EXHIBIT 10.1(b)
October 1, 1996
Xxxxxx X. Xxxxx
Number One
Castledawson
Sion Hill, Blackrock
Co Dublin, Ireland
Dear Xxxxxx,
This letter will confirm our offer of continued employment with American
Biogenetic Sciences, Inc. ("Company") and supersedes all prior agreements,
understandings and arrangements between Xxxxxx X. Xxxxx ("Employee") and the
Company relating to such employment. The parties agree as follows:
1. Retention of Services: The Company hereby retains the services of
Employee, and Employee agrees to furnish such services in Dublin, Ireland, upon
the terms and conditions hereinafter set forth.
2. Term: The term of this Agreement shall be for a period of five (5) years
commencing October 1, 1996 and automatically terminating on September 30, 2001
subject to earlier termination as provided herein or unless extended by mutual
consent of both parties in writing sixty (60) days prior to the end of the term
of this Agreement or any extension thereof. Nothing herein shall require the
Company or the Employee to agree to any specific term or condition or to any
continuation of Employee's employment beyond September 30, 2001.
3. Employment: Subject to the terms and conditions and for the compensation
hereinafter set forth, the Company employs the Employee for and during the term
of this Agreement. Employee is hereby employed by the Company, her powers and
duties of an executive nature shall be determined only by the Chairman of the
Board or the Board of Directors or their duly authorized designee, from time to
time; and the Employee does hereby accept such employment and agrees to use her
best efforts and to devote all her normal business time, during the term of this
Agreement, to the performance of her duties faithfully, diligently and to the
best of her abilities upon the conditions hereinafter set forth. Employee shall
report to the Chairman of the Board and Board of Directors (collectively
hereinafter referred to as the "Board") of the Company.
4. Compensation: During the term of this Agreement, the Company agrees to
pay Employee, and Employee agrees to accept, an annual gross compensation of
Eighteen Thousand and Two Thousand Dollars (US$18,200.) and Fifty Thousand Irish
Pounds (-50,000) per year, for all services rendered by Employee hereunder
including being a Director of the Company which may be increased from time to
time by the Compensation Committee of the Board of Directors.
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5. Expenses: The Company shall reimburse Employee, not less often than
monthly, for all reasonable and actual business expenses incurred by her in
connection with her service to the Company, upon submission by Employee of
appropriate vouchers and expense account reports.
6. Benefits: In addition to the compensation to be paid to Employee
hereunder, the Company shall continue to provide medical insurance in accordance
with the Company's Plan(s). The Employee shall be entitled to a four (4) weeks
annual vacation. The Company shall maintain a life insurance policy for
Employee's beneficiary for One Hundred Thousand Irish Pounds.
7. Employee Covenant: The "Employee's Confidentiality and Non-Competition
Agreement" with the Company dated January 6, 1985 is in full force and effect,
and is incorporated herein by reference as if fully set forth herein.
8. Return of Company Property: Employee agrees that following the
termination of her employment for any reason, she shall return all property of
the Company which is then in or thereafter comes into her possession, including,
but not limited to, documents, contracts, agreements, plans, photographs, books,
notes, electronically stored data and all copies of the foregoing as well as any
other materials or equipment supplied by the Company to the Employee.
9. Termination:
[A] Death: In the event of the Employee's death during the term of her
employment, this Agreement shall automatically terminate on the date of death,
and Employee's estate shall be entitled to payment of Employee's compensation
until date of death.
[B] Disability: In the event the Employee, by reason of physical or mental
incapacity, shall be disabled for a period of at least two (2) consecutive
months in any of the years of this Agreement or any extension hereof, the
Company shall have the option at any time thereafter, to terminate Employee's
employment and to terminate this Agreement; such termination to be effective ten
(10) days after the Company gives written notice of such termination to the
Employee, and all obligations of the Company hereunder shall cease upon the date
of such termination. "Incapacity" as used herein shall mean the inability of the
Employee to perform her normal duties as an executive officer of the Company.
[C] Company's Rights To Terminate This Agreement:
[a] The Company shall have the right, before the expiration of the
term of this Agreement, to terminate this Agreement and to discharge Employee
for cause (hereinafter "Cause"), and all compensation to Employee shall cease to
accrue upon discharge of the Employee for Cause. For the purposes of this
Agreement, the term "Cause" shall mean the Employee's (i) violation of the
Company's written policy or specific written directions of the Chairman of the
Board which directions are consistent with normally acceptable business
practices or the failure to observe, or the failure or refusal to perform any
obligations required to be performed in accordance with this Agreement. (ii)
admission or conviction of a serious crime involving moral turpitude or (iii) if
the Chairman of the Board determines that employee has committed a demonstrable
act (or omission) of malfeasance seriously detrimental to this Company (which
shall not include any exercise of business judgment in good faith).
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[b] If the Company, elects to terminate Employee's employment for
Cause, under Section 9[C][a](i), the Company shall first give Employee written
notice and a period of thirty (30) days to cure such Cause, and if such Cause is
not cured in said thirty (30) days, such termination shall be effective five (5)
days after the Company gives written notice of such termination to the Employee.
In the event of a termination of the Employee's employment for Cause in
accordance with the provisions of Section 9[C][a](i), (ii) or (iii), the Company
shall have no further obligation to the Employee, except for the payment of
compensation through the date of such termination from employment.
10. Waiver: Any waiver by either party of a breach of any provision of this
Agreement shall not operate as or be construed as a waiver of any other breach
or default hereof.
11. Governing Law: The validity of this Agreement or of any of the
provisions hereof shall be determined under and according to the laws of the
State of New York, and this Agreement and its provisions shall be construed
according to the laws of the State of New York without reference to its choice
of law rules.
12. Notice: Any notice required to be given pursuant to the provisions of
this Agreement shall be in writing and by registered or certified mail and
mailed to the following addresses:
Company: American Biogenetic Sciences, Inc.
0000 Xxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx
Chairman and CEO
Employee: Xxxxxx X. Xxxxx
Number One
Castledawson
Sion Hill, Blackrock
Co Dublin, Ireland
13. Assignment: The Employee's assignment of this Agreement or any interest
herein, or any monies due or to become due by reason of the terms hereof,
without the prior written consent of the Company shall be void. This Agreement
shall be binding upon the Company, its successors (including any transferee of
the good will of the Company) or assigns.
14. Prior Agreements Superseded: This Agreement supersedes any employment
agreements, oral or written, entered into between Employee and the Company prior
to the date of this Agreement.
15. Miscellaneous: This Agreement contains the entire understanding between
the parties hereto and supersedes all other oral and written agreements or
understandings between them. No modification or addition hereto or waiver or
cancellation of any provision shall be valid except by a writing signed by the
party to be charged therewith.
16. Obligations of a Continuing Nature: It is expressly understood and
agreed that the covenants, agreements and restrictions undertaken by or imposed
on Employee hereunder, which are stated to exist or continue after termination
of Employee's employment with the Company, shall exist and continue irrespective
of the method or circumstances of such termination from employment or
termination of this Agreement.
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17. Severability: Employee agrees that if any of the covenants, agreements
or restrictions on the part of Employee are held to be invalid by any court of
competent jurisdiction, such holding will not invalidate any of the other
covenants, agreements and/or restrictions herein contained and such invalid
provisions shall be severable so that the invalidity of any such provision shall
not invalidate any others. Moreover, if any one or more of the provisions
contained in this Agreement shall be held to be excessively broad as to
duration, activity or subject, such provisions shall be construed by limiting
and reducing them so as to be enforceable to the maximum extent allowed by
applicable law.
18. Descriptive Headings. The paragraphs headings contained herein are for
reference purposes only and shall not in any affect the meaning or
interpretation of this Agreement.
If the foregoing is in accordance with your understanding of the agreement
between us, will you kindly signify same by signing this Agreement in the space
provided below.
Sincerely,
AMERICAN BIOGENETIC SCIENCES, INC.
/s/Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Chairman of the Board
AGREED AND ACCEPTED
as of the above date
/s/Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
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