EMPLOYMENT AGREEMENT
Exhibit
10.1
EXECUTION
VERSION
THIS
AGREEMENT (the “Agreement”), made in New York, New York this 31st day of January
2007 and effective as of March 1, 2007, between SIGA Technologies, Inc., a
Delaware corporation (the “Company”), and Xx.
Xxxx
X. Xxxx, M.D. (“Executive”).
WHEREAS,
the Company desires to employ Executive as its Chief
Executive Officer, and Executive desires to accept such employment on the terms
and conditions hereinafter set forth;
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants and agreements hereinafter
set forth, the Company and Executive agree as follows:
1. Term.
Unless
earlier terminated in accordance with Section 4 hereof, the term of this
Agreement shall be the one-year period commencing March 1, 2007 and ending
on
February 29, 2008 (the “Term” and such year, a “Term Year”). In addition, unless
either party hereto provides notice of its desire not to renew this Agreement
thirty (30) days prior to the expiration of the Term, this Agreement shall
automatically renew for additional one (1) year periods commencing upon the
expiration of the initial Term (or any such subsequent Term), with each such
additional year thereafter being made part of the Term and each such additional
year, thereafter a Term Year.
2. Employment.
(a) Employment
by the Company.
Executive agrees to be employed by the Company during the Term upon the terms
and subject to the conditions set forth in this Agreement. Executive shall
serve
as the Chief Executive Officer of the Company and shall report to the Board
of
Directors of the Company.
(b) Performance
of Duties.
Throughout his employment with the Company, Executive shall faithfully and
diligently perform Executive’s duties in conformity with the directions of the
Company and serve the Company to the best of Executive’s ability. Except as
permitted pursuant to Section 2(c) below or as otherwise consented to by the
Board of Directors of the Company, Executive shall devote his full business
time
and best efforts to the business and affairs of the Company. In his capacity
as
the Chief Executive Officer of the Company, Executive shall have such duties
and
responsibilities as he may be assigned by the Board of Directors of the Company
not inconsistent with his position as Chief Executive Officer of
the
Company.
(c) Appointment
at Columbia University.
Executive shall be permitted to continue with his appointment as a faculty
member of Columbia University, provided that such duties do not interfere with
his duties as Chief Executive Officer of the Company and subject in all cases
to
ongoing approval of the Board of Directors of the Company.
| 3. |
Compensation
and Benefits.
|
(a) Base
Salary.
The
Company agrees to pay to Executive a base salary (“Base Salary”) at the annual
rate of $400,000, subject to any cost of living adjustments as may be approved
by the Board of Directors of the Company. Payments of the Base Salary shall
be
payable in equal installments in accordance with the Company’s standard payroll
practices.
(b) Annual
Bonus.
The
Company may, in its sole discretion, pay to Executive a bonus in an amount
to be
determined by the Board of Directors in its sole discretion. Such bonus, if
any,
may be payable in cash or options to purchase Common Stock or restricted shares
of Common Stock, as determined by the Board of Directors in its sole discretion.
Any such cash bonus shall be paid, and any such options or restricted shares
shall be issued, no later than March 15 of the year following the year in which
the Board of Directors determined such bonus, or, if later, by the date that
is
2½ months following the end of the Company’s fiscal year in which the Board of
Directors determined such bonus.
(c) Benefits
and Perquisites.
Executive shall be entitled to participate in, to the extent Executive is
otherwise eligible under the terms thereof, the benefit plans and programs,
and
receive the benefits and perquisites, generally provided by the Company to
senior executives of the Company, including without limitation family medical
insurance (subject to applicable employee contributions). Executive shall be
entitled to receive vacation days in accordance with Company policy, such days
to be accrued in accordance with Company policy.
(d) Business
Expenses.
The
Company agrees to reimburse Executive for all reasonable and necessary travel,
business entertainment and other business expenses incurred by Executive in
connection with the performance of his duties under this Agreement. Such
reimbursements shall be made by the Company on a timely basis upon submission
by
Executive of vouchers in accordance with the Company’s standard
procedures.
(e) Indemnification.
The
Company shall indemnify Executive, to the fullest extent permitted by its
certificate of incorporation, for any and all liabilities to which he may be
subject as a result of, in connection with or arising out of his employment
by
the Company hereunder, as well as the costs and expenses (including reasonable
attorneys’ fees) of any legal action brought or threatened to be brought against
him or the Company as a result of, in connection with or arising out of such
employment or board service. Executive shall be entitled to the full protection
of any insurance policies which the Company may elect to maintain generally
for
the benefit of its officers.
(f) No
Other Compensation or Benefits; Payment.
The
compensation and benefits specified in this Section 3 and in Section 5 of this
Agreement shall be in lieu of any and all other compensation and benefits.
Payment of all compensation and benefits to Executive specified in this Section
3 and in Section 5 of this Agreement (i) shall be made in accordance with the
relevant Company policies in effect from time to time to the extent the same
are
consistently applied, including normal payroll practices, and (ii) shall be
subject to all legally required and customary withholdings.
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(g) Cessation
of Employment.
In the
event Executive shall cease to be employed by the Company for any reason,
Executive’s compensation and benefits shall cease on the date of such event,
except as otherwise specifically provided herein or in any applicable employee
benefit plan or program or as required by law.
4. Termination
of Employment.
Executive’s employment hereunder may be terminated prior to the end of the Term
under the following circumstances.
(a) Death.
Executive’s employment hereunder shall terminate upon Executive’s
death.
(b) Executive
Becoming Totally Disabled.
The
Company may terminate Executive’s employment hereunder at any time after
Executive becomes “Totally Disabled.” For purposes of this Agreement, Executive
shall be “Totally Disabled” in the event Executive is unable to perform the
duties and responsibilities contemplated under this Agreement for a period
of
either (A) 120 consecutive days or (B) 6 months in any 12-month period due
to
physical or mental incapacity or impairment. During any period that Executive
fails to perform Executive’s duties hereunder as a result of incapacity due to
physical or mental illness (the “Disability Period”), Executive shall continue
to receive the compensation and benefits provided by Section 3 of this Agreement
until Executive’s employment hereunder is terminated; provided, however, that
the amount of base compensation and benefits received by Executive during the
Disability Period shall be reduced by the aggregate amounts, if any, payable
to
Executive under any disability benefit plan or program provided to Executive
by
the Company.
(c) Termination
by the Company for Cause.
The
Company may terminate Executive’s employment hereunder for Cause at any time
after providing written notice to Executive. For purposes of this Agreement,
the
term “Cause” shall mean any of the following: (i) Executive’s neglect or failure
or refusal to perform his duties under this Agreement (other than as a result
of
total or partial incapacity due to physical or mental illness); (ii) any act
by
or omission of Executive constituting gross negligence or willful misconduct
in
connection with the performance of his duties that could reasonably be expected
to materially injure the reputation, business or business relationships of
the
Company or any of its affiliates; (iii) perpetration of an intentional and
knowing fraud against or affecting the Company or any of its affiliates or
any
customer, client, agent, or employee thereof; (iv) the commission by or
indictment of Executive for (A) a felony or (B) any misdemeanor involving moral
turpitude, deceit, dishonesty or fraud (“indictment,” for these purposes,
meaning a United States-based indictment, probable cause hearing or any other
procedure pursuant to which an initial determination of probable or reasonable
cause with respect to such offense is made); (v) the breach of a covenant set
forth in Section 6; or (vi) any other material breach of this
Agreement.
(d) Termination
by the Company Without Cause.
The
Company may terminate Executive’s employment hereunder at any time for any
reason or no reason by giving Executive thirty (30) days prior written notice
of
the termination. Following any such notice, the Company may reduce or remove
any
and all of Executive’s duties, positions and titles with the
Company.
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(e) Termination
by Executive for Good Reason.
Executive may terminate his employment hereunder for Good Reason at any time
after providing written notice to the Company. For purposes of this Agreement,
the term “Good Reason” shall mean any of the following: (i) the Company fails to
pay the compensation described in Section 3(a) of this Agreement (in accordance
with, and subject to, such provisions); (ii) Executive no longer holds the
office of Chief Executive Officer or
offices of equivalent stature, or his functions and/or duties as Chief Executive
Officer are
materially diminished; or (iii) Executive’s job site is relocated to a location
which is more than fifty (50) miles from New York City unless the parties
mutually agree to such relocation.
(f) Termination
Upon a Change in Control.
If the
Company terminates Executive’s employment hereunder without Cause within
90
days after the occurrence of the Change in Control Executive shall be entitled
to the payments provided for by Section 5(d). For purposes of this Agreement,
a
“Change in Control” shall be conclusively deemed to have occurred if any of the
following shall have taken place:
(i) the
consummation of a transaction or a series of related transactions pursuant
to
which any “person” (as such term is used in Sections 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934 (“Exchange Act”), other than the Executive, his
designee(s) or “affiliate(s)” (as defined in Rule 12b-2 under the Exchange Act),
is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company representing
forty percent (40%) or more of the combined voting power of the Company’s then
outstanding securities;
(ii) stockholders
of the Company approve a merger or consolidation of the Company with any other
entity, other than a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior thereto continuing
to
represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity) more than eighty percent (80%) of the
combined voting power of the voting securities of the Company or such surviving
entity outstanding immediately after such merger or consolidation;
or
(iii) the
stockholders of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company of, or the
Company sells or disposes of, all or substantially all of the Company’s
assets.
(g) Termination
by Executive Without Good Reason.
Executive may terminate his employment hereunder at any time for any reason
or
no reason by giving the Company thirty (30) days prior written notice of the
termination. Following any such notice, the Company may reduce or remove any
and
all of Executive’s duties, positions and titles with the Company, and any such
reduction or removal shall not constitute Good Reason.
5. Compensation
Following Termination.
In the
event that Executive’s employment hereunder is terminated, Executive shall be
entitled only to the following compensation and benefits upon such
termination:
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(a)
General.
On any termination of Executive’s employment prior to the end of the Term,
Executive shall be entitled to the following (collectively, the “Standard
Termination Payments”):
(i) any
accrued but unpaid Base Salary for services rendered through the date of
termination; provided, however, that in the event Executive’s employment is
terminated pursuant to Section 4(b), the amount of Base Salary received by
Executive during the Disability Period shall be reduced by the aggregate
amounts, if any, payable to Executive under any disability benefit plan or
program provided to Executive by the Company;
(ii) any
vacation accrued to the date of termination, in accordance with Company
policy;
(iii) any
accrued but unpaid expenses through the date of termination required to be
reimbursed in accordance with Section 3(d) of this Agreement; and
(iv) any
benefits to which he may be entitled upon termination pursuant to the plans,
programs and grants referred to in Section 3(c) hereof in accordance with the
terms of such plans, programs and grants.
(b) Termination
Prior to the Expiration of the Term by Reason of Death or Executive Becoming
Totally Disabled; Termination Prior to the Expiration of the Term by the Company
for Cause; Termination Prior to the Expiration of the Term by Executive Without
Good Reason.
In the
event that Executive’s employment is terminated prior to the expiration of the
Term (i) by reason of Executive’s death pursuant to Section 4(a) or Executive
becoming Totally Disabled pursuant to Section 4(b), (ii) by the Company for
Cause pursuant to Section 4(c) or (iii) by Executive without Good Reason
pursuant to Section 4(g), Executive (or his estate, as the case may be) shall
be
entitled only to the Standard Termination Payments.
(c) Termination
Prior to the Expiration of the Term by the Company Without Cause; Termination
Prior to the Expiration of the Term by Executive for Good Reason.
In the
event that Executive’s employment is terminated prior to the expiration of the
Term by the Company without Cause pursuant to Section 4(d) or by Executive
for
Good Reason pursuant to Section 4(e), Executive shall be entitled only to the
following:
(i) the
Standard Termination Payments; and
(ii) the
continued payment of the Base Salary (as determined pursuant to Section 3(a))
for one year
(such
sums to be paid at the times and in the amounts such Base Salary would have
been
paid had Executive’s employment not terminated); provided, however, that if
necessary to comply with Section 409A(a)(2)(B)(i) of the Internal Revenue Code
of 1986, as amended (the “Code”), and applicable administrative guidance and
regulations, the payment of such sums shall be made as follows: (A) no payments
shall be made for a six-month period following the date of termination, (B)
an
amount equal to six months of Base Salary shall be paid in a lump sum six months
following the date of termination, and (C) during the period beginning six
months following the date of termination through the remainder of the
twelve-month period,
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payment
of the Base Salary shall be made at the times and in the amounts such Base
Salary would have been paid had Executive’s employment not
terminated.
(iii) the
Company shall take all such action as is necessary such that all stock options
and other stock-based grants to Executive shall, immediately and irrevocably
vest and become exercisable as of the date of termination and shall remain
exercisable for a period of not less than one (1) year from the date of
termination.
(d) Termination
Upon a Change of Control.
In the
event that the Company terminates Executive’s employment upon a Change in
Control other than for Cause pursuant to Section 4(f), Executive shall be
entitled only to the following:
(i) the
Standard Termination Payments;
(ii) the
continued payment of the Base Salary (as determined pursuant to Section 3(a))
for one year (such sums to be paid at the times and in the amounts such Base
Salary would have been paid had Executive’s employment not terminated);
provided, however, that if necessary to comply with Section 409A(a)(2)(B)(i)
of
the Internal Revenue Code of 1986, as amended (the “Code”), and applicable
administrative guidance and regulations, the payment of such sums shall be
made
as follows: (A) no payments shall be made for a six-month period following
the
date of termination, (B) an amount equal to six months of Base Salary shall
be
paid in a lump sum six months following the date of termination, and (C) during
the period beginning six months following the date of termination through the
remainder of the twelve-month period, payment of the Base Salary shall be made
at the times and in the amounts such Base Salary would have been paid had
Executive’s employment not terminated; and
(iii) the
Company shall take all such action as is necessary such that all stock options
and other stock-based grants to Executive shall, immediately and irrevocably
vest and become exercisable as of the date of termination and shall remain
exercisable for a period of not less than one (1) year from the date of
termination.
(e) Effect
of Material Breach of Section 6 on Compensation and Benefits Following
Termination of Employment Pursuant to Sections 5(c)(ii) or
5(d)(ii).
If, at
the time of termination of Executive’s employment for any reason prior to the
expiration of the Term or any time thereafter, Executive is in material breach
of any covenant contained in Section 6 hereof, Executive (or his estate, as
applicable) shall not be entitled to any payment (or if payments have commenced,
any continued payment) under Sections 5(c)(ii) or 5(d)(ii).
(f) No
Further Liability; Release.
Payment
made and performance by the Company in accordance with this Section 5 shall
operate to fully discharge and release the Company and its directors, officers,
employees, affiliates, stockholders, successors, assigns, agents and
representatives from any further obligation or liability with respect to
Executive’s employment and termination of employment. Other than providing the
compensation and benefits provided for in accordance with this Section 5, the
Company and its directors, officers, employees, affiliates, stockholders,
successors, assigns, agents and representatives shall have no further obligation
or liability to Executive or any other person under this Agreement. The
payment
of any amounts pursuant to this Section 5 (other than payments required by
law)
is
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expressly
conditioned upon the delivery by Executive to the Company of a release in form
and substance reasonably satisfactory to the Company of any and all claims
Executive may have against the Company and its directors, officers, employees,
affiliates, stockholders, successors, assigns, agents and representatives
arising out of or related to Executive’s employment by the Company and the
termination of such employment.
6. Exclusive
Employment; Non-competition; Non-solicitation; Nondisclosure of Proprietary
Information; Surrender of Records; Inventions and Patents; Code of
Ethics.
(a) No
Conflict; No Other Employment.
During
the period of Executive’s employment with the Company, Executive shall not: (i)
engage in any activity which conflicts or interferes with or derogates from
the
performance of Executive’s duties hereunder nor shall Executive engage in any
other business activity, whether or not such business activity is pursued for
gain or profit and including service as a director of any other company, except
as approved in advance in writing by the Company; provided, however, that
Executive shall be entitled to manage his personal investments and otherwise
attend to personal affairs, including charitable, social and political
activities, in a manner that does not unreasonably interfere with his
responsibilities hereunder, or (ii) accept or engage in any other employment,
whether as an employee or consultant or in any other capacity, and whether
or
not compensated therefor.
(b) Non-competition;
Non-solicitation.
(i) Executive
acknowledges and recognizes the highly competitive nature of the Company’s
business and that access to the Company’s confidential records and proprietary
information renders him special and unique within the Company’s industry. In
consideration of the payment by the Company to Executive of amounts that may
hereafter be paid to Executive pursuant to this Agreement (including, without
limitation, pursuant to Sections 3 and 5 hereof) and other obligations
undertaken by the Company hereunder, Executive agrees that during (i) his
employment with the Company and (ii) twenty-four months thereafter (the “Covered
Time”), Executive shall not, directly or indirectly, engage (as owner, investor,
partner, stockholder, employer, employee, consultant, advisor, director or
otherwise) in any Competing Business, provided that the provisions of this
Section 6(b) will not be deemed breached merely because Executive owns less
than
1% of the outstanding common stock of a publicly-traded company. For purposes
of
this Agreement, “Competing Business” shall mean (i) any business in which the
Company or its affiliates are currently engaged anywhere in the world; and
(ii)
any other business in which the Company engages in anywhere in the world during
the Term.
(ii) In
further consideration of the payment by the Company to Executive of amounts
that
may hereafter be paid to Executive pursuant to this Agreement (including,
without limitation, pursuant to Sections 3 and 5 hereof) and other obligations
undertaken by the Company hereunder, Executive agrees that during his employment
and the Covered Time, he shall not, directly or indirectly, (i) solicit,
encourage or attempt to solicit or encourage any of the employees, agents,
consultants or representatives of the Company or any of its
affiliates to terminate his, her, or its relationship with the Company or such
affiliate;
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(ii) solicit,
encourage or attempt to solicit or encourage any of the employees, agents,
consultants or representatives of the Company or any of its affiliates to become
employees, agents, representatives or consultants of any other person or entity;
(iii) solicit or attempt to solicit any customer, vendor or distributor of
the
Company or any of its affiliates with respect to any product or service being
furnished, made, sold or leased by the Company or such affiliate; or (iv)
persuade
or seek to persuade any customer of the Company or any affiliate to cease to
do
business or to reduce the amount of business which any customer has customarily
done or contemplates doing with the Company or such affiliate, whether or not
the relationship between the Company or its affiliate and such customer was
originally established in whole or in part through Executive’s efforts. For
purposes of this Section 6(b) only, the terms “customer,” “vendor” and
“distributor” shall mean a customer, vendor or distributor who has done business
with the Company or any of its affiliates within twelve months preceding the
termination of Executive’s employment.
(iii) During
Executive’s employment with the Company and during the Covered Time, Executive
agrees that upon the earlier of Executive’s (i) negotiating with any Competitor
(as defined below) concerning the possible employment of Executive by the
Competitor, (ii) receiving an offer of employment from a Competitor, or (iii)
becoming employed by a Competitor, Executive will (A) immediately provide notice
to the Company of such circumstances and (B) provide copies of Section 6 of
this
Agreement to the Competitor. Executive further agrees that the Company may
provide notice to a Competitor of Executive’s obligations under this Agreement,
including without limitation Executive’s obligations pursuant to Section 6
hereof. For purposes of this Agreement, “Competitor” shall mean any entity
(other than the Company or any of its affiliates) that engages, directly or
indirectly, in any Competing Business.
(iv) Executive
understands that the provisions of this Section 6(b) may limit his ability
to
earn a livelihood in a business similar to the business of the Company or its
affiliates but nevertheless agrees and hereby acknowledges that the
consideration provided under this Agreement, including any amounts or benefits
provided under Sections 3 and 5 hereof and other obligations undertaken by
the
Company hereunder, is sufficient to justify the restrictions contained in such
provisions. In consideration thereof and in light of Executive’s education,
skills and abilities, Executive agrees that he will not assert in any forum
that
such provisions prevent him from earning a living or otherwise are void or
unenforceable or should be held void or unenforceable.
(c) Proprietary
Information.
Executive acknowledges that during the course of his employment with the Company
he will necessarily have access to and make use of proprietary information
and
confidential records of the Company and its affiliates. Executive covenants
that
he shall not during the Term or at any time thereafter, directly or indirectly,
use for his own purpose or for the benefit of any person or entity other than
the Company, nor otherwise disclose, any proprietary information to any
individual or entity, unless such disclosure has been authorized in writing
by
the Company or is otherwise required by law. Executive acknowledges and
understands that the term “proprietary information” includes, but is not limited
to: (a) inventions, trade secrets, ideas, processes, formulas, source and
object codes,
data, programs, other works of authorship, know-how, improvements, research,
discoveries, developments, designs, and techniques regarding any of the
foregoing utilized by
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the
Company or any of its affiliates; (b) the name and/or address of any
customer or vendor of the Company or any of its affiliates or any information
concerning the transactions or relations of any customer or vendor of the
Company or any of its affiliates with the Company or such affiliate or any
of
its or their partners, principals, directors, officers or agents; (c) any
information concerning any product, technology, or procedure employed by the
Company or any of its affiliates but not generally known to its or their
customers, vendors or competitors, or under development by or being tested
by
the Company or any of its affiliates but not at the time offered generally
to
customers or vendors; (d) any
information relating to the pricing or marketing methods, sales margins, cost
of
goods, cost of material, capital structure, operating results, borrowing
arrangements or business plans of the Company or any of its affiliates; (e)
any
information which is generally regarded as confidential or proprietary in any
line of business engaged in by the Company or any of its affiliates; (f) any
business plans, budgets, advertising or marketing plans; (g) any information
contained in any of the written or oral policies and procedures or manuals
of
the Company or any of its affiliates; (h) any information belonging to customers
or vendors of the Company or any of its affiliates or any other person or entity
which the Company or any of its affiliates has agreed to hold in confidence;
(i)
any inventions, innovations or improvements covered by this Agreement; and
(j) all written, graphic and other material relating to any of the
foregoing. Executive acknowledges and understands that information that is
not
novel or copyrighted or patented may nonetheless be proprietary information.
The
term “proprietary information” shall not include information generally available
to and known by the public or information that is or becomes available to
Executive on a non-confidential basis from a source other than the Company,
any
of its affiliates, or the directors, officers, employees, partners, principals
or agents of the Company or any of its affiliates (other than as a result of
a
breach of any obligation of confidentiality).
(d) Confidentiality
and Surrender of Records.
Executive shall not during the Term or at any time thereafter (irrespective
of
the circumstances under which Executive’s employment by the Company terminates),
except as required by law, directly or indirectly publish, make known or in
any
fashion disclose any confidential records to, or permit any inspection or
copying of confidential records by, any individual or entity other than in
the
course of such individual’s or entity’s employment or retention by the Company.
Upon termination of employment for any reason or upon request by the Company,
Executive shall deliver promptly to the Company all property and records of
the
Company or any of its affiliates, including, without limitation, all
confidential records. For purposes hereof, “confidential records” means all
correspondence, reports, memoranda, files, manuals, books, lists, financial,
operating or marketing records, magnetic tape, or electronic or other media
or
equipment of any kind which may be in Executive’s possession or under his
control or accessible to him which contain any proprietary information. All
property and records of the Company and any of its affiliates (including,
without limitation, all confidential records) shall be and remain the sole
property of the Company or such affiliate during the Term and
thereafter.
(e) Inventions
and Patents.
(i) The
Executive agrees that all processes, technologies and inventions (collectively,
"Inventions"), including new contributions, improvements, ideas and discoveries,
whether patentable or not, conceived, developed, invented or made by him during
the Term shall belong to the Company, provided that such Inventions grew out
of
the Executive's
9
work
with
the Company or any of its subsidiaries or affiliates, are related in any manner
to the business (commercial or experimental) of the Company or any of its
subsidiaries or affiliates or are conceived or made on the Company's time or
with the use of the Company's facilities or materials. The Executive shall
further: (a) promptly disclose such Inventions to the Company; (b) assign to
the
Company, without additional compensation, all patent and other rights to such
Inventions for the United States and foreign countries; (c) sign all papers
necessary to carry out the foregoing; and (d) give testimony in support of
the
Executive's inventorship.
(ii) If
any
Invention is described in a patent application or is disclosed to third parties,
directly or indirectly, by the Executive within two years after the termination
of the Executive's employment by the Company, it is to be presumed that the
Invention was conceived or made during the Term.
(iii) The
Executive agrees that the Executive will not assert any rights to any Invention
as having been made or acquired by the Executive prior to the date of this
Agreement, except for Inventions, if any, disclosed to the Company in writing
prior to the date hereof.
(iv) The
Company shall be the sole owner of all the products and proceeds of the
Executive's services hereunder, including, but not limited to, all materials,
ideas, concepts, formats, suggestions, developments, arrangements, packages,
programs and other intellectual properties that the Executive may acquire,
obtain, develop or create in connection with and during the Term, free and
clear
of any claims by the Executive (or anyone claiming under the Executive) of
any
kind or character whatsoever (other than the Executive's right to receive
payments hereunder). The Executive shall, at the request of the Company, execute
such assignments, certificates or other instruments as the Company may from
time
to time deem necessary or desirable to evidence, establish, maintain, perfect,
protect, enforce or defend its right, title or interest in or to any such
properties.
(f) Enforcement.
Executive acknowledges and agrees that, by virtue of his position, his services
and access to and use of confidential records and proprietary information,
any
violation by him of any of the undertakings contained in this Section 6 would
cause the Company and/or its affiliates immediate, substantial and irreparable
injury for which it or they have no adequate remedy at law. Accordingly,
Executive agrees and consents to the entry of an injunction or other equitable
relief by a court of competent jurisdiction restraining any violation or
threatened violation of any undertaking contained in this Section 6. Executive
waives posting by the Company or its affiliates of any bond otherwise necessary
to secure such injunction or other equitable relief. Rights and remedies
provided for in this Section 6 are cumulative and shall be in addition to rights
and remedies otherwise available to the parties hereunder or under any other
agreement or applicable law.
(g) Code
of Ethics.
Nothing
in this Section 6 is intended to limit, modify or reduce Executive’s obligations
under the Company’s Code of Ethics. Executive’s obligations under this Section 6
are in addition to, and not in lieu of, Executive’s obligations under
the
Code of Ethics. To the extent there is any inconsistency between this Section
6
and the Code of Ethics which would permit Executive to take any action or engage
in any activity
10
pursuant
to this Section 6 which he would be barred
from taking or engaging in under the Code of Ethics, the Code of Ethics shall
control.
7. Assignment
and Transfer.
(a) Company.
This
Agreement shall inure to the benefit of and be enforceable by, and may be
assigned by the Company without Executive’s consent to, any purchaser of all or
substantially all of the Company’s business or assets, or to any successor to
the Company or any assignee thereof (whether direct or indirect, by purchase,
merger, consolidation or otherwise).
(b) Executive.
The
parties hereto agree that Executive is obligated under this Agreement to render
personal services during his employment of a special, unique, unusual,
extraordinary and intellectual character, thereby giving this Agreement special
value. Executive’s rights and obligations under this Agreement shall not be
transferable by Executive by assignment or otherwise, and any purported
assignment, transfer or delegation thereof shall be void; provided, however,
that if Executive shall die, all amounts then payable to Executive hereunder
shall be paid in accordance with the terms of this Agreement to Executive’s
estate.
8. Miscellaneous.
(a) Cooperation.
Following termination of employment with the Company for any reason, Executive
shall cooperate with the Company, as requested by the Company, to effect a
transition of Executive’s responsibilities and to ensure that the Company is
aware of all matters being handled by Executive.
(b) Mitigation.
Executive shall not be required to mitigate damages or the amount of any payment
provided to him under Section 5 of this Agreement by seeking other employment
or
otherwise, nor shall the amount of any payments provided to Executive under
Section 5 be reduced by any compensation earned by Executive as the result
of
employment by another employer after the termination of Executive’s employment
or otherwise.
(c) Protection
of Reputation.
During
the Term and thereafter, Executive agrees that he will take no action which
is
intended, or would reasonably be expected, to harm the Company or any of its
affiliates or its or their reputation or which would reasonably be expected
to
lead to unwanted or unfavorable publicity to the Company or its affiliates.
Nothing herein shall prevent Executive from making any truthful statement in
connection with any legal proceeding or investigation by the Company or any
governmental authority.
(d) Governing
Law; Consent to Jurisdiction.
This
Agreement shall be governed by and construed (both as to validity and
performance) and enforced in accordance with the internal laws of the State
of
New York applicable to agreements made and to be performed wholly within such
jurisdiction, without regard to the principles of conflicts of law or where
the
parties are located at the time a dispute arises. In the event of any
controversy or claim arising out of or relating to this Agreement or the breach
or alleged breach hereof, each of the parties hereto irrevocably (a) consents
to
the jurisdiction of any state court sitting in the County
of
New York, State of New York, or federal court sitting in the County of New
York,
State of New York. (b) waives any objection which it may have at any time to
the
laying of
11
venue
of any action or proceeding brought in any such
court and (c) waives any claim that such action or proceeding has been brought
in an inconvenient forum.
(e) Injunctive
Relief.
Notwithstanding anything to the contrary contained herein, the Company and
any
affiliate of the Company (if applicable) shall have the right to seek injunctive
or other equitable relief from a court of competent jurisdiction to enforce
Section 6 of this Agreement without any obligation to post a bond.
(f) Entire
Agreement.
This
Agreement (including the plans referenced in Section 3(c) of this Agreement)
contain the entire agreement and understanding between the parties hereto in
respect of Executive’s employment from and after the date hereof and supersede,
cancel and annul any prior or contemporaneous written or oral agreements,
understandings, commitments and practices between them respecting Executive’s
employment from and after the date hereof, including all prior employment
agreements between the Company and Executive.
(g) Amendment.
This
Agreement may be amended only by a writing which makes express reference to
this
Agreement as the subject of such amendment and which is signed by Executive
and,
on behalf of the Company, by its duly authorized officer.
(h) Severability.
If any
provision of this Agreement or the application of any such provision to any
party or circumstances shall be determined by any court of competent
jurisdiction or arbitration panel to be invalid or unenforceable to any extent,
the remainder of this Agreement, or the application of such provision to such
person or circumstances other than those to which it is so determined to be
invalid or unenforceable, shall not be affected thereby, and each provision
hereof shall be enforced to the fullest extent permitted by law. If any
provision of this Agreement, or any part thereof, is held to be invalid or
unenforceable because of the scope or duration of or the area covered by such
provision, the parties hereto agree that the court or arbitration panel making
such determination shall reduce the scope, duration and/or area of such
provision (and shall substitute appropriate provisions for any such invalid
or
unenforceable provisions) in order to make such provision enforceable to the
fullest extent permitted by law and/or shall delete specific words and phrases,
and such modified provision shall then be enforceable and shall be enforced.
The
parties hereto recognize that if, in any judicial or arbitral proceeding, a
court or arbitration panel shall refuse to enforce any of the separate covenants
contained in this Agreement, then that invalid or unenforceable covenant
contained in this Agreement shall be deemed eliminated from these provisions
to
the extent necessary to permit the remaining separate covenants to be enforced.
In the event that any court or arbitration panel determines that the time period
or the area, or both, are unreasonable and that any of the covenants is to
that
extent invalid or unenforceable, the parties hereto agree that such covenants
will remain in full force and effect, first, for the greatest time period,
and
second, in the greatest geographical area that would not render them
unenforceable.
(i) Construction.
The
headings and captions of this Agreement are provided for convenience only and
are intended to have no effect in construing or interpreting this Agreement.
The
language in all parts of this Agreement shall be in all cases construed
according
to its fair meaning and not strictly for or against the Company or Executive.
As
used herein, the words “day” or “days” shall mean a calendar day or
days.
12
(j) Non-waiver.
Neither
any course of dealing nor any failure or neglect of either party hereto in
any
instance to exercise any right, power or privilege hereunder or under law shall
constitute a waiver of any other right, power or privilege or of the same right,
power or privilege in any other instance. All waivers by either party hereto
must be contained in a written instrument signed by the party to be charged
and,
in the case of the Company, by its duly authorized officer.
(k) Notices.
Any
notice required or permitted hereunder shall be in writing and shall be
sufficiently given if personally delivered or if sent by registered or certified
mail, postage prepaid, with return receipt requested, addressed:
(i) in
the
case of the Company, to :
|
If
to the
Company:
|
|
|
SIGA
Technologies, Inc.
|
|
|
000
Xxxxxxxxx Xxxxxx, Xxxxx 000
|
|
|
Xxx
Xxxx, XX 00000
|
|
|
Attention:
|
Chief
Financial Officer
|
|
Telephone Number:
|
(000)
000-0000
|
|
Facsimile
Number:
|
(000)
000-0000
|
|
With
a
copy to:
|
|
|
Xxxxx
X. Xxxxxx, Esq.
|
|
|
Xxxxxx
Xxxxx Xxxxxxxx & Xxxxxxx LLP
|
|
|
0000
Xxxxxx xx xxx Xxxxxxxx
|
|
|
Xxx
Xxxx, XX 00000
|
|
|
Telephone
Number:
|
(000)
000-0000
|
|
Facsimile
Number:
|
(000)
000-0000
|
(ii) in
the
case of Executive, to Executive’s last known address as reflected in the
Company’s records, or to such other address as Executive shall designate by
written notice to the Company.
Any
notice given hereunder shall be deemed to have been given at the time of receipt
thereof by the person to whom such notice is given if personally delivered
or at
the time of mailing if sent by registered or certified mail.
(l) Assistance
in Proceedings, Etc.
Executive shall, without additional compensation, during and after the Term,
upon reasonable notice, furnish such information and proper assistance to the
Company as may reasonably be required by the Company in connection with
any
legal or quasi-legal proceeding, including any external or internal
investigation, involving the Company or any of its affiliates.
(m) Survival.
Cessation or termination of Executive’s employment with the Company shall not
result in termination of this Agreement. The respective obligations
13
of
Executive and the Company as provided in Sections
5, 6, 7 and 8 of this Agreement shall survive cessation or termination of
Executive’s employment hereunder.
(n) Section
409A of the Code.
(i) It
is the
parties’ intention that this Agreement not result in any tax being imposed under
Section 409A of the Code and in the case of any ambiguity the Agreement shall
be
construed in such manner.
(ii) Notwithstanding
the foregoing, the Company makes no representations regarding the tax
implications of the compensation and benefits to be paid to Executive under
this
Agreement, including, without limitation, under Section 409A of the Code. The
parties agree that in the event a qualified tax advisor to the Company or to
Executive (neither party being required to retain such advisor) reasonably
advises that the terms hereof would result in Executive being subject to tax
under Section 409A of the Code, Executive and the Company shall negotiate in
good faith to amend this Agreement to the extent necessary to prevent the
assessment of any such tax, including by delaying the payment dates of any
amounts hereunder.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
14
IN
WITNESS WHEREOF, the Company has caused this Agreement to be duly executed
on
its behalf by an individual thereunto duly authorized and Executive has duly
executed this Agreement, all as of the date and year first written
above.
|
SIGA
TECHNOLOGIES, INC.
|
||
|
By:
|
/s/
Xxxxxx X.
Xxxxxxxx
|
|
|
Name:
|
Xxxxxx
X.
Xxxxxxxx
|
|
|
Title:
|
Chief
Financial Officer and
Acting
Chief
Executive
Officer
|
|
|
/s/
Xxxx X.
Xxxx
|
|
|
Name:
|
Xx. Xxxx X. Xxxx, M.D.
|
15
