AGREEMENT
Exhibit
10.1
AGREEMENT
AGREEMENT
made as of this 14th day of
August,
2007(the "Agreement"), by and between IR BioSciences Holdings, Inc., a Delaware
corporation (the "Company") and Xx. Xxxxxx X. Xxxxxx (the
“Director”).
WHEREAS,
the Company is engaged in the
business of developing formulations and compounds used to treat a variety of
diseases and exposure to multiple agents (the “Business”);
WHEREAS,
the Company wishes to appoint
the Director as a non-executive member of the Board of Directors of the Company
and enter into an agreement with the Director with respect to such appointment;
and
WHEREAS,
the Director wishes to accept
such appointment and to serve the Company on the terms set forth herein, and
in
accordance with, the provisions of this Agreement.
NOW,
THEREFORE, in consideration of the
mutual covenants contained herein, the parties hereto agree as
follows:
1. Position. Subject
to the terms and provisions of this Agreement, the Company shall cause the
Director to be appointed as non-executive member of the Board of Directors
(the
“Board”) to fill an existing but now vacant directorship and the Director hereby
agrees to serve the Company in that position upon the terms and conditions
hereinafter set forth, provided however, that the Director's continued service
on the Board shall be subject to any necessary approval by the Company's
stockholders.
2. Duties. During
the Directorship Term (as defined in Section 5 hereof), the Director shall
serve
as a member of the Board, and the Director shall make reasonable business
efforts to attend all Board meetings, serve on appropriate subcommittees as
reasonably requested by the Board, make himself available to the Company at
mutually convenient times and places, attend external meetings and
presentations, as appropriate and convenient, and perform such duties, services
and responsibilities and have the authority commensurate to such
position.
The
Director will use his best efforts
to promote the interests of the Company. The Company recognizes that the
Director (i) is a full-time executive employee of another entity and that his
responsibilities to such entity must have priority and (ii) sits on the Board
of
Directors of other entities and may pursue other business ventures; subject
to
the aforesaid obligations Director will use reasonable business efforts to
coordinate his respective commitments so as to fulfill his obligations to the
Company,.provided that the foregoing shall in no way limit his activities on
behalf of (i) his current employer and its affiliates or (ii) the Board of
Directors of those entities on which he sits
3. Monetary
Remuneration.
(a) Fees
and
Compensation. During the Directorship Term the Director shall receive
the same compensation and benefits, as other non-employee members of the
Board In addition, the Company and the Director agree that they
shall agree to additional monetary compensation for the Director in the event
he
performs additional functions and achieves additional milestones not set forth
herein. The Director's status during the Agreement Term shall be that
of an independent contractor and not, for any purpose, that of an employee
or
agent with authority to bind the Company in any respect. All payments and other
consideration made or provided to the Director under Sections 3 and 4 shall
be
made or provided without withholding or deduction of any kind, and the Director
shall assume sole responsibility for discharging, all tax or other obligations
associated therewith.
(b)
Expense
Reimbursements. During the Directorship Term, the Company shall
reimburse the Director for all reasonable out-of-pocket expenses including
professional and legal fees incurred by the Director in carrying out the
Director's duties, services and responsibilities under this Agreement, provided
that the Director complies with the generally applicable policies, practices
and
procedures of the Company for submission of expense reports, receipts or similar
documentation of such expenses.
4. Equity
Arrangements. Subject to the Board’s approval, the Company shall
grant the Director under the Company’s 2003 Stock Option, Deferred Stock and
Restricted Stock Plan, a non-qualified stock option (the "Option") to purchase
One Million (1,000,000) shares of common stock at an exercise price per share
equal to 85% of the Fair Market Value (as defined in the Plan) on the date
of
the grant approval to vest within 30 days pursuant to an option agreement
substantially in the form of agreement entered into by the Company and its
other
Board members (the "Option Agreement").
5. Directorship
Term. The "Directorship Term", as used in this Agreement, shall
mean the period commencing on the date hereof and terminating on the earliest
of
the following to occur:
(a)
the death of the Director
("Death");
(b)
the termination of the Director
from the position of member of the Board by the mutual agreement of the Company
and the Director;
(c)
the resignation by the Director
from the Board if after the date hereof, the chief executive officer of his
current employer determines that the Director's continued service on the
Board
conflicts with his fiduciary obligations to his current employer (a "Fiduciary
Resignation") and;
(d)
the resignation by the Director
from the Board if the board of directors or the chief executive officer of
his
current employer requires the Director to resign and such resignation is not
a
Fiduciary Resignation.
6. Director's
Representation and Acknowledgment. Based on the understanding
that the Company is currently only engaged in the Business, the Director
represents to the Company that his execution and performance of this Agreement
shall not be in violation of any agreement or obligation (whether or not
written) that he may have with or to any person or entity, including without
limitation, any prior employer. The Director hereby acknowledges and agrees
that
this Agreement (and any other agreement or obligation referred to herein) shall
be an obligation solely of the Company, and the Director shall have no recourse
whatsoever against any stockholder of the Company or any of their respective
affiliates with regard to this Agreement.
7. Director
Covenants.
(a) Unauthorized
Disclosure. The Director agrees and understands that in the
Director's position with the Company, the Director has been and will be exposed
to and receive information relating to the confidential affairs of the Company,
including but not limited to technical information, business and marketing
plans, strategies, customer information, other information concerning the
Company's products, promotions, development, financing, expansion plans,
business policies and practices, and other forms of information considered
by
the Company to be confidential and in the nature of trade secrets. The Director
agrees that during the Directorship Term and thereafter, the Director will
keep
such information confidential and will not disclose such information, either
directly or indirectly, to any third person or entity without the prior written
consent of the Company; provided, however, that (i) the Director shall have
no
such obligation to the extent such information is or becomes publicly known
or
generally known in the Company's industry other than as a result of the
Director's breach of his obligations hereunder and (ii) the Director may, after
giving prior notice to the Company to the extent practicable under the
circumstances, disclose such information to the extent required by applicable
laws or governmental regulations or judicial or regulatory process. This
confidentiality covenant has no temporal, geographical or territorial
restriction. Upon termination of the Directorship Term, the Director will
promptly return to the Company all property, keys, notes, memoranda, writings,
lists, files, reports, customer lists, correspondence, tapes, disks, cards,
surveys, maps, logs, machines, technical data or any other tangible product
or
document which has been produced by, received by or otherwise submitted to
the
Director in the course or otherwise as a result of the Director's position
with
the Company during or prior to the Directorship Term, provided that, the Company
shall retain such materials and make them available to the Director if requested
by him in connection with any litigation against the Director under
circumstances in which (i) the Director demonstrates to the reasonable
satisfaction of the Company that the materials are necessary to his defense
in
the litigation, and (ii) the confidentiality of the materials is preserved
to
the reasonable satisfaction of the Company.
(b) Non-Solicitation. During
the Noncompetition Term, the Director shall not interfere with the Company's
relationship with, or endeavor to entice away from the Company, any person
who,
on the date of the termination of the Directorship Term, was an employee or
customer of the Company or otherwise had a material business relationship with
the Company.
(c) Remedies. The
Director agrees that any breach of the terms of this Section 7 would result
in
irreparable injury and damage to the Company for which the Company would have
no
adequate remedy at law; the Director therefore also agrees that in the event
of
said breach or any threat of breach, the Company shall be entitled to an
immediate injunction and restraining order to prevent such breach and/or
threatened breach and/or continued breach by the Director and/or any and all
entities acting for and/or with the Director, without having to prove damages,
in addition to any other remedies to which the Company may be entitled at law
or
in equity. The terms of this paragraph shall not prevent the Company from
pursuing any other available remedies for any breach or threatened breach
hereof, including but not limited to the recovery of damages from the Director.
The Director acknowledges that the Company would not have entered into this
Agreement had the Director not agreed to the provisions of this Section
7.
The
provisions of this Section 7 shall survive any termination of the Directorship
Term, and the existence of any claim or cause of action by the Director against
the Company, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by the Company of the covenants and
agreements of this Section 7.
8. Indemnification. The
Company agrees to indemnify the Director for his activities as a director of
the
Company to the fullest extent permitted by law, and to cover the Director under
any directors and officers liability insurance obtained by the
Company. Further, the Company and the Director agree to enter into an
indemnification agreement substantially in the form of agreement entered into
by
the Company and its other Board members.
9. Non-Waiver
of Rights. The failure to enforce at any time the provisions of
this Agreement or to require at any time performance by the other party of
any
of the provisions hereof shall in no way be construed to be a waiver of such
provisions or to affect either the validity of this Agreement or any part
hereof, or the right of either party to enforce each and every provision in
accordance with its terms. No waiver by either party hereto of any breach by
the
other party hereto of any provision of this Agreement to be performed by such
other party shall be deemed a waiver of similar or dissimilar provisions at
that
time or at any prior or subsequent time.
10. Notices. Every
notice relating to this Agreement shall be in writing and shall be given by
personal delivery or by registered or certified mail, postage prepaid, return
receipt requested; to:
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If
to the Company:
IR
BioSciences Holdings,
Inc.
0000
X. 00xx Xxxxxx,
Xxxxx
000
Xxxxxxxxxx,
Xxxxxxx 00000
Telephone: (000)
000-0000
Attention: Xxxxxxxx
X.
Xxxxxxx, Corporate Secretary
with
a copy to:
Xxxxxxxxxxx
&
Xxxxxxxx
Xxxxxxxxx
Xxxxxxx Xxxxx Xxxxx LLP
00000
Xxxxx Xxxxxx Xxxx., 0xx Xxxxx
Xxx
Xxxxxxx,
Xxxxxxxxxx 00000
Telephone: (000)
000-0000
Attention: Xxxxxx
X.
Xxxxxxx, Esq.
If
to the Director:
Xxxxxx
X. Xxxxxx
with
a copy to:
___________________________
___________________________
___________________________
___________________________
Either
of the parties hereto may change
their address for purposes of notice hereunder by giving notice in writing
to
such other party pursuant to this Section 10.
11. Binding
Effect/Assignment. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective heirs, executors,
personal representatives, estates, successors (including, without limitation,
by
way of merger) and assigns. Notwithstanding the provisions of the immediately
preceding sentence, neither the Director nor the Company shall assign all or
any
portion of this Agreement without the prior written consent of the other
party.
12. Entire
Agreement. This Agreement (together with the other agreements
referred to herein) sets forth the entire understanding of the parties hereto
with respect to the subject matter hereof and supersedes all prior agreements,
written or oral, between them as to such subject matter.
13. Severability. If
any provision of this Agreement, or any application thereof to any
circumstances, is invalid, in whole or in part, such provision or application
shall to that extent be severable and shall not affect other provisions or
applications of this Agreement.
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14. Governing
Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Delaware, without reference
to
the principles of conflict of laws. All actions and proceedings arising out
of
or relating to this Agreement shall be heard and determined in any Delaware
state or federal court and the parties hereto hereby consent to the jurisdiction
of such courts in any such action or proceeding; provided, however, that neither
party shall commence any such action or proceeding unless prior thereto the
parties have in good faith attempted to resolve the claim, dispute or cause
of
action which is the subject of such action or proceeding through mediation
by an
independent third party.
15. Legal
Fees. The parties hereto agree that the non-prevailing party in
any dispute, claim, action or proceeding between the parties hereto arising
out
of or relating to the terms and conditions of this Agreement or any provision
thereof (a "Dispute"), shall reimburse the prevailing party for reasonable
attorney's fees and expenses incurred by the prevailing party in connection
with
such Dispute; provided, however, that the Director shall only be required to
reimburse the Company for its fees and expenses incurred in connection with
a
Dispute, if the Director's position in such Dispute was found by the court,
arbitrator or other person or entity presiding over such Dispute to be frivolous
or advanced not in good faith.
16. Modifications. Neither
this Agreement nor any provision hereof may be modified, altered, amended or
waived except by an instrument in writing duly signed by the party to be
charged.
17. Tense
and Headings. Whenever any words used herein are in the singular
form, they shall be construed as though they were also used in the plural form
in all cases where they would so apply. The headings contained herein are solely
for the purposes of reference, are not part of this Agreement and shall not
in
any way affect the meaning or interpretation of this Agreement.
18. Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed to be an original but all of which together shall constitute one and
the
same instrument.
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of this page intentionally left blank)
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IN
WITNESS WHEREOF, the Company has caused this Agreement to be executed by
authority of its Board of Directors, and the Director has hereunto set his
hand,
on the day and year first above written.
| IR BIOSCIENCES HOLDINGS, INC. | |||
|
By:
|
/s/ Xxxxxxx X. Xxxxxxx | ||
| Xxxxxxx X. Xxxxxxx | |||
| President | |||
| DIRECTOR | |||
|
|
By:
|
/s/
Xx. Xxxxxx X.
Xxxxxx
|
|
| Xx. Xxxxxx X. Xxxxxx | |||
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