FIRST AMENDMENT TO EMPLOYMENT LETTER AGREEMENT
Exhibit 99.3
FIRST AMENDMENT TO EMPLOYMENT LETTER AGREEMENT
This FIRST AMENDMENT TO EMPLOYMENT LETTER AGREEMENT (this “Amendment”) is made and entered
into effective as of June 15, 2007 by and between HELIX BIOMEDIX, INC., a Delaware corporation
(“Helix”), and XXXXX X. XXXXXX. (“Employee”).
RECITALS
WHEREAS, Helix and Employee entered into a letter agreement dated July 2, 2004 (the
“Agreement”); and
WHEREAS, Helix and Employee wish to amend the Agreement as provided herein.
AGREEMENT
NOW, THEREFORE, in consideration of the premises, the mutual covenants of the parties
hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. The last paragraph of Section 4 of the Agreement is hereby amended and restated in its
entirety as follows:
“ANNUAL REVIEW:
The Board of Directors shall review your compensation and performance annually, and
you shall be eligible for an increase in your base salary or other compensation
based on such review.”
2. The first paragraph of Section 7 of the Agreement is hereby amended and restated in its
entirety as follows:
“Your employment with the Company will be on an “at will” basis, meaning that either
you or the Company may terminate your employment at any time for any reason or no
reason, without further obligation or liability. Notwithstanding the foregoing, in
the event that the Company terminates this employment relationship without Cause (as
defined below) or you terminate this employment relationship with Good Reason (as
defined below), the Company will pay you any unpaid annual base salary, any amount
due but not paid under any Company incentive compensation plan, earned but unused
vacation and bonuses due (if any) for services already performed (subject to normal
withholding and other deductions) to the effective date of termination of
employment; and monthly severance payments equivalent to six (6) months base salary.
These payments will be made in accordance with the Company’s customary payroll
schedule, minus deductions required by law. In addition, any options to purchase
capital stock of the Company held by you on the date of such termination shall
automatically be deemed to be fully vested and exercisable. The Company will issue
and file appropriate tax documents in connection with any severance payments.
Payment of the above-described severance compensation and benefits is conditioned on
the execution by you of a full mutual release of all claims related to your
employment with or termination from the Company in substantially the form attached
hereto as Exhibit A. Such a release will not include accrued and unpaid wages and
benefits, claims to industrial insurance, vested pension benefits or indemnification
rights. You will have the duty to mitigate the costs to the Company by attempting
to obtain other employment within a reasonable time after termination. During the
period you are entitled to receive severance payments hereunder, the monthly payment
otherwise due from the Company shall be reduced by fifty percent (50%) of your
monthly compensation from such other employment. For purposes hereof, the term
“Cause” shall mean if you (i) are convicted of a felony or any crime involving
dishonesty, breach of trust, or physical harm to any person or relating to the
business of the Company or any successor company (or enter a pleas of guilty or nolo
contendere with respect thereto); (ii) repeatedly report to work under the influence
of alcohol or illegal drugs;
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(iii) substantially and repeatedly fail to perform the duties as reasonably directed
by the President of the Company or any successor company, (iv) are found by a court
of competent jurisdiction to have made unauthorized use or disclosure of
confidential information or trade secrets; or (v) engage in gross negligence or
willful misconduct in carrying out your duties as an employee of the Company or any
successor company, and the term “Good Reason” shall mean the occurrence of any of
the following events without your consent: (i) a demotion or other material
reduction in the nature or status of your responsibilities or (ii) a material
reduction in your annual base salary or any failure by the Company to satisfy its
duty to compensate you as required hereunder.”
3. Exhibit A attached hereto shall become Exhibit A to the Agreement:
4. The effective date of this Amendment shall be June 15, 2007.
5. The parties hereto hereby acknowledge the continuing effect of the Agreement except as
specifically modified by this Amendment.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the day and year
first above written.
HELIX BIOMEDIX, INC.
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EMPLOYEE: | ||
By: R. Xxxxxxx Xxxxxx
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Xxxxx X. Xxxxxx | ||
President and CEO |
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EXHIBIT A
WAIVER AND RELEASE
For and in consideration of the severance payments and benefits set out in the agreement attached
hereto, the undersigned (“Employee”), on behalf of himself and his agents, heirs, successors and
assigns, expressly waives any claims against Helix BioMedix, Inc. (the “Company”) and releases the
Company (including its officers, directors, stockholders, managers, agents and representatives)
from any and all claims, demands, liabilities, damages, obligations, actions or causes of action of
any kind, known or unknown, past or present, arising out of, relating to, or in connection with
Employee’s employment, termination of employment, or the holding of any office with the Company or
any other related entity. The claims released by the Employee include, but are not limited to,
claims for defamation, libel, invasion of privacy, intentional or negligent infliction of emotional
distress, wrongful termination, constructive discharge, breach of contract, breach of the covenant
of good faith and fair dealing, breach of fiduciary duty, fraud, or for violation of any federal,
state or other governmental statute or ordinance, including, without limitation, Title VII of the
Civil Rights Act of 1964, the federal Age Discrimination in Employment Act, the Americans with
Disabilities Act, the Family and Medical Leave Act, the Employment Retirement Income Security
Program or any other legal limitation on the employment relationship.
This Waiver and Release shall not waive or release claims (1) where the events in dispute first
arise after execution of this Waiver and Release; (2) for rights or benefits due under the
agreement attached hereto; or (3) relating to Employee’s rights to indemnity as a corporate officer
of Company.
Employee agrees he has been provided the opportunity to consider whether to enter into this Waiver
and Release and has voluntarily chosen to enter into it on this date. This Waiver and Release
shall be effective when signed. Employee acknowledges that he is voluntarily executing this Waiver
and Release, that he has carefully read and fully understands all aspects of this Waiver and
Release and the attached agreement, that he has not relied upon any representations or statements
not set forth herein or made by the Company’s agents or representatives, that he has been advised
to consult with an attorney prior to executing this Waiver and Release, and that, in fact, he has
consulted with an attorney of his choice as to the subject matter and effect of this Waiver and
Release.
Dated: ___, 20___
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Employee |
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