Employment Agreement
Exhibit
10.02
EMPLOYMENT AGREEMENT (“Agreement”),
dated as of February 1, 2008 (the "Effective Date") is by and between BioXcell
Incorporated, a Massachusetts corporation with offices at 000 Xxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxxxxx 00000 (the "Company"), and Xxxxxxxx X. Xxxxxxx residing
at 000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000 (“Executive”).
RECITALS
The Company desires to engage Executive
as Chief Operating Officer of the Company and Executive desires to perform such
services, on the terms and conditions hereinafter set forth in this
Agreement.
NOW
THEREFORE, in consideration of the premises and mutual and dependent promises
set forth herein, the parties agree as follows:
AGREEMENT
1. Term. The
Company agrees to employ Executive, and Executive agrees to serve as Chief
Operating Officer, on the terms and conditions set forth in this Agreement for a
period of three years commencing on the date hereof and ending on February 1,
2011, or such shorter period as may be provided for herein. After
such initial three-year period, this Agreement shall automatically renew for
successive one-year terms unless either party notifies the other of non-renewal
at least ninety (90) days prior to the expiration of the then current
term. The "Employment Period" is the initial three-year period and
any renewals thereof, unless terminated earlier.
2. Duties and
Services. The Company will engage Executive as its Chief
Operating Officer and Executive will serve in such capacity. If
requested by the Company, Executive will also serve on the Company's Board of
Directors. Executive shall report to the Board of Directors and will
have such duties and responsibilities as may be assigned to him by the Board of
Directors. Executive agrees to this employment and agrees to devote
his best efforts and all of his working time and efforts to the performance of
his duties under this Agreement. Executive shall perform his duties
faithfully, diligently and completely and in a manner consistent with the
policies of the Company. Executive may continue to participate in
professional associations and serve on the Board of Directors of other companies
and organizations so long as such participation and service do not interfere
with his duties under this Agreement. Except for such activity during
the Employment Period, Executive shall not engage in any other employment,
occupation or consulting activity for any direct or indirect remuneration
without the Board’s prior approval.
|
3.
|
Compensation and Other
Benefits.
|
(a) As
consideration for his services hereunder, the Company will pay Executive a base
salary of $175,000 per year (the "Base Salary"). Payment of Base
Salary shall be made in accordance with the Company's normal payroll
practices.
(b) The
Board will review Executive's Base Salary annually. Upon such review,
the Board may adjust upward Executive's Base Salary as it deems appropriate,
taking into account Executive's performance as well as economic conditions,
competitive conditions within the Company's industry, and the financial
condition, operations, and prospects of the Company. In no event may
the Company reduce Executive's Base Salary without his consent. The
annual review will be completed prior to the end of each year of the Employment
Term and any salary adjustment shall be effective on the first day of the
immediately succeeding year of the Employment Term.
(c) Executive
may participate in all group health and insurance programs and all other fringe
benefit, retirement, or additional compensation plans for which he qualifies
which the Company now or in the future, in its sole discretion, makes available
to its employees generally. This paragraph does not obligate the
Company to establish or maintain any such program or otherwise to pay any such
additional compensation.
(d) Executive
will have 4 weeks of vacation per year to be taken in accordance with the
Company's policies in effect from time to time for senior management of the
Company.
(e) Subject
to the Company’s financial condition, the Company will provide Executive with a
private office, administrative support and other facilities and services as are
suitable to the character of Executive’s position and necessary for the
performance of his duties.
1
4. Expenses. Company
will reimburse Executive for all reasonable travel and out-of-pocket expenses
necessarily incurred in the performance of his duties upon submission and
approval of written statements and bills in accordance with the then regular
procedures of the Company. The Company will similarly reimburse
Executive for membership dues, professional publications, meeting registration
fees and reasonable travel expenses related to his participation in professional
associations reasonably related to the business of the Company.
5. Representations and
Warranties of Executive. Executive represents and warrants to
the Company that (a) Executive is under no contractual or other restriction or
obligation which is inconsistent with the execution of this Agreement, the
performance of his duties hereunder, or the other rights of the Company
hereunder and (b) Executive is under no physical or mental disability that would
hinder his performance of duties under this Agreement.
6. Non-Competition.
In view of the unique and valuable services it is expected Executive will
render to the Company, and the knowledge of the technology, trade secrets, and
other proprietary information relating to the business of the Company and its
clients and suppliers that it is expected Executive will obtain, and in
consideration of the compensation to be received hereunder, Executive agrees
that during the Employment Period and thereafter until the first anniversary of
the termination of the Employment Period, he will not, anywhere in the world,
directly or indirectly, for his own benefit or for, with, or through any other
person, firm, or
corporation, a) own, manage, operate,
control, loan money to,
or participate in the ownership, management,
operation, or control of, or be connected as a director, officer, employee,
partner, consultant, agent, independent contractor, or otherwise with, or
acquiesce in the use of his name by, any person,
corporation, organization or other business
entity that is engaged in the business of
developing,
manufacturing, selling or providing human infertility treatments or products or
is otherwise engaged in a business similar to any business of the Company; b)
reveal the name of, solicit or interfere with, or endeavor to entice away from
the Company any of its suppliers, clients, or employees; or c) employ any person
who was an employee of the Company within a period of one year after such person
leaves the employ of the Company, provided, however, that the provisions of this
Section 7 will not be deemed breached merely because Executive owns not more
than 1% of the outstanding common stock of a corporation that is registered
under the Securities Exchange Act of 1934, as amended. Executive
agrees that the provisions of this Section 7 are necessary and reasonable to
protect the Company in the conduct of its business. If any
restriction contained in this Section 7 is deemed to be invalid, illegal, or
unenforceable by reason of the extent, duration, or geographical scope hereof,
or otherwise, then the court making such determination has the right to reduce
the extent, duration, geographical scope, or other provisions hereof as may be
necessary to comply with and be enforceable under applicable law, and the
restriction, in its reduced form, shall be enforceable in the manner
contemplated hereby. As used in this Section 7, "Company" shall
include the Company and its direct and indirect subsidiaries.
7. Termination.
(a) This
Agreement shall terminate:
|
1.
|
upon
the death or permanent disability of
Executive;
|
|
2.
|
ninety
(90) days after notice by either party to the other party under Section 1
of a decision not to extend the Employment
Period;
|
|
3.
|
ninety
(90) days after notice by either party to the other party of the notifying
party’s election to voluntarily terminate this Agreement without claim of
breach or cause;
|
|
4.
|
thirty
(30) days after notice by Executive to the Company of a breach of a
material term of this Agreement which is not corrected by the Company
within such period;
|
|
5.
|
immediately
upon notice by the Company to Executive of a termination for
cause.
|
2
“Cause”
as used in this Agreement shall be defined as:
|
a.
|
commission
of any criminal, illegal or unethical act in the performance of
Executive’s duties;
|
|
b.
|
commission
of any tortuous act in the performance of Executive’s
duties;
|
|
c.
|
misappropriation
or misuse of Company funds or
property;
|
|
d.
|
falsification
of any Company records or reports;
|
|
e.
|
habitual
use of drugs or alcohol to the extent it impairs Executive’s ability to
properly perform his duties;
|
|
f.
|
violation
by Executive of his obligations to the Company, including without
limitation, conduct which is inconsistent with his position and which
results, or is reasonably likely to result, in a material adverse effect
on the business or reputation of the Company;
or
|
|
g.
|
any
other breach of a material term of this Agreement by
Executive.
|
(b) If the
employment of Executive is terminated for cause, the Company shall not be
obligated to make any further payment to Executive, other than accrued and
unpaid Base Salary, unpaid expenses, accrued and unused vacation time, and any
other benefits that have accrued pursuant to any plan or by law through the date
of termination.
(c) If
Executive shall die, this Agreement shall terminate on the date of Executive’s
death and Executive’s estate shall be entitled to receive Executive’s accrued
and unpaid Base Salary, unpaid expenses, accrued and unused vacation time,
vested stock and stock options and any other benefits that have accrued pursuant
to any plan or by law, through the date of death.
(d) If, as
the result of any physical or mental disability, the Executive shall have failed
or is unable to perform his essential job functions for a period of sixty (60)
consecutive days, the Company may, by providing seven (7) days notice to the
Executive subsequent thereto, terminate his employment under this Agreement as
of the seventh day after the notice. Upon termination pursuant to his
section, the Company will pay the Executive.
|
(i)
|
his
unpaid expenses to the date of
termination;
|
|
(ii)
|
his
accrued and unpaid vacation and any other benefits that have accrued
pursuant to any plan or by law through the date of termination;
and
|
|
(iii)
|
his
Base Salary for a period of six (6) months. Salary payments
made to Executive while disabled shall be reduced by any disability
insurance payments Executive received during such period of
disability.
|
(e) If the
Company terminates this Agreement by deciding not to extend the Employment
Period or Executive terminates this Agreement due to a breach of a material term
by the Company, the Company will continue to pay Executive his Base Salary and
continue to provide Executive the same group medical, hospitalization, dental,
life insurance and disability benefits provided to all employees of the Company
(collectively “Group Benefits”) for a period of twelve (12)
months provided that the Group Benefits will cease upon Executive commencing
employment with another company or providing another company consulting services
on a substantially full time basis.
(f) If
Executive terminates this Agreement by deciding not to extend the Employment
Period or if Executive voluntarily terminates this Agreement without claim of
any breach by the Company of a material term of this Agreement, the Company
shall not be obligated to make any further payment to Executive, after
termination, other than accrued and unpaid Base Salary, unpaid expenses, and
accrued and unpaid vacation time and other benefits that have accrued pursuant
to any plan or by law, through the date of termination.
3
8. Patents,
etc. Any interest in patents, patent applications, inventions,
technological innovations, copyrights, copyrightable works, developments,
discoveries, designs, and processes that Executive may own, conceive of, or
develop either relating to the fields in which the Company may then be engaged
or contemplate (as demonstrated by the records of the Company) being engaged or
conceived of or developed utilizing the time, materials, facilities, or
information of the Company ("Inventions") shall belong to the
Company. As soon as Executive owns, conceives of, or develops any
Invention: (i) he shall immediately communicate such fact in writing to the
Secretary of the Company; (ii) upon request of the Company, execute all such
assignments and other documents (including applications for patents, copyrights,
trademarks, and assignments thereof) and, (iii) without further compensation,
but at the Company's expense, take all such other action as the Company may
reasonably request in order: (a) to vest in the Company all of Executive's
right, title, and interest in and to such Inventions, free and clear of any
liens, mortgages, security interests, pledges, charges, and encumbrances and (b)
if patentable or copyrightable, to obtain patents or copyrights (including
extensions and renewals) therefor in any and all countries in such name as the
Company shall determine. As used in this Section 9, "Company" shall
include the Company and its direct and indirect subsidiaries.
9. Confidential
Information. Executive acknowledges that the information,
observations and data obtained by him while employed by or consulting for the
Company pursuant to this Agreement concerning the business or affairs of the
Company ("Confidential Information") are the property of the
Company. Executive agrees that he will not disclose to any
unauthorized person or use for any purpose whatsoever other than the performance
of his employment duties any Confidential Information without the prior written
consent of the Board of Directors of the Company unless and except to the extent
that the aforementioned matters become generally known to and available for use
by the public other than as a result of Executive's acts or omissions to
act. If Executive receives a legal process, he may comply with it
provided he promptly notifies the Company and cooperates with the Company in
obtaining a protective order. Executive shall deliver to the Company
at the termination of his employment, or at any other time the Company may
request, all memoranda, notes, plans, records, reports, computer discs, tapes
and software and other documents and data and copies thereof relating to the
Confidential Information, the work product or the business of the Company which
he may then possess or have under his control. As used in this
Section 10, "Company" includes the Company, and its direct and indirect
subsidiaries.
10. Injunctive
Relief. The parties agree that money damages cannot adequately
compensate the Company for Executive’s breach of
the provisions of Section 7
or Section 10. Therefore,
the Company is entitled, in addition to any other available right and remedy to
an injunction restraining any breach or a threatened breach, and in either case
the Company will not have to post a bond or other security in connection
therewith.
11. Insurance and
Indemnification. As an officer of the Company, Executive shall be
indemnified by the Company to the fullest extent permitted by the laws of the
Commonwealth of Massachusetts and shall be included in any director and officer
liability policy obtained by the Company.
12. Survival. The
covenants, agreements, representations, and warranties contained in or made
pursuant to this Agreement shall survive Executive's termination of employment
as provided herein.
13. Entire Agreement;
Modification. This Agreement sets forth the entire
understanding of the parties with respect to the subject matter hereof,
supersedes all existing agreements between them concerning such subject matter,
and may be modified only by a written instrument duly executed by each
party.
14. Notices. Any
notice or other communication required or permitted to be given hereunder shall
be in writing and shall be mailed by certified mail, return receipt requested,
or delivered against receipt to the party to whom it is to be given at the
address of such party set forth in the preamble to this Agreement (or to such
other address as the party shall have furnished in writing in accordance with
the provisions of this Section 15). Notice to the estate of Executive
shall be sufficient if addressed to Executive as provided in this Section
15. Any notice or other communication given by certified mail shall
be deemed given three days after the time of certification thereof, except for a
notice changing a party's address which shall be deemed given at the time of
receipt thereof.
15. Waiver. Any
waiver by either party of a breach of any provision of this Agreement shall not
operate as, or be construed to be, a waiver of any other breach of such
provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict adherence to
any term of this Agreement on one or more occasions shall not be considered a
waiver or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement. Any
waiver must be in writing, signed by the party giving such waiver.
16. Binding
Effect. Executive's rights and obligations under this
Agreement shall not be transferable by assignment or otherwise, and such rights
shall not be subject to encumbrance or the claims of Executive's creditors, and
any attempt to do any of the foregoing shall be void. The provisions
of this Agreement shall be binding upon and inure to the benefit of Executive
and her heirs and personal representatives, and shall be binding upon and inure
to the benefit of the Company and its successors.
17. No Third Party
Beneficiaries. This Agreement does not create, and shall not
be construed as creating, any rights enforceable by any person not a party to
this Agreement (except as provided in Section 17).
4
18. Headings. The
headings in this Agreement are solely for the convenience of reference and shall
be given no effect in the construction or interpretation of this
Agreement.
19. Counterparts; Governing
Law. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. It shall be
governed by and construed in accordance with the laws of the Commonwealth of
Massachusetts, without giving effect to the conflict of laws provisions
thereof.
21. Arbitration. Any
dispute under this Agreement or any dispute arising out of the Executive’s
employment or termination of employment shall be submitted to binding
arbitration subject to the rules of the American Arbitration Association in
Boston, Massachusetts. The Executive and the Company shall each bear
his/its own attorney fees and costs and shall share equally in the costs of the
arbitration. However, nothing in this section shall preclude the
Company from seeking injunctive relief for a violation of Section 7 or Section
10.
IN
WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
first above written.
BIOXCELL
INCORPORATED
By: /s/ Xxxxxx
Xxxxxx
Name: Xx.
Xxxxxx Xxxxxx
Title:
Chief Technical Officer, Founder and President,
By:
/s/ Xxxxxxxx
Xxxxxxx
Name: Xxxxxxxx X. Xxxxxxx
Title: Chief Operating Officer
5
