation, any portion or provision of any section of this Agreement)
shall to any extent be declared illegal or unenforceable by a court of competent
jurisdiction, then the remainder of this Agreement, or the application of such
portion or provision in circumstances other than those as to which it is so
declared illegal or unenforceable, shall not be affected thereby, and each
portion and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
16. Waiver. No waiver of any provision hereof shall be effective unless made in
writing and signed by the waiving party. The failure of any party to require the
performance of any term or obligation of this Agreement, or the waiver by any
party of any breach of this Agreement, shall not prevent any subsequent
enforcement of such term or obligation or be deemed a waiver of any subsequent
breach.
17. Notices. Any notices, requests, demands and other communications provided
for by this Agreement shall be sufficient if in writing and delivered in person
or sent by a nationally recognized overnight courier service or by registered or
certified mail, postage prepaid, return
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receipt requested, to the Executive at the last address the Executive has filed
in writing with the Company or, in the case of the Company, at its main offices,
attention of the Chief Executive Officer, and shall be effective on the date of
delivery in person or by courier or three (3) days after the date mailed.
18. Amendment. This Agreement may be amended or modified only by a written
instrument signed by the Executive and by a duly authorized representative of
the Company.
19. Governing Law. This is a Massachusetts contract and shall be construed under
and be governed in all respects by the laws of the Commonwealth of
Massachusetts, without giving effect to the conflict of laws principles of such
Commonwealth.
20. Counterparts. This Agreement may be executed in any number of counterparts,
each of which when so executed and delivered shall be taken to be an original;
but such counterparts shall together constitute one and the same document.
IN WITNESS WHEREOF, this Agreement has been executed as a sealed instrument
by the Company, by its duly authorized officer, and by the Executive, as of the
Effective Date.
T CELL SCIENCES, INC.
By:
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Date Xxxxx X. Xxxxx, Chairman
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Date Executive
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