EXHIBIT 10.20
EMPLOYMENT AGREEMENT
BY AND BETWEEN
ENDOREX CORPORATION
AND
XXXXXXX X. XXXXX
Agreement made this 29th day of October, 2001, between Endorex Corporation,
a Delaware corporation (the "Company") and Xxxxxxx X. Xxxxx (the "Executive"),
superseding an Employment Agreement between the parties dated May 17, 2000 and
becoming effective upon the later of: 1) the consummation of the merger with
acquisition of (the "Merger") Corporate Technology Development ("CTD"), and 2)
the execution by Xx. Xxxx Xxxx of his employment agreement as Chief Executive
Officer of the Company (the "Effective Date").
The Executive is currently employed by the Company as President and Chief
Executive Officer.
Whereas the Company desires post - Merger to continue the employment of the
Executive as its President and Chief Operating Officer, and the Executive
desires to continue to be employed by the Company in those capacities.
The Company and the Executive desire to set forth in this Agreement the
terms and conditions on which the Executive will continue to be employed by the
Company as its President and Chief Operating Officer.
Accordingly, in consideration of the promises and the respective covenants
and agreements of the parties herein contained, and intending to be legally
bound hereby, the parties hereto agree as follows:
1. Employment
The Company hereby agrees to continue to employ the Executive, and the
Executive hereby agrees to continue to serve the Company, on the terms and
conditions set forth herein. During the period for which he is employed as
President and Chief Operating Officer, or other positions of equal or greater
status or authority, the Company will use its best efforts to maintain the
Executive has a member of the Board of Directors of the Company.
2. Term
The employment of the Executive by the Company which commenced with the
action by the Board of Directors of the Company (the "Board") on July 25th, 1996
shall automatically continue as hereinafter provided.
3. Position and Duties
The Executive shall serve as President and Chief Operating Officer of the
Company, and
shall have such responsibilities and authority consistent with those positions
as may, from time to time, be assigned to the Executive by the CEO and/or the
Board of Directors of the Company (the "Board"). The Executive shall devote
substantially all his working time and efforts to the business and affairs of
the Company, provided, however, that the executive shall be permitted to spend a
portion of his working time as a consultant or director (or both) for any
person, firm or corporation that does not engage in direct competition with the
Company, or any of its subsidiaries, in the development, research relating to,
manufacture, processing, marketing, distribution, or sale of any products that
are or were the subject of research activities, developed, licensed,
manufactured, processed, distributed, or sold by the Company, or any of its
subsidiaries, at any time during the previous twelve (12) months of his
employment by the Company ("Direct Competition"). Executive may accept
directorships in for-profit and not-for profit corporations, whether public or
private, except any for-profit corporation that engages in Direct Competition
with the Company, or any of its subsidiaries. The Executive will advise the
Board or the Executive Committee of the Board of any such activities in writing
in advance of his acceptance of an outside directorship or consultantship.
Approval will be automatic if no concern is raised in writing by the Board or
the Executive Committee within seven (7) days.
4. Place of Performance
In connection with the Executive's employment by the Company, the Executive
shall be based at the principal executive offices of the Company, currently
located in Lake Forest, Illinois, except for required travel on the Company's
business.
5. Compensation and Related Matters
(a) SALARY. During the period of the Executive's employment
hereunder, the Company shall pay to the Executive a salary at a rate of not less
than $254,600 per annum in equal monthly or other installments. The Executive's
salary shall be subject to an annual review near or shortly after the end of
each calendar year during the Term of this Agreement.
(b) BONUSES. The Executive shall be entitled to an annual bonus of up
to 50% of his base salary based upon meeting mutually acceptable objectively
measurable milestones. The Company's assessment of the Executive's achievement
of the milestones shall be shared by the Compensation Committee in writing to
the Executive within a reasonable time after the conclusion of the bonus period
being assessed.
(c) EXPENSES. The Company shall reimburse Executive for all normal,
usual and necessary expenses incurred by Executive in furtherance of the
business and affairs of the Company, against receipt by the Company of
appropriate vouchers or other proof of the Executive's expenditures and
otherwise in accordance with such expense reimbursement policy as may, from time
to time, be adopted by the Board of Directors of the Company.
(d) OTHER BENEFITS. The Company shall provide to Executive paid
medical (including for the benefit of the dependents of Executive), long-term
disability and life insurance up to $1,000,000. In addition, the Company shall
maintain in full force and effect, and the Executive shall be entitled to
participate in, all of its employee benefit plans and arrangements in
effect on the date hereof or plans or arrangements providing the Executive with
at least equivalent benefits thereunder (including, without limitation, each
pension and retirement plan. and arrangement, supplemental pension and
retirement plan and arrangement, stock option plan, life insurance and health
and accident plan and arrangement, medical insurance plan, disability plan,
survivor income plan, relocation plan and vacation plan). The Company shall not
make any changes in such plans or arrangements which would adversely affect the
Executive's rights or benefits thereunder, unless such change occurs pursuant to
a program applicable to all executives of the Company and does not result in a
proportionately greater reduction in the rights of or benefits to the Executive
as compared with any other executive of the Company. The Executive shall be
entitled to participate in or receive benefits under any employee benefit plan
or arrangement made available by the Company in the future to its executives and
key management employees, subject to and on a basis consistent with the terms,
conditions and overall administration of such plans and arrangements. Nothing
paid to the Executive under any plan or arrangement presently in effect or made
available in the future shall be deemed to be in lieu of the salary payable to
the Executive pursuant to paragraph (a) of this Section.
(e) VACATIONS. The Executive is currently entitled to four (4) weeks
paid vacation and upon reaching his ~ anniversary of employment with the company
on Aug. 19th, 2002, shall be entitled to five (5) weeks of paid vacation in each
year of his employment or whatever period is provided for by the Company's
written policy, whichever is greater. The Executive shall also be entitled to
all paid holidays given by the Company to its executives.
(g) SERVICES FURNISHED. The Company shall furnish the Executive with
office space, stenographic assistance and such other facilities and services as
shall be suitable to the Executive's position and adequate for the performance
of his duties as set forth in Section 3 hereof.
(h) OPTIONS. From time to time, at the discretion of the Board, or
the appropriate committee thereof, the Executive may be granted options, in
addition to those previously granted, to purchase shares of the Company's common
stock. For the 25,000 options granted February 1999, all unvested options
granted shall be immediately fully vested and immediately fully exercisable on
the Effective Date of the Merger. For the 160,000 options granted February 2001
by the Company's Board of Directors, 45,000 of the Option Shares shall vest and
become exercisable upon the Effective Date. 40,000 of the Option shares shall
vest and become exercisable on the first anniversary of the grant date; 40,000
of the Option Shares shall vest and become exercisable on the second anniversary
of the grant date; and the remaining 35,000 of the Option Shares shall vest and
become exercisable on the third anniversary of the grant date.
(i) "MERGER INTEGRATION AND STAY" BONUS PROGRAM. If Executive remains
employed by the Company for one hundred eighty (180) days or more after the
Merger with CTD or its affiliates ("CTD Deal"), Executive shall as of the next
business day receive a one- time special "Merger integration and stay" bonus of
fifteen percent (15%) of his annual base salary. If Executive remains employed
by the Company for one year or more after the CTD Deal, he shall receive as of
the business day first following day 365 an additional "stay" bonus of ten
percent (10%) of his annual base salary, on top of the 15% "stay" bonus for the
first 180 days. These " stay" bonuses shall not be considered part of the
Executive's existing bonus program and shall be in addition to all other bonuses
to which Executive is entitled.
3
6. Offices
The Executive agrees to serve without additional compensation, if elected
or appointed thereto, as a Director of any of the Company's subsidiaries and in
one or more executive offices of any of the Company's subsidiaries, provided
that the Executive is indemnified for serving in any and all such capacities on
a basis no less favorable than is currently provided by Article VII of the
Company's By-Laws. Executive agrees that, upon termination of his employment
with the Company for any reason whatsoever, he will resign from all positions as
an executive officer and Director of the Company and all of its subsidiaries.
7. Confidential Information
Executive covenants and agrees that he will not (except as required in the
course of his employment), while in the employment of the Company or thereafter,
communicate or divulge to, or use for the benefit of himself, or any other
person, firm, association or corporation, without the consent of the Company,
any information concerning any inventions, discoveries, improvements; processes,
formulas, apparatus, equipment, methods, trade secrets, research, secret data,
costs or uses or purchasers of the Company's products, research activities, or
services, or other confidential matters possessed, owned, or used by the Company
that may be communicated to, acquired by, or learned of by the Executive in the
course of, or as a result of, his employment with the Company. Provided,
however, that Confidential Information shall not include information that is or
becomes generally known to others in the industry by any means other than a
violation of this section by Executive. All records, files, memoranda, reports,
price lists, customer lists, drawings, plans, sketches, documents, equipment,
and the like, relating to the business of the Company, which the Company shall
use or prepare or come into contact with, shall remain the sole property of the
Company and shall be surrendered by the Executive to the Company upon
termination of his employment or upon request of the Board.
8. Inventions Discovered by Executive
The Executive shall promptly disclose to the Company any invention,
improvement, discovery, process, formula, or method or other intellectual
property, whether or not patentable or copyrightable (collectively,
"Inventions"), conceived or first reduced to practice by the Executive, either
alone or jointly with others, while performing services hereunder (or, if based
on any Confidential Information, within one (1) year after the Term), (a) which
pertain to any line of business activity of the Company, whether then conducted
or then being actively planned by the Company, with which the Executive was or
is involved, (b) which is developed using time, material or facilities of the
Company, whether or not during working hours or on the Company premises, or (c)
which directly relates to any of the Executive's work during the Term, whether
or not during normal working hours. The Executive hereby assigns to the Company
all of the Executive's right, title and interest in and to any such Inventions.
During and after the Term, the Executive shall execute any documents necessary
to perfect the assignment of such Inventions to the Company and to enable the
Company to apply for, obtain and enforce patents, trademarks and copyrights in
any and all countries on such Inventions, including, without limitation, the
execution of any instruments and the giving of evidence and testimony, without
further compensation beyond the Executive's agreed compensation during the
course of the Executive's employment. All such acts shall be done without cost
or expense to Executive.
Executive shall be compensated for the giving of evidence or testimony after the
term of Executive's employment at the rate of $2,400/day (each day to consist of
8 hours). Without limiting the foregoing, the Executive further acknowledges
that all original works of authorship by the Executive, whether created alone or
jointly with others, related to the Executive's employment with the Company and
which are protectable by copyright, are "works made for hire" within the meaning
of the United States Copyright Act, 17 U.S.C. (5) 101, as amended, and the
copyright of which shall be owned solely, completely and exclusively by the
Company. If any Invention is considered to be work not included in the
categories of work covered by the United States Copyright Act, 17 U. S. C. (S)
101, as amended, such work is hereby assigned or transferred completely and
exclusively to the Company. The Executive hereby irrevocably designates counsel
to the Company as the Executive's agent and attorney-in-fact to do all lawful
acts necessary to apply for and obtain patents and copyrights and to enforce the
Company's rights under this Section. This Section 5 shall survive the
termination of this Agreement. Any assignment of copyright hereunder includes
all rights of paternity, integrity, disclosure and withdrawal and any other
rights that may be known as or referred to as "moral rights" (collectively
"Moral Rights"). To the extent such Moral Rights cannot be assigned under
applicable law and to the extent the following is allowed by the laws in the
various countries where Moral Rights exist, the Executive hereby waives such
Moral Rights and consents to any action of the Company that would violate such
Moral Rights in the absence of such consent. The Executive agrees to confirm any
such waivers and consents from time to time as requested by the Company.
9. Competition
(a) During the period of the Executive's employment by the Company,
and for a period of six (6) months after such employment (regardless of the
reasons for termination of employment), Executive will not (i) engage in~ (ii)
have any interest in any person, firm, or corporation that engages in; or (iii)
perform any services for any person, firm, or corporation that engages in
competition with the Company, or any of its subsidiaries in the development,
research relating to, manufacture, processing, marketing, distribution, or sale
of any products that were the subject of research activities, developed,
licensed, manufactured, processed, distributed, or sold by the Company, or any
of its subsidiaries, at any time during the last twelve (12) months of his
employment by the Company, in any geographic area in which such business shall
be carried on.
(b) Executive will not, directly or indirectly, employ, solicit for
employment, or advise or recommend to any other person that they employ or
solicit for employment, any employee of the Company during the period of
Executive's employment by the Company and for a period of two (2) years
thereafter.
10. Termination
(a) Notwithstanding any provision of this Agreement to the contrary,
Executive's employment shall terminate upon his death, and the Company at any
time may terminate his employment by giving him written notice of such
termination (i) for cause, as hereinafter defined; (ii) if Executive shall
violate any of the provisions of Sections 7 or 8 hereof, or (iii) if Executive
shall become physically or mentally incapacitated and by reason thereof
unable to perform his duties hereunder with or without reasonable accommodation
for a period of ninety (90) consecutive days. For the purpose of clause (i) of
this Section 10, "for cause" shall mean any of the following events: (x)
conviction in a court of law of any crime or offense involving money or other
property of the Company, or any of its subsidiaries, or any felony, (y)
violation of specific written directions issued in good faith by the Board of
Directors of the Company, provided, however, no discharge shall be deemed "for
cause" under this clause (y) unless Executive shall have first received written
notice from the Board of Directors of the Company advising of the acts or
omissions that constitute such violation, and such violation continues uncured
for a period of thirty (30) days after Executive shall have received such
notice, or (z) gross negligence or intentional misconduct by the Executive that
could cause material harm to the Company.
(b) Executive agrees that in the event of his voluntary resignation
other than for Good Reason as defined in Section 11, he will offer the board at
least 60 days written notice. If Executive terminates his Employment with the
Company pursuant to this section 10(b), the Executive shall only be entitled to
any unpaid compensation earned through the last day of Executive's employment.
11. Compensation Upon Termination
In the event Executive's employment hereunder is terminated other than for
cause (as defined in Section 10), disability (as defined in Section 10) or
death, or Executive terminates his employment for "Good Reason," he shall be
entitled to the following severance benefits: (i) his base salary for six (6)
months immediately following such termination (the "Severance Period") (plus,
the bonus provided for in Section 5(B) attributable to the year in which
termination of employment occurs, provided that such bonus payment shall be pro-
rated based on the proportion of the objectives achieved during the portion of
the bonus year worked by the Executive) to be paid according to the Company's
regular payroll practices, and base salary for an additional six (6) month
period commencing six (6) months following such termination (the "Additional
Severance Period"), paid according to the Company's regular payroll practices,
provided that such additional severance pay shall be reduced by the gross amount
of any earnings from employment or consulting received by Executive and during
the Additional Severance Period (Executive agrees to provide the Company with an
accurate account of such earnings received before the issuance of each monthly
check during the Additional Severance Period); (ii) continuation medical
coverage pursuant to COBRA, at the Company's expense, until the expiration of
the Additional Severance Period or until Executive obtains alternative coverage
from another source, whichever occurs first (the "Benefits Period"); (iii)
during the Benefits Period, a monthly cash payment equal to the Company's cost
of providing an individual policy term life insurance and group disability
coverage for Executive on the terms existing at the time of such termination,
plus, during the Severance Period only, a "gross up" payment in the amount
necessary to make the receipt of such cash payment tax-neutral to the Executive;
(iv) any stock options granted by the Company to the Executive, under this
Agreement or otherwise, that are unvested at the time of such termination shall
vest and become exercisable; and (v) Executive shall have up to one (1) year
after the effective date of such termination to exercise his stock options
(granted under this Agreement or otherwise) (Executive acknowledges that any
stock options not exercised within ninety (90) days after such effective date
will have been converted to non-qualified options.)
"Good Reason" shall be defined as any termination by the Executive within thirty
(30) days of the occurrence of any of the following events (i) a material breach
of this Agreement by the Company; (ii) a relocation of the Executive's primary
worksite to a location 40 miles or more from its then current location; or (iii)
within 30 days of a "Change of Control," as defined below, a material reduction
in the Executives duties or responsibilities, or a reduction in the Executive's
then current salary, bonus or benefit levels, provided that a change in the
Executive's titles shall not be considered Good Reason as long as he maintains
his title as Chief Operating Officer. The Executive shall give the Company 30
days' written notice and opportunity to cure prior to any termination for Good
Reason.
As used herein, a "Change of Control" shall be deemed to occur if. (i)
there shall be consummated (x) any consolidation or merger of the Company in
which the Company is not the continuing or surviving corporation or pursuant to
which the stock of the Company would be converted into cash, securities or other
property, other than a merger or consolidation of the Company in which the
holders of the Company's stock immediately prior to the merger or consolidation
hold more than fifty percent (50%) of the stock or other forms of equity of the
surviving corporation immediately after the merger, or (y) any sale, lease,
exchange or other transfer (in one transaction or a series of related
transactions) of all, or substantially all, the assets of the Company, or (ii)
the Board approves any plan or proposal for liquidation or dissolution of the
Company.
Nothwithstanding anything herein to the contrary, if Executive's employment
is terminated for any reason other than cause or if Executive terminates his
employment for any reason within one year after the date of this agreement,
Executive shall be entitled to all the severance benefits that are provided for
termination without cause or resignation for Good Reason.
12. Successors; Binding Agreement
(a) 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, by agreement in
form and substance satisfactory to the Executive 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 if no such succession had taken place. As
used in this Agreement, "Company" shall mean the Company as hereinbefore defined
and any successor to its business and/or assets as aforesaid, which executes and
delivers the agreement provided for in this Section 12, or which otherwise
becomes bound by all the terms and provisions of this Agreement by operation of
law.
(b) This Agreement, and all rights of the Executive hereunder, shall
inure to the benefit of and be enforceable by the Executive's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees if the Executive should die while any amounts are earned
but unpaid, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to the Executive's devisees,
legatees, or other designee or, if there be no such designee, to the Executive's
estate.
13. Notice
For the purposes of this Agreement, notices, demands and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or (unless otherwise specified)
mailed by United States registered mail, return receipt requested, postage
prepaid, addressed as follows:
If to the Executive:
Xxxxxxx X. Xxxxx
00 Xxxx Xxxxx Xxxxxx
Xxxx Xxxxxx, XX 00000
If to the Company:
Endorex Corporation
00000 Xxxxxxx Xxxxx, Xxxxx X
Xxxx Xxxxxx, XX 00000
Attention: Board of Directors
or to such other address as any party may have furnished to the others in
writing in accordance herewith' except that notices of change of address shall
be effective only upon receipt.
14. Miscellaneous
No provisions of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in writing signed by
the parties hereto. No waiver by either party hereto at any time of any breach
by the other party hereto of, or compliance with, any condition or provision of
this Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time. No agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party, which are not set forth expressly in this Agreement. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of Illinois.
15. Validity
The invalidity or unenforceability of any provision or provisions of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
16. Counterparts
This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original, but all of which together will constitute one
and the same instrument.
17. Arbitration
Subject to the specific limitation set forth below, any dispute or
controversy arising under or in connection with this Agreement shall be settled
exclusively by arbitration, conducted before a panel of three arbitrators, in
Chicago, Illinois, in accordance with the rules of the American Arbitration
Association then in effect. Judgment may be entered on the arbitrator's award in
any court having jurisdiction. The expense of such arbitration shall be borne by
the Company except that each party shall bear its own attorneys' fees. This
section shall not affect the Company's right to seek equitable relief in
connection with Executive's violations or threatened violations of Sections 7, 8
and/or 9 of this Agreement. The parties agree that the exclusive venue for the
resolution of such proceedings for equitable relief shall be in the federal
and/or state courts located in Lake County, Illinois, and the parties consent to
the jurisdiction of such courts.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
and year
ENDOREX CORPORATION
By: [ILLEGIBLE]
----------------------------
first above written. Name:
Title
Xxxxxxx X. Xxxxx
