EMPLOYMENT AGREEMENT
THIS AGREEMENT is made April 1, 1997 by and between BioTime, Inc. (the
"Company"), and Xxxxxx X. Xxxxxx, Esq. (the "Employee").
W I T N E S S E T H:
WHEREAS, the Company desires to employ Employee, and Employee is
willing to accept such employment, all on the terms and subject to the
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the terms and conditions
hereinafter set forth, the parties hereto agree as follows:
1. Employment. The Company hereby employs Employee, and Employee hereby
accepts employment with the Company on the terms and conditions herein set
forth.
2. Term of Agreement. This Agreement shall commence on April 1, 1997
and shall continue in effect until March 31, 2002 (the "Expiration Date"),
unless terminated pursuant to the express provisions of this Agreement.
3. Renewal. This Agreement shall be renewed automatically for an
additional one (1) year period on April 1, 2002 and on each anniversary thereof,
unless one party gives the other advance written notice of non-renewal at least
sixty (60) days prior to such date. Either party may elect not to renew this
Agreement with or without cause.
4. Position; Duties. Employee shall be employed in the position and
shall perform the duties and functions set forth on EXHIBIT A, and such
additional duties and functions as are normally carried out by an executive in a
comparable position with a developer of pharmaceutical or medical products, and
as the Board of Directors or a duly authorized officer of the Company shall from
time to time reasonably determine. Employee shall devote his or her best
efforts, skills and abilities to the Company's business pursuant to, and in
accordance with, reasonable business policies and procedures, as fixed from time
to time by the Board of Directors of the Company (the "Board of Directors").
Employee covenants and agrees that he or she will faithfully adhere to and
fulfill such policies as are established from time to time by the Board of
Directors.
5. Compensation
5.1 Salary and Bonuses. During the term of this Agreement, the
Company shall pay to the Employee:
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5.1.1 Base Salary. A base annual salary (the "Base Salary") in
the following amounts: Ninety-Two Thousand Dollars ($92,000) during the year
beginning April 1, 1997 and ending on March 31, 1998; Ninety-Nine Thousand
Dollars ($99,000) during the year beginning April 1, 1998 and ending on March
31, 1999; One Hundred Six Thousand Dollars ($106,000) during the year beginning
April 1, 1999 and ending March 31, 2000; One Hundred Thirteen Thousand Dollars
($113,000) during the year beginning April 1, 2000 and ending March 31, 2001;
and One Hundred Twenty Thousand Dollars ($120,000) during the year beginning
April 1, 2001 and ending March 31, 2002; and One Hundred Twenty-Seven Thousand
Dollars ($127,000.00) during the year beginning April 1, 2002 and ending March
31, 2003. The Base Salary shall be payable in equal semi-monthly installments or
in such other installments as may be agreed upon between the parties. The Base
Salary may be increased from time to time in the discretion of the Board of
Directors.
5.1.2 The Company shall pay all premiums on Employee's present
disability policy.
5.1.3 Bonuses. The Company may pay Employee such bonuses, if
any, as the Board of Directors may, from time to time determine.
5.2 Benefit Plans. Employee shall be eligible (to the extent
he or she qualifies) to participate in any retirement, pension, life, health,
accident and disability insurance, stock option plan or other similar employee
benefit plans which may be adopted by the Company (or any other member of a
consolidated group of which the Company is a part) for its executive officers or
other employees.
5.3 Expense Reimbursement. The Company shall reimburse
Employee for all reasonable expenses incurred by Employee in connection with the
performance of his or her employment duties, subject to the Company's policies
and procedures in effect from time to time, and provided that Employee submits
supporting vouchers.
5.4 Vacation; Sick Leave. Employee shall be entitled to four
weeks of vacation, without reduction in compensation, during each calendar year.
Such vacation shall be taken at such time as is consistent with the needs and
policies of the Company. All vacation days shall accrue based upon days of
service. The Company may, from time to time, adopt policies governing the
disposition of unused vacation days remaining at the end of the Company's fiscal
year; which policies may govern whether unused vacation days will be paid, lost,
or carried over into subsequent fiscal years. Employee shall also be entitled to
leave from work, without reduction in compensation, due to illness to the extent
allowed by the Company consistent with its policies and procedures and subject
to the provisions of this Agreement governing termination due to disability,
sickness or illness.
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6. Termination. This Agreement shall terminate prior to the Expiration
Date upon the happening of any of the following events:
6.1 Death. Automatically and without notice upon the death of
Employee;
6.2 Voluntary Termination by Employee. By Employee voluntarily
leaving the employ of the Company with or without the consent of the Company
(which Employee shall be entitled to do upon thirty (30) days written notice);
6.3 Disability. Upon written notice of termination from the
Company to Employee, after Employee becomes disabled, either totally or
partially, for a period of ninety (90) days during any one hundred fifty (150)
day period, so that he or she is prevented from performing his or her principal
duties pursuant to this Agreement; provided, that the Company's obligation to
pay the compensation due under Section shall continue until this Agreement is so
terminated.
6.4 For Cause. Upon discharge of Employee, on written notice,
by the Board of Directors on grounds of: (i) conviction of a crime of moral
turpitude; (ii) deliberate failure to carry out the reasonable policies of the
Board of Directors, as they may relate to Employee's duties under this
Agreement; (iii) chronic alcohol or drug abuse; (iv) fraud, embezzlement or
misappropriation of Company assets; (v) disloyal, dishonest or illegal conduct
in the course of his or her employment; or (vi) a material default or breach of
any of the covenants made by Employee in this Agreement. The written notice
delivered by the Board of Directors shall specify the ground for termination and
shall be supported by a statement of all relevant facts constituting cause for
termination. Any termination under this Section shall be deemed a termination
for "cause".
6.5 Notice and Opportunity to Cure. If the Company intends to
terminate this Agreement under clause (ii) or (vi) of Section , and if all of
Employee's acts or omissions giving rise to such determination to terminate this
Agreement are, in the reasonable determination of the Board of Directors,
susceptible to substantially complete cure by Employee within a period of thirty
(30) days, the written notice given to Employee pursuant to Section shall state
that the effective date of termination shall be thirty (30) days from the date
of such notice, and such notice shall be rescinded if Employee effects a
substantially complete cure within such thirty (30) day period.
6.6 Payment of Compensation After Termination . Upon the
occurrence of any events set forth in Sections through hereof or Section , the
Company shall be obligated to pay to Employee (or Employee's estate in the event
of Employee's death) (i) the compensation due him or her under Section up to the
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date of termination; (ii) any unpaid bonus previously awarded by the Board of
Directors; and (iii) compensation for any earned but unused vacation, which
compensation shall be paid at the Base Salary rate in effect at the time such
unused vacation accrued.
6.7 Payment Upon Termination by the Company Without Cause. In
the event this Agreement is terminated by the Company for a reason other than
one of those set forth in Section or Section or Section , the Company shall be
required to continue to pay Employee, as severance compensation, the
compensation due him or her under Section , for the unexpired term of this
Agreement (without regard to Section 3). Such severance compensation shall be
paid for a period equal to the number of weeks remaining in the unexpired term
of this Agreement (without regard to Section ). Employee may elect to receive
the severance compensation (or such part of the severance compensation as shall
then remain unpaid) in a lump sum. Such election may be made by written notice
to the Company, and if such election is made the lump sum shall be paid by the
Company within ten (10) days after such notice.
6.8 Change of Control. Notwithstanding the foregoing, the
Company or its successor, or Employee may terminate this Agreement, with or
without cause, in connection with a Change of Control of the Company. In the
event of such a termination, the Company shall pay Employee on the date of
termination a lump sum payment equal to the greater of (a) 2.99 times Employee's
"Base Amount" and (b) the compensation due him or her under Section for the
unexpired term of this Agreement (without regard to Section ). Such payment
shall be in addition to any unpaid amounts otherwise then due Employee under
Section of this Agreement. Any termination of this Agreement, except termination
under Sections through , within twelve months after either (i) the earliest date
on which the Company enters into a letter of intent, memorandum of agreement, or
similar document leading to a Change of Control, or (ii) the effective date of a
Change of Control, shall be deemed conclusively to be a termination in
connection with a Change of Control. If the Company or its successor causes a
material reduction in Employee's responsibilities or compensation after a Change
of Control, then Employee may at Employee's option terminate this Agreement
under Section any time within one hundred eighty (180) days after such
reduction, and such resignation shall be deemed a termination by the Company in
connection with a Change of Control and shall entitle Employee to the benefits
of this Section . For purposes of this Agreement, the following definitions
shall apply.
6.8.1 "Change of Control" means (i) the acquisition of Voting
Securities of the Company by a Person or an Affiliated Group entitling the
holder thereof to elect a majority of the directors of the Company; provided,
that an increase in the amount of Voting Securities held by a Person or
Affiliated Group who previously held sufficient Voting Securities to elect a
majority of the directors shall not constitute
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a Change of Control; and provided, further, that an acquisition of Voting
Securities by one or more Persons acting as an underwriter in connection with a
sale or distribution of such Voting Securities shall not constitute a Change of
Control under this clause (i); (ii) the sale of all or substantially all of the
assets of the Company; or (iii) a merger or consolidation of the Company with or
into another corporation or entity in which the stockholders of the Company
immediately before such merger or consolidation do not own, in the aggregate,
Voting Securities of the surviving corporation or entity (or the ultimate parent
of the surviving corporation or entity) entitling them, in the aggregate (and
without regard to whether they constitute an Affiliated Group) to elect a
majority of the directors or persons holding similar powers of the surviving
corporation or entity (or the ultimate parent of the surviving corporation or
entity); provided, however, that in no event shall any transaction described in
clauses (i), (ii) or (iii) be a Change of Control if all of the Persons
acquiring Voting Securities or assets of the Company or merging or consolidating
with the Company are one or more direct or indirect subsidiary or parent
corporations of the Company.
6.8.2 "Voting Securities" means shares of capital stock or
other equity securities entitling the holder thereof to regularly vote for the
election of directors (or for person performing a similar function if the issuer
is not a corporation), but does not include the power to vote upon the happening
of some condition or event which has not yet occurred.
6.8.3 "Person" means any natural person or any corporation,
partnership, limited liability company, trust, unincorporated business
association or other entity.
6.8.4 "Affiliated Group" means (i) a Person and one or more
other Persons in control of, controlled by, or under common control with such
Person; and (ii) two or more Persons who, by written agreement among them, act
in concert to acquire Voting Securities entitling them to elect a majority of
the directors of the Company.
7. Renegotiation. Employee shall be entitled to seek a modification of
this Agreement prior to the Expiration Date if the market value of the Company's
outstanding capital stock exceeds $100,000,000. The Company will negotiate in
good faith with Employee in connection with any such request by the Employee for
such a modification of this Agreement.
8. Intellectual Property Agreement. Employee acknowledges that the
Intellectual Property Agreement concurrently executed and delivered by Employee
shall remain in effect and shall not be affected by the terms of this Agreement
or the termination of this Agreement.
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9. Entire Agreement. The provisions of this Agreement, including the
exhibits attached to this Agreement, constitute the entire agreement between
Employee and the Company with respect to the subject matter of this Agreement,
and supersede any prior oral understanding. No modification, supplement or
discharge of this Agreement shall be effective unless in writing and executed on
behalf of the party to be charged.
10. Waiver. No waiver by either party of any condition, term or
provision of this Agreement shall be deemed to be a waiver of any proceeding or
succeeding breach of the same or of any other condition, term or provision of
this Agreement.
11. Assignability. This Agreement, and the rights and obligations of
the parties under this Agreement, may not be assigned by Employee. The Company
may assign any of its rights and obligations under this Agreement to any
successor or surviving corporation resulting from a merger, consolidation, sale
of assets or stock, or other corporate reorganization, upon condition that the
assignee shall assume, either expressly or by operation of law, all of the
Company's obligations under this Agreement.
12. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
13. Construction. This Agreement shall be construed in accordance with
the laws of the State of California.
14. Survival. This Section and the covenants and agreements contained
in Sections 5.3, 6.6, 6.7, and 6.8 of this Agreement shall survive termination
of Employee's employment.
15. Notices. Any notices or other communication required or permitted
to be given under this Agreement shall be in writing and shall be sent by United
States mail, first class certified or registered postage prepaid, return receipt
requested, or personally delivered to the parties at the following addresses:
To the Company: BioTime, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: President
To Employee: Xxxxxx X. Xxxxxx, Esq.
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
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A notice sent by certified or registered mail shall be deemed delivered on the
fourth day after deposit in the United States mail, postage prepaid, and
addressed as aforesaid. Any party may change its address for notice by giving
notice to the other party in the manner provided in this Section.
16. Unenforceable Provisions. If all or part of any one or more of the
provisions contained in this Agreement is for any reason held to be invalid,
illegal, or unenforceable in any respect, the invalidity, illegality, or
unenforceability shall not affect any other provisions, and this Agreement shall
be equitably construed as if it did not contain the invalid, illegal, or
unenforceable provision.
17. Section Headings. Section headings are for the convenience of the
parties and do not form a part of this Agreement.
18. Section and Other References. References in this Agreement to
Sections, subsections, and Exhibits are references to sections and subsections
in this Agreement and exhibits attached to this Agreement unless specified
otherwise.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
/s/ Xxxxxx X. Xxxxxx
EMPLOYEE: _______________________________
Xxxxxx X. Xxxxxx, Esq.
COMPANY: BIOTIME, INC.
By: __________________________
Title: __________________________
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EXHIBIT A
DUTIES AND RESPONSIBILITIES
The Executive Vice President shall participate in formulating the Company's
operating and financial plans in conjunction with the Board of Directors and the
Corporate Officers. In such capacity, and subject to the ultimate authority of
the Board of Directors, the Executive Vice President shall assist in the review
and approval or disapproval of proposed plans, programs, and contracts for joint
ventures and investments in other corporations, partnerships and similar
entities, and for obtaining debt and equity financing for the Company. As
requested by the Board of Directors or the Chief Executive Officer, the
Executive Vice President shall represent the Company in the negotiation of
contracts and agreements with third parties, including, but not limited to,
license distribution and manufacturing contracts in regulatory matters involving
government or administrative bodies having jurisdiction over the Company or its
operations, in obtaining debt and equity financing, and in other aspects of the
Company's affairs.
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