AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit
3.1
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This
Amended and Restated Employment Agreement (this “Agreement”) is made and
effective as of the 15th
day of
June, 2006, by and between Xxxxx X. XxXxxxxxxx (hereinafter referred to as
“Employee”) and Opexa Therapeutics, Inc. (hereinafter referred to as “Opexa”),
amends and restates that certain Employment Agreement, effective April 23,
2004,
by and between Employee and Opexa (“Original Agreement”).
W
I T N E
S S E T H:
WHEREAS,
Employee
is employed by Opexa pursuant to the Original Agreement;
WHEREAS,
Opexa
desires to retain key executives and promote their dedication;
WHEREAS,
Opexa’s
success requires the protection of its intellectual property, proprietary
information and goodwill and Opexa is willing to employ Employee, subject to
the
terms and conditions below;
WHEREAS,
the
Employee and Opexa jointly wish to make certain changes to the Original
Agreement to more accurately reflect the understanding between
them.
NOW,
THEREFORE,
for and
in consideration of the employment by Opexa, the compensation and other
remuneration paid and to be paid by Opexa and received by the Employee for
such
employment, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by Employee, it is agreed by and
between the parties hereto as follows:
| 1. |
Employment
|
Opexa
agrees to employ the Employee, and Employee agrees that Employee will devote
Employee’s full productive time, skill, and best efforts during Employee’s
employment to such duties as may be reasonably assigned to Employee. Employee
will faithfully and diligently endeavor to further the best interests of Opexa
during Employee’s employment. The foregoing, however, shall not preclude the
Employee from (i) engaging in appropriate civic, charitable, professional or
trade association activities or (ii) subject to Board of Director written
approval, serving on one or more other boards of directors of public or private
companies, as long as such activities and services do not conflict with the
responsibilities to Opexa.
| 2. |
Duties
and Title
|
Employee
shall continue to have the title of and shall act as the Chief Executive Officer
and a Director of Opexa. Employee shall have the following responsibilities
and
duties as Chief Executive Officer: Employee shall report to Opexa’s Board of
Directors, shall have general supervisions over the operations of Opexa and
will
have such other duties and responsibilities consistent with his position as
Chief Executive Officer, as may reasonably be assigned to Employee by Opexa’s
Board of Directors from time to time.
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| 3. |
Term
of Employment
|
The
term
of employment of Employee is through June 15, 2008, subject to termination
pursuant to Section 6. The term of employment shall be extended for additional
successive periods of 1 year unless the Board of Directors provides the Employee
ninety (90) days written notice prior to such termination date.
| 4. |
Compensation
|
As
compensation, Opexa shall pay Employee a salary of a minimum of $275,000 per
year, subject to upward adjustment, paid consistent with the then payroll
practices of Opexa. In addition, at the discretion of the Board’s compensation
committee or the entire Board of Directors, Employee shall be eligible to be
paid an annual bonus of cash and/or the grant of Opexa’s securities pursuant to
Opexa then existing stock compensation plan.
| 5. |
Benefits
|
Opexa
will
provide Employee with the benefits and insurance coverage as generally provided
by Opexa to its management employees, but only if and when such benefits and/or
coverage are provided. If provided, such benefits and insurance coverages may
be
changed by Opexa from time to time.
| 6. |
Termination
|
The
Employee’s employment hereunder may be terminated prior to the term provided for
in Section 3 only under the following circumstances:
6.1 Death.
The
Employee’s employment shall terminate automatically on the date of his
death.
6.2 Disability.
If a
Disability (as defined below) occurs and is continuing, the Employee's
employment shall terminate 180 days after Opexa gives the Employee written
notice that it intends to terminate his Employment on account of that
Disability, or on such later date as Opexa specifies in such notice. If the
Employee resumes the performance of substantially all of his duties under this
Agreement before the termination becomes effective, the notice of intent to
terminate shall be deemed to have been revoked. Disability of Employee shall
not
prevent Opexa from making necessary changes during the period of Employee’s
Disability to conduct its affairs. “Disability” shall mean that the Employee,
with reasonable accommodation, has been unable to perform his essential duties
under this Agreement for a period of at least six consecutive months as a result
of his incapacity due to injury or physical or mental illness, any disability
as
defined in a disability insurance policy which provides coverage for the
Employee, or any disability as defined by the Americans with Disabilities Act
of
1990, Public Law 101_336, 42 U.S.C.A. § 12101 et
seq.
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6.3 Employee’s
Voluntary Termination.
The
Employee may terminate his employment at any time upon 90 days’ prior written
notice to Opexa.
6.4 Termination
by Opexa Without Cause.
Upon
written notice by Opexa, a majority of the Board of Directors of Opexa may
terminate Employee’s employment without Cause (as defined below). Upon
termination without Cause the Employee shall be entitled to the following
severance:
(i) twelve
months base salary at the rate in effect (as provided for by Section 4 of this
Agreement) at the time of such termination, to be paid monthly;
| (ii) |
any
annual bonus earned but not yet paid as of the date of
termination;
|
| (iii) |
any
accrued vacation pay;
|
| (iv) |
reimbursement
for expenses incurred but not yet paid prior to such termination of
employment;
|
| (v) |
any
other compensation and benefits, including deferred compensation, as
may
be provided in accordance with the terms and provisions of any applicable
plans and programs of Opexa; and
|
| (vi) |
any
and all stock options granted to Employee prior to termination shall
provide that (a) all vesting schedules shall accelerate for a 12
month
period and (b) Employee shall have 90 days from termination to exercise
any such stock options or other derivative securities granted pursuant
to
any Opexa’s then existing stock compensation
plan.
|
6.5 Termination
by Opexa With Cause.
Upon
written notice by Opexa, a majority of the Board of Directors of Opexa may
terminate Employee’s employment with Cause. Upon termination with Cause,
Employee shall not be entitled to any severance described in Section
6.4(i)-(vi). Any written notice of termination for Cause shall specify the
particular act or acts, or failure to act, which is or are the basis for the
decision to so terminate the Employee's employment for Cause. “Cause” as used
herein shall be limited to (i) the conviction of the Employee for a felony;
or
(ii) a finding of fact in a civil judgment, binding arbitration award or binding
mediation award that the Employee breached the then existing Opexa’s Code of
Ethics. If such conviction or finding of fact is overturned on appeal, the
Employee shall be entitled to the payments and the economic equivalent of the
benefits that the Employee would have received as a result of a termination
of
the Employee’s employment by Opexa without Cause and shall be reimbursed all
legal fees and expenses incurred by Employee in his defense of his actions
that
constituted the lawsuit, arbitration, mediation and/or appeal.
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6.6 Defacto
Termination.
Opexa
shall be deemed to have terminated Employee without Cause upon: (i) Opexa
requiring Employee to move his principal place of residence from the Woodlands,
Texas area or to perform regular duties that could reasonably be expected to
require either such move against his wish or to spend amounts of time each
week
outside of the Houston, Texas area which are unreasonable in relation to the
duties and responsibilities of the Employee hereunder; (ii) any reduction in
Employee’s duties or titles as set forth in Section 2 above; or (iii) any
reduction in Employee’s salary as set forth in Section 4.
6.7 Change
of Control.
The
effectiveness of a Change of Control (as defined below) shall be deemed a
termination without cause. Upon the effectiveness of a Change of Control, Opexa
shall pay the Employee:
| (i) |
the
greater of: (a) the compensation as set forth in Section 4 for the
remaining term of this Agreement as set forth in Section 3 and the
severance awarded pursuant to Section 6.4 (ii)-(v) above; or (b) the
severance awarded pursuant to Section 6.4(i)-(v) above; and
|
| (ii) |
any
and all stock options granted to Employee prior to the Change of Control
shall vest immediately upon the effectiveness of the Change of
Control.
|
“Change
of
Control” as used herein shall mean the occurrence of the following
events:
|
(i)
|
A
sale, transfer, or other disposition by Opexa through a single transaction
or a series of transactions occurring within a 90-day period of securities
of Opexa representing Beneficial Ownership (as defined below) of
fifty
(50%) percent or more of the combined voting power of Opexa then
outstanding securities to any “Unrelated Person” or “Unrelated Persons”
acting in concert with one another. For purposes of this definition,
the
term “Person” shall mean and include any individual, partnership, joint
venture, association, trust corporation, or other entity [including
a
“group” as referred to in Section 13(d)(3) of the Securities Exchange Act
of 1934, as amended (“1934 Act”)]. For purposes of this definition, the
term “Unrelated Person” shall mean and include any Person other than the
Employee, Opexa, a wholly-owned subsidiary of Opexa, an existing
shareholder, or an employee benefit plan of Opexa; provided however,
a
sale of Opexa’s securities in a capital raising transaction shall not be a
Change of Control.
|
|
(ii)
|
A
sale, transfer, or other disposition through a single transaction
or a
series of transactions occurring within a 90-day period of all or
substantially all of the assets of Opexa to an Unrelated Person or
Unrelated Persons acting in concert with one
another.
|
|
(iii)
|
A
change in the ownership of Opexa through a single transaction or
a series
of transactions occurring within a 90-day period such that any Unrelated
Person or Unrelated Persons acting in concert with one another become
the
“Beneficial Owner,” directly or indirectly, of securities of Opexa
representing at least fifty-one (51%) percent of the combined voting
power
of Opexa then outstanding securities. For purposes of this Agreement,
the
term “Beneficial Owner” shall have the same meaning as given to that term
in Rule 13d-3 promulgated under the 1934 Act, provided that any pledgee
of
voting securities is not deemed to be the Beneficial Owner of the
securities prior to its acquisition of voting rights with respect
to the
securities.
|
|
(iv)
|
Any
consolidation or merger of Opexa with or into an Unrelated Person,
unless
(i) immediately after the consolidation or merger the holders of
the
common stock of Opexa immediately prior to the consolidation or merger
are
the beneficial owners of securities of the surviving corporation
representing at least fifty-one (51%) percent of the combined voting
power
of the surviving corporation’s then outstanding securities or (ii)
Employee continues to serve as Chief Executive Officer after the
consolidation or merger.
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| 7. |
Confidential
and Proprietary Information;
Documents
|
7.1 Opexa
shall provide Employee with information deemed secret and confidential by Opexa.
Such secret or confidential information or know-how of Opexa (referred to
collectively as “Confidential Information”) shall include, without limitation,
the following: the status and plans for research and development; materials,
cells, tissues, and other biological samples and specimens; cell banking
methods, apparatus, and services; pending and planned patent applications (until
published by the Patent Office); invention disclosures; research and technical
data and information; methods of creating, preparing, and using stem cells
and
other biological materials; license, sublicense, and other agreements relating
to intellectual property rights; Opexa’s plans; customer or contact information;
contributor information; strategies, costs, prices, uses, applications of
products and services; results of and data from investigations or experiments;
all apparatus, products, processes, compositions, samples, formulas, computer
programs, pricing policy, financial information, and methods of doing business;
policy and/or procedure manuals, training and recruiting procedures; accounting
procedures; the status and content of Opexa’s contracts with its contributors,
clients, and customers; Opexa’s business philosophy, and servicing methods and
techniques; all at any time used, developed, or investigated by Opexa, before
or
during the Employee’s tenure of employment, which are not generally available to
the public or which are maintained as confidential by Opexa.
7.2 Employee
recognizes and acknowledges that Employee will have access to certain
information of Opexa that is confidential and proprietary and constitutes
valuable and unique property of Opexa. Employee agrees that Employee will not
at
any time, either during or subsequent to Employee’s employment, disclose to
others, use, copy or permit to be copied, except in pursuance of Employee’s
duties on behalf of Opexa, its successors, assigns or nominees, any Confidential
Information or know-how of Opexa (whether or not developed by the Employee)
without Opexa’s prior written consent. Employee further agrees to maintain in
confidence any confidential information of third parties received as a result
of
Employee’s employment with Opexa.
7.3 Employee
further agrees to deliver to Opexa at the termination of Employee’s employment
all biological materials correspondence, memoranda, notes, records, drawings,
sketches, plans, customer, client and/or contributor lists, product
compositions, or other documents and all copies thereof (all of which are
hereafter referred to as the “Documents”), made, composed or received by
Employee, solely or jointly with others, and which are in Employee’s possession,
custody, or control at such date and which are related in any manner to the
past, present, or anticipated business of Opexa. In this regard, Employee hereby
grants and conveys to Opexa all right, title and interest in and to, including
without limitation, the right to possess, print, copy, and sell or otherwise
dispose of, any biological materials, reports, records, papers summaries,
photographs, drawings or other documents, and writings, copies, abstracts or
summaries thereof, or any other works of authorship, which may be prepared
by
Employee or under Employee’s direction or which may come into Employee’s
possession in any way during the term of Employee’s employment with Opexa which
relate in any manner to the past, present or anticipated business of
Opexa.
7.4 Employee
further agrees that Employee will not, during Employee’s employment, receive
from persons not employed by Opexa, any confidential information not belonging
to Opexa, unless a valid agreement is signed by both an officer of Opexa and
by
the disclosing party that states that Opexa will not be in a confidential
relationship with the disclosing party. Employee further agrees that Employee
will not use or disclose to other employees of Opexa, during Employee’s
employment with Opexa, confidential information belonging to Employee’s former
employers, or any other third parties unless written permission has been given
by such persons to Opexa to use and/or disclose such information.
7.5 In
the
event of a breach or threatened breach of any of the provisions of Section
7,
Opexa shall be entitled to an injunction ordering the return of such Documents
and any and all copies thereof and restraining Employee from using or
disclosing, for Employee’s benefit or the benefit of others, in whole or in
part, any Confidential Information, including but not limited to the
Confidential Information which such Documents contain, constitute, or embody.
Employee further agrees that any breach or threatened breach of any of the
provisions of Section 7 would cause irreparable injury to Opexa for which it
would have no adequate remedy at law. Nothing herein shall be construed as
prohibiting Opexa from pursuing any other remedies available to it for any
such
breach or threatened breach, including the recovery of damages.
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| 8. |
Noncompetition/No-Hire
Agreement
|
8.1 Employee
agrees that, from the date hereof until a period of one year following the
date
of the termination of Employee’s employment (the “Noncompetition Period”),
Employee will not directly or indirectly, either as an employee, employer,
consultant, agent, principal, partner, corporate officer, director, or in any
other individual or representative capacity, engage or participate in any
“Competitive Business” anywhere in the United States of America (the
“Noncompetition Territory”). As used herein, a “Competitive Business” is defined
as any business relating developing autologous cellular therapies to treat
several major illnesses, including multiple sclerosis (MS), rheumatoid
arthritis, diabetes, and cardiovascular disease, which Opexa is currently
involved or will be involved during the term of this Agreement.
8.2 Employee
further agrees that from the date hereof until a period of two years following
the date of the termination of Employee’s employment (the “Nonsolicitation
Period”) and within the Noncompetition Territory Employee will not, directly or
indirectly, either as an employee, employer, consultant, agent, principal,
partner, corporate officer, director, or in any other individual or
representative capacity, call on, solicit, recruit, or attempt to call on,
solicit, or recruit, or attempt to hire any of the employees of Opexa,
regardless of whether for the benefit of the Employee or for any other person,
firm, or corporation.
8.3 Employee
shall not during the Nonsolicitation Period and within the Noncompetition
Territory, either directly or indirectly (i) make known to any Competitive
Business the names and addresses of any of Opexa’s customers or contacts or any
other information pertaining to such persons or businesses or (ii) call on,
solicit, or take away, or attempt to call on, solicit or take away any of the
customers of Opexa with whom Employee became acquainted during Employee’s
association with Opexa, regardless of whether for the benefit of the Employee
or
for any other person, firm or corporation.
8.4 Employee
agrees that the restraints created by the covenants in Section 8 are no greater
than necessary to protect Opexa’s legitimate interests. Furthermore, Employee
agrees that such covenants of Section 8 do not hinder, or otherwise cause
hardship to Employee in finding and performing employment elsewhere upon
termination of this Agreement. Similarly, Employee agrees that Opexa’s need for
the protection afforded by the covenants of Section 8 is not outweighed by
either the hardship to Employee or any injury likely to the public.
8.5 Employee
agrees that this Section 8 is ancillary to this Agreement, and independent
of
any other agreement related to Employee’s employment with Opexa, and Employee
acknowledges that the consideration given by Opexa for this Agreement includes
Opexa’s agreement to provide to the Employee access to the Confidential
Information, as well as employment. Further, the existence of any claim or
cause
of action of Employee against Opexa or any officer, director, or employee of
Opexa, whether predicated on this Agreement or otherwise, shall not constitute
a
defense to the enforcement by Opexa of Employee’s covenants contained in this
Agreement. In addition, this Agreement shall continue to be binding upon
Employee in accordance with its terms, notwithstanding the termination of
Employee’s employment.
8.6 Employee
agrees that Employee’s breach or violation, or threat thereof, of this covenant
not to compete shall entitle Opexa, as a matter of right, to an injunction
without the necessity of posting bond, issued by any court of competent
jurisdiction, restraining any further or continued breach or violation of this
covenant. Such right to an injunction shall be cumulative and in addition to,
and not in lieu of, any other remedies to which Opexa may show itself justly
entitled. Further, during any period in which Employee is in breach of this
covenant not to compete, the time period of this covenant shall be extended
for
an amount of time that Employee is in breach.
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| 9. |
Inventions
and Other Intellectual Property
|
9.1 Employee
agrees to hold in complete trust for the benefit of Opexa, and to disclose
promptly and fully to Opexa in writing, and hereby assigns, and binds Employee’s
heirs, executors, administrators, and all legal representatives to assign,
to
Opexa any and all inventions, discoveries, ideas, concepts, improvements,
copyrightable works, biological materials, and other developments (all of the
above are collectively referred to as the “Developments”) conceived, made,
discovered or developed by him, solely or jointly with others, during Employee’s
employment by Opexa, whether during or outside of usual working hours and
whether on Opexa’s premises or not, which relate in any manner to the past,
present or anticipated business of Opexa. Any and all such Developments shall
be
the sole and exclusive property of Opexa, whether patentable, copyrightable,
or
neither, and Employee agrees that Employee will assist and fully cooperate
in
every way, at Opexa’s expense, in securing, maintaining, and enforcing, for the
benefit of Opexa or its designee, patents, copyrights or other types of
proprietary or intellectual property protection for such Developments in any
and
all countries. Employee acknowledges and agrees that any and all such
Developments conceived, created, or authored by him within the scope of
Employee’s employment is a “work made for hire,” as defined by the federal
copyright laws, and therefore all copyrights in and to such works are and will
be owned by Opexa. To the extent that Employee authors any copyrightable work
in
any medium during the Term of this Agreement which relates or pertains in any
way to Opexa or any of the operations or activities of either and which was
not
prepared within the scope of Employee’s employment, Employee hereby assigns all
right, title, and interest, including but not limited to all rights of
copyright, in and to such works to Opexa. Within six months following the
termination of Employee’s employment, and without limiting the generality of the
foregoing, any Development of the Employee relating to any Opexa subject matter
on which Employee worked or was informed during Employee’s employment by Opexa
shall be conclusively presumed to have been conceived and made prior to the
termination of Employee’s employment (unless the Employee clearly proves that
such Development was conceived and made following the termination of Employee’s
employment), and shall accordingly belong, and be assigned, to Opexa and shall
be subject to this Agreement.
9.2 Without
limiting the foregoing, Employee agrees at the request of Opexa (but without
additional compensation from Opexa during Employee’s employment by Opexa) to
execute any and all papers and perform all lawful acts which Opexa deems
necessary for the preparation, filing, prosecution, and maintenance of
applications for United States and foreign letters patent, or for United States
and foreign copyrights, on the Developments, and to execute such instruments
as
are necessary or convenient to assign to Opexa, its successors, assigns or
nominees, all of the Employee’s right, title, and interest in the Developments
and the like, so as to establish, maintain or perfect, in Opexa, its successors,
assigns or nominees, the entire right, title, and interest to the Developments,
and also to execute any instruments necessary or which Opexa may deem desirable
it connection with any continuation, renewal or reissue thereof, or in the
conduct of any proceedings or litigation in regard thereto.
9.3 All
expenses incurred by the Employee by reason of the performance of any of the
obligations set forth in this Section 9 on Inventions shall be borne by Opexa.
Should the Employee’s assistance be requested by Opexa after termination of
employment, Opexa would compensate the Employee at a reasonable
rate.
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| 10. |
Conflicts
of Interest
|
10.1 In
keeping
with Employee’s fiduciary duties to Opexa, Employee agrees that Employee shall
not, directly or indirectly, become involved in any conflict of interest with
reference to any transaction or opportunity including Opexa (“Conflict”), or
upon discovery thereof, allow such a Conflict to continue. Moreover, Employee
agrees that Employee shall promptly disclose to the Board of Opexa any facts
which might involve any reasonable possibility of a Conflict. Employee shall
maintain the highest standards of conduct, and shall not do anything likely
to
injure the reputation or goodwill of Opexa, or embarrass or otherwise generate
adverse publicity for or bring unwanted attention to Opexa.
10.2 It
is
agreed that any direct or indirect interest in, connection with, or benefit
from
any outside activities, particularly commercial activities, which interest
might
in any way adversely affect Opexa or any of its subsidiaries or affiliates,
involves a possible Conflict. Circumstances in which a Conflict on the part
of
Employee would or might arise, and which should be reported immediately by
Employee to an officer of Opexa, include, without limitation, the following:
(a)
ownership of a material interest in, acting in any capacity for, or accepting
directly or indirectly any payments, services or loans from a supplier,
contractor, subcontractor, customer or other entity with which Opexa does
business; (b) misuse of information or facilities to which Employee has access
in a manner which will be detrimental to Opexa’s interest; (c) disclosure or
other misuse of information of any kind obtained through the Employee’s
connection with Opexa; (d) acquiring or trading in, directly or indirectly,
other properties or interests connected with the design, manufacture or
marketing of products designed, manufactured or marketed by Opexa; (e) the
appropriation to the Employee or the diversion to others, directly or
indirectly, of any opportunity in which it is known or could reasonably be
anticipated that Opexa would be interested; and (f) the ownership, directly
or
indirectly, of a material interest in an enterprise in competition with Opexa
or
its dealers and distributors or acting as a director, officer, partner,
consultant, employee or agent of any enterprise which is in competition with
Opexa or its dealers or distributors.
| 11. |
Activities
Associated With Maintenance of Professional Status and Community
Activities
|
Opexa
will
reimburse Employee for the costs of activities associated with the maintenance
of the Employee’s professional status, including the payment of licensing fees
and required continuing education, expenses for professional/network meetings,
as well as community activities.
| 12. |
Prior
Discoveries
|
Employee
does not have any unpatented inventions and discoveries made or conceived by
Employee prior to Employee’s employment with Opexa and which are to be excluded
from this Agreement.
| 13. |
Publicity
|
13.1 Employee
agrees that Opexa may use, and hereby grants Opexa the nonexclusive and
worldwide right to use, Employee’s name, picture, likeness, photograph,
signature, or any other attribute of Employee’s persona (all of such attributes
are hereafter collectively referred to as “Persona”) in any media for any
advertising, publicity or other purpose at any time, either during or subsequent
to Employee’s employment by Opexa. Employee agrees that such use of Employee’s
Persona will not result in any invasion or violation of any privacy or property
rights Employee may have; and Employee agrees that Employee will receive no
additional compensation for the use of Employee’s Persona. Employee further
agrees that any negatives, prints or other material for printing or reproduction
purposes prepared in connection with the use of Employee’s Persona by Opexa
shall be and are the sole property of Opexa.
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13.2 Employee
further agrees that at no time shall Employee write, author, publish,
distribute, or cause to be published or distributed any pictorial, graphic,
or
literary works, such as but without limitation, books, articles, stories, or
pamphlets, in any medium
of
expression, tangible or intangible, that relate, describe, or pertain in any
way
to Opexa or to the operations, activities, or employees of Opexa without first
obtaining the prior written consent of the Board of Directors of Opexa to do
so
and also the prior written approval of the contents of any such work by the
Board of Directors of Opexa.
| 14. |
Indemnification
|
Opexa
shall, to the fullest extent permitted by the Texas Business Corporation Act,
as
amended, indemnify Employee if he is or was involved in any manner (including,
but not limited to, as a party or a witness) in any threatened, pending, or
completed investigation, claim, action, suit, or proceeding, whether civil,
criminal, administrative, or investigative (including, but not limited to,
any
action, suit, or proceeding brought by or in the right of the corporation to
procure a judgment in its favor) (a “Proceeding”) by reason of the fact that the
Employee is or was a director, officer, or employee of Opexa, against all
liabilities and expenses actually and reasonably incurred by Employee in
connection with such proceeding. Such indemnification shall include the right
to
receive payment in advance of any expenses incurred by Employee in connection
with any proceeding, consistent with the provisions of the Texas Business
Corporation Act, as amended. Notwithstanding the above, Employee shall not
be
indemnified in respect of:
(i)
a
proceeding in which Employee is found liable on the basis that personal benefit
was improperly received by him, whether or not the benefit resulted from an
action taken in the person’s official capacity;
(ii) a
proceeding in which Employee is found liable to Opexa; or
(iii) a
finding
of fact in a civil judgment, binding arbitration award or binding mediation
award that the Employee breached the then existing Opexa’s Code of
Ethics.
| 15. |
Remedies
|
Employee
and Opexa agree that, because damages at law for any breach or nonperformance
of
this Agreement by Employee, while recoverable, are and will be inadequate,
this
Agreement may be enforced in equity by specific performance, injunction,
accounting or otherwise.
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| 16. |
Miscellaneous
|
16.1 This
Agreement is made and entered into as of the date hereof and the rights and
obligations of the parties hereto shall be binding upon the heirs and legal
representatives of the Employee and the successors and assigns of Opexa. This
Agreement may be assigned by Opexa but is personal to the Employee and no
rights, duties, and obligations of Employee hereunder may be
assigned.
16.2 No
waiver
or non-action with respect to any breach by the other party of any provision
of
this Agreement, nor the waiver or non-action with respect to any breach of
the
provisions of similar agreements with other employees shall be construed to
be a
waiver of any succeeding breach of such provision, or as a waiver of the
provision itself.
16.3 Should
any
portions hereof be held to be invalid or wholly or partially unenforceable,
such
holding shall not invalidate or void the remainder of this Agreement. The
portions held to be invalid or unenforceable shall be revised and reduced in
scope so as to be valid and enforceable, or, if such is not possible, then
such
portions shall be deemed to have been wholly excluded with the same force and
effect as if it had never been included herein.
16.4 Employee’s
obligations under this Agreement to Opexa shall survive the termination, for
whatever reason, of Employee’s employment by Opexa.
16.5 This
Agreement supersedes, replaces and merges any and all prior and contemporaneous
understandings, representations, agreements and discussions relating to the
same
or similar subject matter as that of this Agreement between Employee and Opexa
and constitutes the sole and entire agreement between the Employee and Opexa
with respect to the subject matter of this Agreement.
16.6 The
laws
of the State of Texas, excluding any conflicts of law rule or principle that
might otherwise refer to the substantive law of another jurisdiction, will
govern the interpretation, validity and effect of this Agreement without regard
to the place of execution or the place for performance thereof, and Opexa and
Employee agree that the appropriate courts in Xxxxxxxxxx County, Texas, shall
have personal jurisdiction and venue over Opexa and Employee to hear all
disputes arising under this Agreement.
16.7 All
notices and other communications required or permitted hereunder or necessary
or
convenient in connection herewith shall be in writing and shall be deemed to
have been given when mailed by registered mail or certified mail, return receipt
requested, as follows:
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If
to
Opexa, to:
0000
X.
Xxxxxxxx Xxxxx Xxxxx
Xxx
Xxxxxxxxx, XX 00000
Attn:
Xxxxx Xxxxxx
Attn:
Xxxxx Xxxxxxxx
If
to
Employee, to:
Xx.
Xxxxx
X. XxXxxxxxxx
00
Xxxxx
Xxxxx Xxxxxx
Xxx
Xxxxxxxxx, XX 00000
or
to such
other addresses as either party may designate by notice to the other party
hereto in the manner specified in this section 16.
16.8 This
Agreement may not be changed or terminated orally, and no change, termination
or
waiver of this Agreement or of any of the provisions herein contained shall
be
binding unless made in writing and signed by both parties, and in the case
of
Opexa, by an authorized officer of Opexa. Any change or changes, from time
to
time, in Employee’s salary and/or duties shall not be, nor be deemed to be, a
change, termination or waiver of this Agreement or of any of the provisions
herein contained.
|
EMPLOYEE:
|
|
|
By:
/s/
Xxxxx Hollfeld
|
By:
/s/
Xxxxx X. XxXxxxxxxx
|
|
Name:
Xxxxx Xxxxxxxx
|
Name:
Xxxxx X. XxXxxxxxxx
|
|
Title:Chief
Financial Officer
|
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