IXION BIOTECHNOLOGY, INC.
DEFERRED COMPENSATION PLAN AGREEMENT
THIS AGREEMENT made this 1st day of April, 1994 by and between Ixion
Biotechnology, Inc. (the "Company") and Xxxxx X. Xxxx (the "Employee"):
WITNESSETH:
WHEREAS, the Employee occupies a position of key significance with the
Company and the Company desires to encourage the Employee to remain with the
Company, to make and to continue to make contributions to the Company's
growth;
WHEREAS, by consent dated January 3, 1994, the Company's Board of
Directors adopted a Deferred Compensation Plan for officers, key employees,
and key consultants of the Company (the "Plan"), permitting the Employee to
defer receipt of all or a portion of his compensation to be paid in the future
in accordance with the terms and conditions herein set forth.
NOW, THEREFORE, the parties agree as follows:
1. Payment of Compensation.
Beginning April 1, 1994, and thereafter for all future calendar years
until the Employee provides the Company with written notice to discontinue or
reduce the deferral of future compensation hereunder, 100% of each installment
of Employee's annual compensation (including annual or long term incentive
compensation, if any) shall be deferred and credited in accordance with
Section 2 below. (The beginning date in the preceding sentence shall be the
first business day of a future calendar year, unless the Employee executes
this Agreement within thirty days of becoming eligible for the Plan, in which
event the beginning date may be the first day of any future month.) Any
remaining portion of the Employee's compensation shall be paid currently in
accordance with the Company's normal payroll procedures. The Employee's
regular stipulated rate of pay from the Company for full-time service shall
not be affected by the deferral provided for herein and, therefore, none of
the Company's non-qualified welfare plans, if any, the benefits of which are a
function of the regular stipulated rate of pay, shall be affected by such
deferral.
2. Employee's Account: Credits and Interest.
(a) An unfunded deferred compensation account (the "Account")
will be established for the Employee. The only obligation of the Company with
respect to the Account is to make the payments provided for under this
Agreement when they become payable, and that any amount credited to such
Account will be solely for record-keeping purposes and shall not be considered
to be held in trust or in escrow or in any way vested in the Employee.
(b) The Company will credit to the Account an amount equal to the
percent of compensation specified in Section 1.
(c) (i) Until payments under this Agreement begin, the
Company will also credit additional amounts to the Account. The Board of
Directors will establish an annual interest rate which shall remain in effect
until changed by the Board at the beginning of each year. The initial rate
shall be 8%.
(ii) After payments under this Agreement begin, the
Company will also credit additional amounts to the Account. Such additional
amounts shall be equal to the amount of interest set forth in Subsection
2(c)(i) above, unless greater additional amounts are otherwise ordered by the
Board of Directors.
3. Payments from Deferred Compensation Account.
(a) The amount in the Employee's Account will be paid out as
indicated below provided, in all cases, the Company has sufficient cash to be
able prudently to make such payments.
(i) In the event of the Employee's termination of employment by
death, payment to the beneficiary will commence on the first day of the
calendar month following the 90th day after the Employee's death, provided
that the Company has been provided with the necessary documents.
(ii) In the event of the Employee's termination of employment,
other than by death, disability or retirement: [Initial one.]
on the first day of the calendar month following
the 90th day after the Employee's termination of employment; or
on the first day of the calendar month following
the month in which the Employee attained 65 years of age.
(b) Cash payment shall be in the form of monthly installments, as
nearly equal as may be practicable, but with appropriate adjustment for
changes required under Subsection (c)(ii) of Section 2, over a period of years
to be selected by Employee or in a single sum. A change in either the elected
form of payment or the number of years for installment payments may be made at
any time prior to the calendar year during which the initial benefit becomes
payable. The Employee, in the same manner as his may make beneficiary
designations, may elect that payments coming due at or after his death shall
be either in one sum or in installments. Any payment coming due during the
Employee's lifetime shall be payable to the Employee. Any payment coming due
at or after the Employee's death shall be paid when due to the beneficiary
designated by the Employee. The beneficiary designated by the Employee must
be his spouse, child or children, grandchild or grandchildren, sibling or
siblings, the Employee's executors or administrators, or a trust established
by the instrument probated as the Employee's Will. If no such designation is
in effect at the time any payment becomes due, it shall be paid to the
Employee's executors or administrators. Beneficiary designations and changes
thereof may be made during the Employee's lifetime by the Employee by written
notice filed with the Company. Such designation and any subsequent change
shall take effect as of the date the notice was signed, upon recording and
acceptance by the Company, subject to any payment made by the Company or
action taken by it before receipt of the notice.
(c) In the event of Employee's termination of employment either
by death or without cause, at the election of the Employee or the Employee's
executors or administrators, made on or before the 90th day following the date
of termination, Employee may convert all or a portion of the amounts in the
Account into common stock of the Company at a price per share not greater than
the lowest price per share (adjusted for stock splits, stock dividends, the
issuance of convertible securities, warrants or options, or other dilution),
at which shares of the Company's common stock have been issued (or agreed to
be issued) at any time in the 365 days preceding the date of termination.
Notice of the election must be in writing and must specify the amount of such
Account to be so converted. The common stock shall be issued as of the date
of the notice, upon recording by the Company.
(d) A termination shall be deemed without cause if, without
Employee's written consent, any of the following events occur:
(i) The Employee is assigned any duties inconsistent with his
status in the position held immediately prior to such assignment, or has the
nature or status of his responsibilities altered in a substantially adverse
way;
(ii) The Company reduces the Employee's annual base salary
in effect as of the date of this Agreement, or as the same may be increased
from time to time;
(iii) The Company's offices where the Employee is working
are moved to a location more than 50 miles from the location of such offices;
(iv) The Company fails to pay any portion of current
compensation, or fails to pay any portion of an installment of deferred
compensation under any deferred compensation program of the Company within 30
days of the date such compensation is due;
(v) The Company fails to continue in effect any compensation
plan in which the Employee is participating which is material to such
Employee's total compensation;
(vi) The Company fails to continue to provide the Employee
with benefits substantially similar to those, if any, previously enjoyed under
any of the Company's pension, saving, health, or other welfare or benefit
plans;
(vii) The Company takes any other action which directly or
indirectly materially reduces any of the benefits referred to above, or
reduces any fringe benefits enjoyed by the Employee (including, without
limitation, days of paid vacation); or
(ix) The Company materially breaches any employment agreement
with the Employee.
4. Benefits May Not be Assigned or Attached.
No benefit hereunder may be assigned, anticipated or hypothecated and,
to the extent permitted by law, no sum payable under this Agreement shall be
subject to legal process or attachment for payment of any claim payee
hereunder.
5. No Obligations to Continue Employment.
Subject to the provisions of Section 3(d) above, nothing contained in
this Agreement shall in any way otherwise obligate the Company to retain the
Employee in its employment for any period of time, nor in any way otherwise
affect the Company's right to change at any time the Employee's compensation,
the method or conditions for payment thereof, or any other aspect of the
Employee's employment.
6. Duration of Agreement.
This Agreement shall remain effective and continue in force until such
time as it may be amended or terminated by the parties hereto.
7. Election of Payment .
If the Employee has not elected to convert his Account into common stock
of the Company, such Account shall be paid as follows: [Initial one.]
(a) Single sum.
(b) Monthly Installments over (5 or 10 years)
IN WITNESS WHEREOF the parties hereto have duly executed this Agreement
as of the day and year first above written.
Ixion Biotechnology, Inc. Xxxxx X. Xxxx
By:
Employee
Designation of Benficiary
