EMPLOYMENT AGREEMENT
Exhibit
10.1
This
EMPLOYMENT AGREEMENT is entered into by and between Aeolus Pharmaceuticals,
Inc., a Delaware corporation, having a place of business at 00000 Xxxxxxxxx
Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx 00000 (“Aeolus”), and Xxxx
X. XxXxxxx,
having
a place of business at 00000 Xxxxxxxxx Xxxxx, Xxxxxx Xxxxxx, XX 00000
(“Employee”).
WHEREAS,
Aeolus wishes to engage Employee for certain services, and Employee wishes
to
provide such services, all subject to the terms and conditions of this
Agreement.
NOW,
THEREFORE, in consideration of the mutual promises hereinafter set forth, and
intending to be legally bound, Aeolus and Employee agree as
follows:
1. Services
to be Provided.
Employee shall have the title of President and Chief Operating Officer. During
the term of this Agreement, Employee shall perform for Aeolus services related
to duties and responsibilities commensurate with this title and the role of
Principal Executive Officer. Specific projects or assignments shall be
authorized on behalf of Aeolus by the Board of Directors of the
Company.
2. Compensation.
(a) Aeolus
shall compensate Employee $20,850.00 per month for the Services performed.
On
July 14th of each year the contract is in effect beginning on July 14, 2006,
Xxxx X. XxXxxxx will be granted a stock option to purchase 250,000 shares of
the
Aeolus Pharmaceuticals, Inc. Common Stock, par value $0.01 per share, with
an
exercise price equal to the closing stock price on the date of grant. The stock
option will vest on a monthly basis at a rate of 20,833 shares per month
following the date of grant as long as Employee continues to be an employee
of
or consultant to the Company, except in the case of a Sale of the Company,
in
which case, the options shall fully vest and be immediately exercisable. The
foregoing grants shall be subject to the Company’s standard form of stock option
grant agreement and the Company’s then existing stock plan.
During
the term of this Agreement, if there is a change of control such that another
entity acquires and/or merges with Aeolus, then Employee shall be entitled
to
receive a bonus of not less than $100,000 upon the execution and delivery of
definitive and enforceable agreements representing the earliest to occur of
a
Corporate Partnership or a Sale of the Company (each as defined below) during
the term of this agreement.
A
“Corporate Partnership” means a development or partnership with another life
sciences company for the joint development or commercialization of any of the
Company’s owned or in-licensed patent rights.
A
“Sale
of Company” means a merger, business combination, reorganization,
recapitalization or other transaction, which results in the stockholders of
the
Company who own at least fifty percent (50%) of the Company’s voting control
immediately prior to such transaction owning less than fifty percent (50%)
of
the surviving entity’s voting control immediately after such transaction, and/or
sale, transfer, lease or other disposition in any transaction or series of
transactions of all or substantially all of the assets of the Company.
(b) During
the term of the agreement, Xxxx X. XxXxxxx will be entitled to all of the
current customary employee benefits, subject to plan eligibility requirements.
In particular, Company will pay your premium for family medical insurance
coverage under the employee healthcare plan in place from time to time at the
Company for its employees and provide customary life insurance benefits. The
Company reserves the right to change or rescind its benefit plans and programs
and alter employee contribution levels in its discretion.
(c) Aeolus
shall reimburse Employee for out-of-pocket travel, hotel, telephone and meal
expenses reasonably incurred by Employee in performing the Services, provided
that the travel was approved in advance by Aeolus and the expenses are incurred
in accordance with Aeolus’ customary reimbursement policies.
3. Ownership
of Results.
(a)
All
findings, conclusions and data and all methods, inventions, discoveries, trade
secrets, techniques, processes and know-how, whether or not patentable, that
are
made by Employee, either alone or with others, in the performance of the
Services or which result, to any extent, from use of Aeolus’ materials, premises
or other property (collectively, “Inventions”) shall become the exclusive
property of Aeolus. Employee hereby assigns, transfers and conveys all of its
right, title and interest in and to any and all Inventions.
(b)
Upon
the
request and at the expense of Aeolus, Employee will execute and deliver any
and
all instruments and documents and take such other acts as may be necessary
or
desirable to document Aeolus’ rights or to enable Aeolus to apply for, prosecute
and enforce patents, trademark registrations or copyrights in any jurisdiction
with respect to any Inventions or to obtain any extension, validation, re-issue,
continuance or renewal of any such intellectual property right.
4. Confidentiality.
Employee will not, either during or for a period of ten (10) years after the
term of this Agreement, disclose to any third person or use the results of
the
Services or any confidential or proprietary information of Aeolus or its
collaborators (“Confidential Information”) for any purpose other than the
performance of the Services, without the prior written authorization of Aeolus.
This obligation shall not apply to information that:
(a)
is
now,
or hereafter becomes, through no act or failure to act on the part of Employee,
generally known or available;
(b)
is
known
by Employee at the time of receiving such information;
(c)
is
hereafter furnished to Employee by a third party, which did not acquire such
information directly or indirectly from Aeolus;
(d)
is
independently developed by Employee without use or knowledge of such
information; or
(e)
is
required by law, or order of any court or governmental authority to be disclosed
by Employee; in such event, however, Employee must give Aeolus sufficient
advance written notice to permit it to seek a protective order or other similar
order with respect to such Information and Employee may disclose only the
minimum Information required to be disclosed in order to comply, whether or
not
a protective order or similar order is obtained.
For
purposes of this Section 4, “Confidential Information” includes, without
limitation, the results of the Services and the structure and activity of
chemical compositions, know-how, data, process, technique, formula
work-in-process, patent applications, marketing methods and plans, pricing
information, manufacturing or engineering information and any other unpublished
information related to the business or financial condition of Aeolus and its
affiliates and business partners.
5. Term
and Termination.
(a) The
initial term of this Agreement shall begin as of July 1, 2006 and shall expire
June 30, 2007. Thereafter, this Agreement will automatically renew for one
(1)
year periods, unless either party gives to the other written notice at least
ninety (90) days prior to the commencement of the next year, of such party’s
intent not to renew this Agreement.
(b) This
Agreement may be terminated at the option of Aeolus at any time for cause.
For
purposes of this Agreement, “cause" shall be defined as any of the following,
provided however, that the board of directors of the Corporation by a duly
adopted resolution has determined the presence of such cause in good faith:
(i)
Xxxx X. XxXxxxx’ material breach of any of its duties and responsibilities under
this Agreement; or, (ii) Xxxx X. XxXxxxx' commission of an act of fraud or
willful misconduct or gross negligence in the performance of its duties.
Aeolus
shall have the right to terminate this Agreement without cause at any time
immediately upon written notice to Xxxx X. XxXxxxx, but any such termination
shall be without prejudice to Xxxx X. XxXxxxx’ rights to receive all payments
under this agreement. Such payment will be due and payable upon termination
of
this agreement.
Xxxx
X.
XxXxxxx shall have the right to terminate this Agreement with or without cause
at any time.
In
the
event of a termination, Aeolus shall be responsible for any compensation owed
to
Employee under Section 3 for Services rendered prior to the effective date
of
such termination; and Employee shall return any materials in Employee’s
possession that were supplied by Aeolus or generated by Employee under this
Agreement. The provisions of Sections 4 and 5 shall survive termination of
this
Agreement and the completion of the Services.
6. No
Conflicting Agreements.
Employee represents that it/he/she is not a party to any existing agreement
which would prevent Employee from entering into and performing this Agreement.
Employee will not enter into any other agreement that is in conflict with
Employee’s obligations under this Agreement, without Aeolus’ prior written
consent.
7. Entire
Agreement, Amendment and Assignment.
(a)
This
Agreement is the sole agreement between Employee and Aeolus with respect to
the
Services to be performed hereunder and it supersedes all prior agreements and
understandings with respect thereto, whether oral or written.
(b)
No
modification to any provision of this Agreement shall be binding on a party
unless in writing and signed by the party to be bound.
(c)
All
of
the terms and provisions of this Agreement shall be binding upon and inure
to
the benefit of and be enforceable by the respective legal representatives,
successors and assigns of the parties hereto, except that the duties and
responsibilities of Employee hereunder are of a personal nature and may not
be
assigned or delegated in whole or in part.
8. Governing
Law.
This
Agreement shall be governed by and interpreted in accordance with laws of the
State of Delaware, without giving effect to any conflict of laws
provisions.
9. Notices.
All
notices and other communications hereunder shall be in writing and shall be
deemed to have been given when hand delivered or mailed by registered or
certified mail to the addresses specified in the initial paragraph or when
delivered by facsimile, with proof of transmission.
10. Counterparts.
This
Agreement shall become binding when any one or more counterparts hereof,
individually or taken together, bears the authorized signatures of Employee
and
Aeolus. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original as against any party whose signature
appears thereon, but all of which together shall constitute but one and the
same
instrument.
IN
WITNESS WHEREOF, the undersigned authorized representative of each party
intending to be legally bound, have each duly executed this Agreement as of
the
date signed below.
By:
/s/
Xxxxx. Cavalier
Name:
Xxxxx X. Xxxxxxxx
Title:
Chairman
of the Board
Date:
July
14,
2006
EMPLOYEE
By: /s/
Xxxx X. XxXxxxx
Name:
Xxxx X. XxXxxxx
Date:
July
14,
2006
