EMPLOYMENT AGREEMENT
EXHIBIT
10.29
THIS
EMPLOYMENT AGREEMENT (“Agreement”) is made
and effective as of this 4th
day of
January, 2007, between ACCESS Pharmaceuticals, Inc., a Delaware Corporation
with
a place of business at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx
00000-0000 (“Company”), and
Xxxxxxx X. Xxxxx, an individual who resides at 00 Xxxx Xxxx Xxxxx, Xxxxxx,
Xxx
Xxxxxx 00000 (“Executive”).
(i)
that
the Option shall be comprised of (A) an incentive stock option for the number
of
shares the Company’s common stock available for issuance under the Company’s
2005 Equity Incentive Plan as of the date hereof, and (B) a non-statutory
stock
option for the balance of the shares issuable upon exercise of the Option;
and
(ii) for
acceleration of the Option upon or following the occurrence of a Change of
Control (as defined below) or upon a discharge other than for Cause (as provided
in Section 4 below).
(g) Place
of Performance. In
connection with his employment by the Company, unless otherwise agreed by
the
Executive, the Executive shall be based at an office of the Company in New
York
City, except for travel reasonably required for Company business (the "Place
of
Performance").
4.
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DISCHARGE
FOR CAUSE
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Payment
when due of any unpaid base salary, expense reimbursements, and
vacation
days accrued prior to termination of employment. Executive shall
forfeit
all vested and unvested stock options issued or issuable under
Section
3(c) of this Agreement, pursuant to the terms of the Option Award
Agreement.
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Same
as for “Discharge For Cause” EXCEPT that, in exchange for Executive’s
execution of a release in accordance with this Section 4, Executive
shall
be entitled to the following special benefits: (A) a lump sum in
cash,
payable within ten (10) business days after the effective date
of such
event, equal to two times the sum of Executive’s then-current base salary,
plus his then average annual bonus for the preceding two years
(or, if
applicable, using the annual bonus target for such occurrences
prior to
receipt of the first annual bonus), pursuant to Section 3 of this
Agreement, and (B) all of Executive’s outstanding stock options issued or
issuable under Section 3(c) of this Agreement, shall immediately
vest and
become exercisable and Executive shall have the full term of the
option to
exercise any of his stock options, pursuant to the terms of the
Option
Award Agreement.
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RESIGNATION
WITHOUT GOOD REASON
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Same
as for “Discharge for Cause.”
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RESIGNATION
WITH GOOD REASON
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Same
as for “Discharge Other Than For Cause.”
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DISABILITY
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Same
as for “Discharge For Cause” EXCEPT that salary continuation will be
reduced by any amounts received by Executive under any Company-sponsored
disability benefits plan, and in exchange for Executive’s execution of a
release in accordance with this Section 4, all of Executive’s outstanding
vested stock options shall be exercisable pursuant to the terms
of the
Option Award Agreement.
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DEATH
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Same
as for “Discharge for Cause” EXCEPT that, in exchange for the execution of
a release by Executive’s estate in accordance with this Section 4,
continuation of Executive’s base salary for six (6) months after the date
of termination and Executive’s outstanding vested stock options shall be
exercisable pursuant to the terms of the Option Award
Agreement.
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(ii)
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Pay
Cut. Executive’s
annual base salary is reduced.
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However,
an event that is or would constitute Good Reason shall cease to be Good Reason
if: (1) Executive does not terminate employment within ten (10) days after
the
event occurs with knowledge of Executive (except for a Change of Control);
or
(2) the Company reverses the action or cures the default that constitutes
Good
Reason within 30 days after Executive notifies it
in
writing that Good Reason exists before Executive terminates employment If
Executive has Good Reason to terminate employment, he may do so even if he
is on
a leave of absence due to physical or mental illness or any other reason,
but he
must do so before his actual or constructive Disability termination as defined
herein.
(together,
the “Restricted
Period”): (1) as to any client or business partner of the Company with
whom Executive had dealings or about whom Executive acquired confidential
information during his employment, Executive will not solicit, attempt to
solicit, assist others to solicit, or accept any unsolicited request from
the
client or business partner to do business with any person or entity other
than
the Company or its affiliates; and (2) Executive will not solicit, attempt
to
solicit, assist others to solicit, hire, or assist others to hire for employment
any person who is, or within the preceding twelve (12) months was, an officer,
manager, employee, or consultant of the Company. Executive agrees that the
restrictions set forth in this paragraph do not and will not prohibit his
from
engaging in his livelihood and do not foreclose his working with clients
or
business partners not identified in this paragraph.
Executive
agrees that, if she violates any of the provisions of this section, the Company
or any Group member shall be entitled to, in addition to other remedies
available to it, an injunction to be issued by any court of competent
jurisdiction restraining Executive from committing or continuing any such
violation, without the need to prove the inadequacy of money damages or post
any
bond or for any other undertaking.
(b) The
Arbitration. The
arbitration shall take place under the auspices of the American Arbitration
Association (“AAA”) in its
office
nearest to the location where Executive last worked for the Company and
conducted in accordance with the AAA’s National Rules for the Resolution of
Employment Disputes then in effect before an experienced employment law
arbitrator licensed to practice law in that jurisdiction who has been selected
in accordance with such rules. The arbitrator may not modify or change this
Agreement in any way except as expressly set forth herein. The arbitration
shall
be governed by the substantive law of the State of New York (excluding where
it
mandates the use of another jurisdiction’s laws).
Executive.
A waiver of any conditions or provisions of this Agreement in a given instance
shall not be deemed a waiver of such conditions or provisions at any other
time
in the future.
9. Choice
of Law. The validity,
interpretation, construction, and performance of this Agreement shall be
governed by the laws of the State of New York (excluding any that mandate
the
use of another jurisdiction’s laws).
14. Entire
Agreement. All oral or
written agreements or representations, express or implied, with respect to
the
subject matter of this Agreement are set forth in this Agreement. All prior
written employment agreements between Executive and the Company are hereby
declared null and void, and of no further effect.
Date:
January 4, 2007
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ACCESS
PHARMACEUTICALS, INC.
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By:
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/s/
Xxxxx X.
Xxxx
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Name: Xxxxx
X. Xxxx
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Title:
Director, Chairman of Compensation
Committee
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Date:
January 4, 2007
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/s/
Xxxxxxx X.
Xxxxx
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Xxxxxxx
X. Xxxxx
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