EXHIBIT 10.42
EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of the 1st day of January, 2004, between ORAGENICS,
INC., a Florida corporation, 00000 Xxxxxxxx Xxxxx, Xxxxxxx XX 00000 hereinafter
referred to as the "Employer", and XXXXX X. XXXXXXX, 0000 XX 000 Xxx,
Xxxxxxxxxxx XX 00000, hereinafter referred to as the "Employee".
The parties recite that:
A. The Employer is a company engaged in research and development of
proprietary technologies, and
B. The Employee, a knowledgeable business executive with
considerable experience in early stage technology companies, is willing to be
employed by the Employer upon the terms and conditions hereinafter set forth.
For the reasons set forth above, and in consideration of the mutual
covenants and promises of the parties hereto, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Employer and the Employee covenant and agree as follows:
1. AGREEMENT TO EMPLOY AND BE EMPLOYED
The Employer hereby employs the Employee as President and Chief Executive
Officer, reporting directly to the Board of Directors at its above-mentioned
premises, and the Employee hereby accepts and agrees to such employment.
2. DESCRIPTION OF EMPLOYEE'S DUTIES
The Employee shall perform such duties as may be entrusted to him by the
Board of Directors, and the Bylaws of the corporation, and he shall perform such
other duties as are customary performed by one holding such positions in other
businesses or enterprises of a same or similar nature. There shall be no
substantial reduction in the duties, title and/or authorities of the Employee
without the express written consent of the Employee.
The Employee shall devote substantially all of his entire productive time,
abilities, energies and attention to the business of the Employer during the
term of this Agreement. The Employee shall not, during the term of this
Agreement, be engaged for salaried remuneration in any other business activity
without the expressed written consent of the Employer.
The Employee shall also serve on the Board of Directors of the Employer,
and for the purposes of this Agreement, shall be considered a senior member of
the Employer's management staff, herein referred to as the Executive Officers.
3. DURATION OF EMPLOYMENT
The term of employment of the Employee shall be three (3) years,
commencing January 1, 2004 and terminating on December 31, 2007. After the
expiration of the initial three (3) year period, the term of the Employee's
employment hereunder shall be automatically extended for additional successive
one (1) year periods unless either party gives the other party ninety (90) days
written notice prior to the expiration of the current term of his or its
intention not to renew this Agreement for an additional term.
4. TERMINATION OF EMPLOYMENT
This Agreement may be terminated by the resignation of the Employee upon
ninety (90) days prior written notice to the Employer. No further compensation
shall be payable to the Employee hereunder after the effective date of such
resignation. The term of employment may be terminated by the Employer without
cause upon ninety (90) days prior written notice to Employee, or by Employee for
Good Reason, wherein Good Reason shall mean, except with the Employee's express
written consent, (a) the relocation of Employee's principal place of employment
to a geographic location more than 50 miles from the current location of
Employer's principal headquarters, or (b) a significant reduction in Employee's
duties, position or responsibilities (other than for Cause), provided, however,
that upon such termination of employment, there shall become due and payable to
the Employee by the Employer all outstanding compensation as then unpaid under
this Agreement, including a severance payment equal to one year's salary at the
rate of pay then in effect for Employee and all stock purchase options granted
to Employee and benefits under any benefit plans of Employer or agreements with
Employee shall become immediately vested in full and, in the case of stock
options, exercisable in full.
Any other provision in this Agreement to the contrary notwithstanding, the
Employer at its option may terminate this Agreement at any time for Cause,
wherein Cause constitutes a habitual neglect, failure or refusal on the part of
the Employee to substantially perform his duties under this Agreement, provided
however, that the Employer shall have notified the Employee in writing of such
habitual neglect, failure or refusal of his duties so that he may have sixty
(60) days to rectify such conduct prior to a written termination by Employer.
For the additional purpose of this paragraph, the Employee may be terminated for
Cause if (a) the Employee becomes convicted of any criminal act which is a first
or second degree felony under the laws of the State of Florida or the United
States or (b) engages in fraud, embezzlement, theft or comparable dishonest
activity against the Employer.
5. COMPENSATION AND REIMBURSEMENT
Except as otherwise provide for herein, the Employer shall pay the
Employee, and the Employee agrees to accept from the Employer, in full payment
of the Employee's services hereunder, at a compensation rate of One Hundred
Eighty Thousand Dollars ($180,000) per year, payable at the same frequency as
all other Executive Officers of the Employer are paid, but in no event less
frequent than once each month during which this Agreement is in force. Such
annual compensation will from time to time be increased by approval of the Board
of Directors of Employer. All salary payments and other benefits shall be
subject to proper withholding and other applicable taxes.
In addition to the foregoing, the Employer will reimburse the Employee for
any and all necessary, customary and usual expenses incurred by him while
traveling for and on behalf of the Employer pursuant to the Employer's
direction. The Employee shall present to the Employer from time to time an
itemized account of such expenses in such form as may be reasonable required by
the Employer, or the Internal Revenue Service.
The Employer shall in addition provide the following initial fringe
benefits to the Employee:
A. The Employee shall be entitled initially to four (4) weeks of
paid combined vacation/sick leave per annum, accrued monthly, with said accrual
to be accumulated from year to year indefinitely during the term of this
Agreement. Such combined vacation/sick leave which is unused by the Employee
shall, at the end of the term of this Agreement, be paid to the Employee in a
lump sum upon the Employee's written request, or shall roll over for future use
should the Agreement be extended by mutual consent.
B. Participation by Employee in all of the Employer's currently
established fringe benefits (i.e.- paid holidays, health insurance coverage,
retirement plans, etc.), as well as participation in all fringe benefits to be
established in the future (i.e.- disability and life insurance, ESOP,
automobile, etc.) for the Executive Officers and/or the employees of the
Employer.
C. Participation by Employee in any incentive/bonus compensation
plans to be designed and provided for by the Employer which awards stock and/or
cash bonuses for performance achieved by the Employee, and other employees of
the Employer, during the term of this Agreement.
6. DEATH OR PERMANENT DISABILITY DURING EMPLOYMENT
If the Employee dies during the term of his employment hereunder, this
Agreement shall terminate and the Employer shall pay to the estate of the
Employee the compensation which would otherwise be payable to the Employee up to
the end of the month in which his death occurs, and for a period of three (3)
months thereafter. If the Employee is permanently disabled during the term of
his employment hereunder, this Agreement shall terminate and Employer shall pay
to Employee his compensation for a period of three (3) months thereafter.
Permanent disability shall mean that for a period of three (3) consecutive
months Employee is incapable of substantially fulfilling his duties because of a
medically diagnosable physical or mental condition and Employee has received a
written opinion from a licensed physician that such condition will continue
indefinitely. The compensation due pursuant to this section shall include salary
and full ownership of all stock purchase options granted Employee, but shall not
include any other benefits hereunder.
7. EFFECT OF CHANGE OF CONTROL.
In the event of a Change in Corporate Control, the vesting of any stock
options or other awards granted to the Employee shall become immediately vested
in full and, in the case of stock options, exercisable in full.
In addition, if, at any time during the period of twelve (12) consecutive
months following the occurrence of a Change in Corporate Control, the Employee
is involuntarily terminated (other than for Cause) by the Employer, the Employee
shall be entitled to receive as severance pay equal to the Employee's annual
base salary in effect at the time of the Change in Corporate Control.
For purposes of this Agreement, a "Change in Corporate Control" shall
include any of the following events:
A. The acquisition in one or more transactions of more than fifty
percent (50%) of the Employer's outstanding Common Stock by any corporation, or
other person or group (within the meaning of Section 14(d)(3) of the Securities
Exchange Act of 1934, as amended);
B. Any merger or consolidation of the Employer into or with another
corporation in which the Employer is not the surviving entity, or any transfer
or sale of substantially all of the assets of the Employer or any merger or
consolidation of the Employer into or with another corporation in which the
Employer is the surviving entity and, in connection with such merger or
consolidation, all or part of the outstanding shares of Common Stock shall be
changed into or exchanged for other stock or securities of any other person, or
cash, or any other property.
C. Any election of persons to the Employer's Board of Directors
which causes a majority of the Board of Directors to consist of persons other
than (i) persons who were members of the Board of Directors on the effective
date of this Agreement, and (ii) persons who were nominated for election as
members of the Board by the Board of Directors (or a Committee of the Board) at
a time when the majority of the Board (or of such Committee) consisted of
persons who were members of the Board of Directors on the effective date of this
Agreement; provided, that any person nominated for election by the Board of
Directors composed entirely of persons described in (i) or (ii), or of persons
who were themselves nominated by such Board, shall for this purpose be deemed to
have been nominated by a Board composed of persons described in (i).
D. Any person, or group of persons, announces a tender offer for at
least fifty percent (50%) of the Employer's Common Stock, provided, however, no
acquisition of stock by any person in a public offering or private placement of
the Employer's common stock or other transaction approved by the Employer's
Board of Directors shall be considered a Change in Corporate Control.
8. EMPLOYEE'S LOYALTY TO EMPLOYER'S INTEREST
Except as otherwise provided herein, the Employee shall devote his full
time, attention, knowledge and skill to the business and interest of the
Employer, and the Employer shall be entitled to the benefits and profits arising
from or incident to the work, services and advice of the Employee.
9. NONDISCLOSURE OF INFORMATION CONCERNING BUSINESS
During his employment, the Employee shall not disclose or make use of,
during or after the term of his employment, any trade secret or confidential
information he receives as a consequence of his employment, and not generally
known, about the Employer's products, processes, services, research,
development, marketing and merchandising, but not limited thereto. After the
term of his employment, these restrictions shall not apply to such trade secrets
or confidential information which are then in the public domain, provided that
the Employee was not responsible for such disclosure entering the public domain
without the Employer's consent. Employee agrees to sign Employer's Invention and
Disclosure Agreement, a copy of which will be attached hereto.
10. INDEMNIFICATION
The Employer agrees to defend, indemnify, and hold the Employee harmless
against and in respect of any and all losses, expenses and damages, including
reasonable attorney's fees, resulting from any material misrepresentation
contained herein, or resulting from any act of the Employer, its employees,
agents, directors or officers which may have occurred prior to the date when the
Employee begins his employment under this Agreement or the date of this
Agreement, whichever should occur later.
11. CONTRACT TERMS TO BE EXCLUSIVE
This written Agreement contains the sole and entire agreement between the
parties regarding the subject matter, and supersedes any and all other
agreements between them, which shall upon the execution hereof become null and
void. The parties acknowledge and agree that neither of them has made any
representations with respect to the subject matter of this Agreement or any
representations inducing the execution and delivery hereof, except such
representations as are specifically set forth herein, and each party
acknowledges that he or it has relied on his or its own judgment in entering in
this Agreement. The parties further acknowledge that any statements or
representations that may have heretofore been made by either of them to the
other are void and of no effect and that neither of them had relied thereon in
connection with his or its dealings with the other.
12. WAIVER OF MODIFICATION INEFFECTIVE UNLESS IN WRITING
No waiver or modification of this Agreement or any extension, covenant,
condition, or limitation herein contained shall be valid unless in writing and
duly executed by the party to be charged therewith. Furthermore, no evidence of
any waiver or modification shall be offered or received in evidence in any
proceeding, arbitration or litigation between the parties arising out of or
affecting this Agreement, or the rights or obligations of any party hereunder,
unless such waiver or modification is in writing, duly executed as aforesaid.
The provisions of this paragraph may not be waived except as herein set forth.
13. CONTRACT GOVERNED BY LAWS OF STATE OF FLORIDA
This Agreement, and performance hereunder, shall be governed by, and in
accordance with, the laws of the State of Florida.
14. BINDING EFFECT OF AGREEMENT
This Agreement shall be binding on and inure to the benefit of the
respective parties and their respective heirs, legal representatives, successors
and assigns.
15. ATTORNEY'S FEES AND COSTS
If any action at law or at equity is necessary to enforce or interpret the
terms of this Agreement, the prevailing party shall be entitled to reasonable
attorney's fees, costs and necessary disbursements in addition to any other
relief to which he or it may be entitled, either through binding arbitration or
through trial, including the appellate levels.
16. NOTICES
Any notices to be given hereunder by either party to the other may be
effected either by personal delivery in writing, evidenced by a signed receipt
from the party to whom the notice is sent, or by certified mail, postage
prepaid, with return receipt requested. Mailed notices shall be addressed to the
parties at the respective addresses appearing in the introductory paragraph of
this Agreement, but each party may change his or its address by written notice
in accordance with this paragraph. Notices delivered personally shall be deemed
communicated as of the date of the signed receipt. Mailed notices shall be
deemed communicated as of the date stated on the return receipt.
17. ASSIGNMENT
The Employee acknowledges that the services to be rendered by him are
unique and personal. Accordingly, the Employee may not assign any of his rights
under this Agreement.
18. NON-COMPETE AND NON-SOLICITATION PROVISIONS
As a means reasonably designed to protect the Employer's confidential
information and trade secrets, Employee agrees that, for a period of twenty-four
(24) months from the conclusion of his employment with Employer, Employee will
not directly, indirectly or as an agent on behalf of or in conjunction with any
person, firm, partnership, corporation or other entity, (i) engage in any
business activities which compete with the Employer in the United States or
anywhere in the world the Employer does business, (ii) hire, solicit, encourage
the resignation of or in any other manner seek to engage or employ any person
who is then, or within the prior three (3) months had been, an employee of the
Employer, whether or not for compensation and whether or not as an officer,
consultant, adviser, independent sales representative, independent contractor or
participant, or (iii) solicit, service or otherwise have any dealings related to
the industry or business or prospective industry or business in which the
Employer participates or contemplates participating in as of such conclusion,
with any person or entity with whom the Employer has a current or known
prospective business relationship or who is or was at any time during his
employment with the Employer (including any predecessor or successor entity) a
customer, vendor or client of the Employer, or a known prospective customer,
vendor or client of the Employer, provided in each case described in this clause
(iii) that such activity by Employee does or could reasonably be expected to
have a material adverse effect on the relationship between the Employer and any
such third party.
If, at any time of enforcement of this paragraph 18, a court shall hold
that the duration, scope or area restrictions stated herein are unreasonable
under circumstances then existing, the parties hereto agree that the maximum
duration, scope or area reasonable under such circumstances shall be substituted
for the stated duration, scope or area.
Employee acknowledges that the provisions contained in this paragraph 18
hereof are reasonable and necessary to protect the legitimate interests of the
Employer, that any breach or threatened breach of such provisions will result in
irreparable injury to the Employer and that the remedy at law for such breach or
threatened breach would be inadequate. Accordingly, in the event of the breach
by Employee of any of the provisions of this paragraph 18 hereof, the Employer,
in addition and as a supplement to such other rights and remedies as may exist
in its favor, may apply to any court of law or equity having jurisdiction to
enforce this Agreement, and/or may apply for injunctive relief against any act
than would violate any of the provisions of this Agreement (without being
required to post a bond). Employee further agrees that injunctive relief may be
sought for any breach or threatened breach of this paragraph 18 without a
showing of irreparable injury, in order to prevent any such breach or threatened
breach. Such right to obtain injunctive relief may be exercised, at the option
of the Employer.
19. INVALIDITY OF PROVISIONS
In case any one or more of the provisions contained in this
Agreement shall, for any reason, be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provisions of this Agreement, but this Agreement shall be construed as
if such invalid, illegal or unenforceable provision had never been contained
herein. If, moreover, any one or more of the provisions contained in this
Agreement shall for any reason be held to be excessively broad as to time,
duration, geographical scope, activity or subject, it shall be construed by
limiting and reducing it, so as to be enforceable to the greatest extent
compatible with the applicable law as it should then appear.
EMPLOYER:
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ORAGENICS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Its Chairman of the Board
EMPLOYEE
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/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
