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EXHIBIT 10.24
EXECUTION COPY
EMPLOYMENT AGREEMENT
THIS IS AN EMPLOYMENT AGREEMENT (the "Agreement") dated as of
May 5, 1995 (the "Execution Date") and effective March 29, 1995, among Zynaxis,
Inc., a Pennsylvania corporation (the "Company") and Xxxxxx X. Xxxxxxxxx
("Employee").
BACKGROUND
The Company and Employee are parties to the Employment
Agrement dated as of April 2, 1993 (the "1993 Agreement"). The Company and
Employee desire to enter into a new Employment Agreement upon the terms and
conditions set forth herein.
NOW, THEREFORE, the parties hereto, intending to be legally
bound, agree as follows:
TERMS
1. EMPLOYMENT. The Company hereby employs Employee, and Employee
hereby accepts such employment and agrees to perform his duties and
responsibilities hereunder, in accordance with the terms and conditions
hereinafter set forth.
1.1. EMPLOYMENT TERM. The term of Employee's employment under this
Agreement (the "Employment Term") shall be for a period of two years commencing
March 29, 1995 and ending on March 29, 1997, unless terminated prior thereto in
accordance with Section 8 hereof or extended in accordance with the following
sentence. This Agreement shall automatically extend for successive one-year
terms, subject to the termination provisions of Section 8 hereof, unless
written notice of nonextension is given by either party to the other at least
sixty days prior to the end of the Employment Term. The parties hereto agree
that this Agreement is entered into in lieu of an automatic extension of the
1993 Agreement, and that the 1993 Agreement is terminated effective as of March
29, 1995.
1.2. DUTIES AND RESPONSIBILITIES.
1.2.1 During the Employment Term, Employee shall serve as
Chairman of the Board, President and Chief Executive Officer of the Company and
shall perform all duties and accept all responsibilities incidental to such
position or as may be assigned to him by the Company's board of directors, and
he shall cooperate fully with the board of directors and other executive
officers of the Company and its affiliates. During the Employment Term,
Employee shall also be available to assist affiliates of the Company.
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1.2.2 Employee represents to the Company that he is not
subject or a party to any employment agreement, non-competition covenant,
non-disclosure agreement or other agreement, covenant, understanding or
restriction which would prohibit Employee from executing this Agreement and
performing fully his duties and responsibilities hereunder, or which would in
any manner, directly or indirectly, limit or affect the duties and
responsibilities which may now or in the future be assigned to Employee by the
Company or the scope of assistance to which he may now or in the future provide
to affiliates of the Company, including without limitation duties and
responsibilities relating to the research, development, production,
manufacture, sale, licensing, marketing or distribution of (i) cell linker
molecules for the delivery to and retention at disease sites of therapeutic
drugs and radiopharmaceuticals, or (ii) oral delivery of vaccines
(collectively, the "Field").
1.2.3 Employee shall at all times comply with policies and
procedures adopted by the Company for its employees, including without
limitation any procedures and policies adopted by the Company regarding
conflicts of interest.
1.3. EXTENT OF SERVICE. During the Employment Term, Employee
agrees to use his best efforts to carry out his duties and responsibilities
under Section 1.2 hereof and to devote his full time, attention and energy
thereto. Except as provided in Section 5 hereof, the foregoing shall not be
construed as preventing Employee from making investments in other businesses or
enterprises, provided that Employee agrees not to become engaged in any other
business activity which may interfere with his ability to discharge his duties
and responsibilities to the Company. Employee further agrees not to work
either on a part time or independent contracting basis for any other business
or enterprise during the Employment Term, or to accept any directorships of
companies other than his current position as a director of Cephalon, Inc.,
IBAH, Inc., Creative Biomolecules, Inc. and Genset S.A.
1.4. BASE COMPENSATION. For all the services rendered by Employee
hereunder, the Company shall pay Employee an annual salary at the rate of
$214,000 (the "Base Compensation") for each full year of the Employment Term,
plus such additional amounts, if any, as may be approved by the Company's board
of directors or its Compensation and Stock Option Committee (the "Committee"),
less withholding required by law or agreed to by Employee, payable in
installments at such times as the Company customarily pays its other senior
officers (but in any event no less often than monthly). The Company agrees
that Employee's salary will be reviewed at least annually by the Company's
board of directors or the Committee to determine if an increase is appropriate,
which increase shall be in the sole discretion of the Company's board of
directors or the Committee.
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1.5. BENEFITS. During the Employment Term, Employee shall also be
entitled to participate in such vacation pay and other fringe benefit plans, if
any, as may be authorized from time to time by the board of directors or the
Committee in its sole discretion for senior officers of the Company.
1.6. INCENTIVE COMPENSATION. In addition to the compensation set
forth in Section 1.4 hereof, Employee shall be entitled to participate in such
incentive compensation or bonus plans, if any, as may be established from time
to time in respect of each complete fiscal year during the Employment Term by
the Company's board of directors or the Committee in its sole discretion, the
terms and provisions of which shall also be in the sole discretion of the
Company's board of directors or the Committee. Notwithstanding the foregoing,
it is understood that for the first twelve months of the Employment Term,
Employee will be entitled to receive a bonus of up to $50,000, based upon
accomplishment during such period of milestones significant to the progress of
the Company to be mutually agreed upon by Employee and the Company's board of
directors or the Committee within 60 days after the Execution Date, and
conditioned upon Employee being continuously employed by the Company during
such period.
1.7. STOCK OPTIONS. In consideration for Employee's execution of
this Agreement, the Committee has granted to Employee, as of the Execution
Date, subject to the execution and delivery of this Agreement, an option to
purchase 370,000 shares of Common Stock of the Company. The option shall be
exercisable at the rate of 20% of the option on the first anniversary date of
the Execution Date, and an additional 20% of the option on each of the next
four anniversary dates of the Execution Date, subject, however, to the vesting
of an additional 20,000 shares in the event of a termination by the Company
after the first anniversary date of the Execution Date pursuant to Section 8.4
hereof. The grant has been made pursuant to the Zynaxis, Inc. Amended and
Restated 1989 Stock Option Plan and a stock option agreement in the form used
generally by the Company, a copy of which is attached hereto as Exhibit A. The
exercise price of the option is equal to the closing price of the Company's
common stock the Execution Date, and the term of the stock option is seven
years. The option shall be an incentive stock option to the extent provided in
the stock option agreement.
2. EXPENSES. The Company shall reimburse Employee on a timely
basis for all ordinary and necessary out-of-pocket business expenses incurred
in connection with the discharge of his duties and responsibilities hereunder
during the Employment Term in accordance with the Company's expense approval
procedures then in effect and upon presentation to the Company of an itemized
account and written proof of such expenses.
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3. DEVELOPMENTS. All developments, including inventions, whether
patentable or otherwise, trade secrets, discoveries, improvements, ideas and
writings which either directly or indirectly relate to or may be useful in the
business of the Company or any of its affiliates (the "Developments") which
Employee, either by himself or in conjunction with any other person or persons,
shall conceive, make, develop, acquire or acquire knowledge of during the
Employment Term or at any time thereafter during which he is employed by the
Company, shall become and remain the sole and exclusive property of the
Company. Employee hereby assigns, transfers and conveys, and agrees to so
assign, transfer and convey, all of his right, title and interest in and to any
and all such Developments and to disclose fully as soon as practicable, in
writing, all such Developments to the board of directors of the Company. At
any time and from time to time, upon the request and at the expense of the
Company, Employee will execute and deliver any and all instruments, documents
and papers, give evidence and do any and all other acts which, in the opinion
of counsel for the Company, are or may be necessary or desirable to document
such transfer or to enable the Company to file and prosecute applications for
and to acquire, maintain and enforce any and all patents, trademark
registrations or copyrights under United States or foreign law with respect to
any such Developments or to obtain any extension, validation, re-issue,
continuance or renewal of any such patent, trademark or copyright. The Company
will be responsible for the preparation of any such instruments, documents and
papers and for the prosecution of any such proceedings and will reimburse
Employee for all reasonable expenses incurred by him in compliance with the
provisions of this Section.
4. CONFIDENTIAL INFORMATION. Employee recognizes and
acknowledges that by reason of his employment by and service to the Company
(both during the Employment Term and after it), he will have access to
confidential information of the Company and its affiliates, including, without
limitation, information and knowledge pertaining to products and services
offered, inventions, innovations, designs, ideas, plans, trade secrets,
proprietary information, manufacturing, packaging, advertising, distribution
and sales methods and systems, sales and profit figures, customer and client
lists, and relationships between the Company and its affiliates and dealers,
distributors, wholesalers, customers, clients, suppliers and others who have
business dealings with the Company and its affiliates ("Confidential
Information"). Employee acknowledges that such Confidential Information is a
valuable and unique asset and covenants that he will not, either during or at
any time after the term of this Agreement, disclose any such Confidential
Information to any person for any reason whatsoever (except as his duties as an
officer of the Company may require) without the prior written authorization of
the Company's board of directors, unless such information is in the public
domain through no fault of Employee or except as may be required by law.
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5. NON-COMPETITION.
5.1 During the period commencing on the first day of the
Employment Term and ending two years after Employee last performs services for
the Company or any of its affiliates (whether or not such services are rendered
pursuant to this Agreement), Employee will not, unless acting pursuant hereto
or with the prior written consent of the board of directors of the Company,
directly or indirectly, own, manage, operate, join, control, finance or
participate in the ownership, management, operation, control or financing of,
or be connected as an officer, director, employee, partner, principal, agent,
representative, consultant or otherwise with or use or permit his name to be
used in connection with, any business or enterprise engaged in within any state
of the United States, the District of Columbia or any foreign jurisdiction (i)
the business of inventing, producing, creating, manufacturing, selling,
leasing, licensing, marketing or distributing any products used or useful in
the Field, or (ii) any other business in which the Company or any of its
affiliates are engaged at the time of termination of his employment if the
Company has engaged in any such business within one year prior to the
termination of this Agreement or is about to engage in any such business. It
is recognized by Employee that the business of the Company and it affiliates is
or will be international in scope, and that geographical limitations on this
non-competition covenant (and the non-solicitation covenant set forth in
Section 6 hereof) are therefore not appropriate.
5.2 The foregoing restriction shall not be construed to
prohibit the ownership by Employee of not more than five percent (5%) of any
class of securities of any corporation which is engaged in any of the foregoing
businesses having a class of securities registered pursuant to the Securities
Exchange Act of 1934, provided that such ownership represents a passive
investment and that neither Employee nor any group of persons including
Employee in any way, either directly or indirectly, manages, advises or
exercises control of any such corporation, guarantees any of its financial
obligations, otherwise takes any part in its business, other than exercising
his rights as a shareholder, or seeks to do any of the foregoing.
6. NO SOLICITATION. Employee agrees that during the period
commencing on the first day of the Employment Term and ending two years after
Employee last performs services for the Company or any of its affiliates
(whether or not such services are rendered pursuant to this Agreement), he will
not, either directly or indirectly, (i) call on or solicit any person, firm,
corporation or other entity who or which at the time of such termination was,
or within one year prior thereto had been, a customer of the Company or any of
its affiliates with respect to the activities prohibited by Section 5 hereof or
(ii) solicit the employment of any person
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who was employed by the Company or any of its affiliates on a full or part-time
basis at the time of Employee's termination of employment, unless such person
(a) was involuntarily discharged by the Company or such affiliate, or (b)
voluntarily terminated his relationship with the Company or such affiliate
prior to Employee's termination of employment.
7. EQUITABLE RELIEF.
7.1 Employee acknowledges that the restrictions contained
in Sections 3, 4, 5 and 6 hereof are reasonable and necessary to protect the
legitimate interests of the Company and its affiliates, that the Company would
not have entered into this Agreement in the absence of such restrictions, and
that any violation of any provision of those Sections will result in
irreparable injury to the Company. Employee represents that his experience and
capabilities are such that the restrictions contained in Sections 5 and 6
hereof will not prevent Employee from obtaining employment or otherwise earning
a living at the same general level of economic benefit as anticipated by this
Agreement. Employee further represents and acknowledges that (i) he has been
advised by the Company to consult his own legal counsel in respect of this
Agreement, and (ii) that he has, prior to execution of this Agreement, had an
opportunity to review thoroughly this Agreement with his counsel.
7.2 Employee agrees that the Company shall be entitled to
preliminary and permanent injunctive relief, without the necessity of proving
actual damages, as well as an equitable accounting of all earnings, profits and
other benefits arising from any violation of Sections 3, 4, 5 or 6 hereof,
which rights shall be cumulative and in addition to any other rights or
remedies to which the Company may be entitled. In the event that any of the
provisions of Sections 3, 4, 5 or 6 hereof should ever be adjudicated to exceed
the time, geographic, product or service, or other limitations permitted by
applicable law in any jurisdiction, then such provisions shall be deemed
reformed in such jurisdiction to the maximum time, geographic, product or
service, or other limitations permitted by applicable law.
7.3 Employee irrevocably and unconditionally (i) agrees
that any suit, action or other legal proceeding arising out of this Agreement,
including without limitation, any action commenced by the Company for
preliminary and permanent injunctive relief and other equitable relief, may be
brought in any court of competent jurisdiction in the Commonwealth of
Pennsylvania or any other court of competent jurisdiction, provided that any
suit, action or other legal proceeding brought against the Company shall be
brought and adjudicated in the United States District Court for the Eastern
District of Pennsylvania, or, if such court will not accept jurisdiction, in
any court of competent civil jurisdiction sitting
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in Xxxxxxx County, Pennsylvania (ii) consents to the non-exclusive jurisdiction
of any such court in any such suit, action or proceeding and (iii) waives any
objection which Employee may have to the laying of venue of any such suit,
action or proceeding in any such court. Employee also irrevocably and
unconditionally consents to the service of any process, pleading, notices or
other papers in any manner permitted by the notice provisions of Section 12
hereof.
7.4 Employee agrees that he will provide, and that the
Company may similarly provide, a copy of Sections 3, 4, 5 and 6 of this
Agreement to any business or enterprise (i) which he may directly or indirectly
own, manage, operate, finance, join, control or participate in the ownership,
management, operation, financing, control or control of, or (ii) with which he
may be connected with as an officer, director, employee, partner, principal,
agent, representative, consultant or otherwise, or in connection with which he
may use or permit his name to be used; provided, however, that this provision
shall not apply in respect of Sections 5 and 6 of this Agreement after
expiration of the time periods set forth therein.
8. TERMINATION. This Agreement shall terminate prior to the
expiration of the Employment Term upon the occurrence of any one of the
following events:
8.1.DISABILITY. In the event that during the Employment Term Employee
is unable fully to perform his duties and responsibilities hereunder to the
full extent required by the board of directors of the Company by reason of
illness, injury or incapacity for 90 consecutive days, during which time he
shall continue to be compensated as provided in Section 1.4 hereof (less any
payments due Employee under disability benefit programs, including Social
Security disability, worker's compensation and disability retirement benefits),
this Agreement may be terminated by the Company, and the Company shall have no
further liability or obligation to Employee for compensation hereunder;
provided, however, that Employee will be entitled to receive (i) an amount
equal to the installments of his Base Compensation for the remainder of the
Employment Term up to a maximum of six months, (ii) the payments prescribed
under any disability benefit plan which may be in effect for employees of the
Company and in which he participated, and (iii) a pro rata portion of the
incentive compensation, if any, referred to in Section 1.6 hereof in respect of
the year during which Employee first became disabled. Employee agrees, in the
event of any dispute under this Section 8.1, to submit to a physical
examination by a licensed physician selected by the board of directors of the
Company.
8.2. DEATH. In the event that Employee dies during the Employment
Term, the Company shall pay to his executors, legal
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representatives or administrators an amount equal to the installments of his
salary set forth in Section 1.4 hereof for three months following the date of
his death, and thereafter the Company shall have no further liability or
obligation hereunder to his executors, legal representatives, administrators,
heirs or assigns or any other person claiming under or through him; provided,
however, that Employee's estate or designated beneficiaries shall be entitled
to receive the payments prescribed for such recipients under any death benefit
plan which may be in effect for employees of the Company and in which Employee
participated, and a pro rata portion of the incentive compensation, if any,
referred to in Section 1.6 hereof in respect of the year during which Employee
died.
8.3. CAUSE. Nothing in this Agreement shall be construed to
prevent its termination by the Company at any time for "cause." For purposes of
this Agreement, "cause" shall mean the failure of Employee to perform or
observe any of the terms or provisions of this Agreement or to comply fully
with the lawful directives of the board of directors of the Company,
dishonesty, misconduct, conviction of a crime involving moral turpitude,
substance abuse, misappropriation of funds, disparagement of the Company and
its affiliates (or their management or employees), or other proper cause
determined in good faith by a majority of the independent directors of the
Company. Without limitation of the generality of the foregoing, "cause" shall
include the determination by a majority of the independent directors of the
Company, in their sole discretion, that Employee has failed to meet such
performance goals or expectations as may have been established from time to
time by the independent directors and communicated to Employee in writing. The
Company's liability, if any, for payments to Employee by virtue of any wrongful
termination of Employee's employment pursuant to this Agreement shall be
reduced by and to the extent of any earnings received by or accrued for the
benefit of Employee during any unexpired part of the Employment Term. Such
termination shall be effected by notice thereof delivered by the Company to
Employee and shall be effective as of the date of such notice.
8.4. TERMINATION AT COMPANY'S OPTION. Nothing in this Agreement
shall be construed to prevent termination of the Employment Term by the Company
at any time with the approval of a majority of the independent directors of the
Company, with or without cause. In the event of termination pursuant to this
Section 8.4, the Company shall pay to Employee an amount equal to the
installments of the Base Compensation referred to in Section 1.4 hereof for six
months, and thereafter Company shall have no further liability or obligation to
Employee for compensation hereunder. Such termination shall be effected by
notice thereof delivered by the Company to Employee and shall be effective as
of the date of such notice.
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9. SURVIVAL. Notwithstanding the termination of this Agreement
by reason of Employee's disability under Section 8.1 or for cause under Section
8.3, Employee's obligations under Sections 3, 4, 5, and 6 hereof shall survive
and remain in full force and effect for the periods therein provided, and the
provisions contained in Sections 7 and 10-16 hereof likewise shall continue in
force.
10. GOVERNING LAW. This Agreement shall be governed by and
interpreted under the laws of the Commonwealth of Pennsylvania without giving
effect to any conflict of laws provisions.
11. LITIGATION EXPENSES. In the event of a lawsuit by either
party to enforce the provisions of this Agreement, the prevailing party shall
be entitled to recover reasonable costs, expenses and attorney's fees from the
other party.
12. NOTICES. All notices and other communications required or
permitted hereunder or necessary or convenient in connection herewith shall be
in writing and shall be deemed to have been given when hand delivered or mailed
by registered or certified mail, as follows (provided that notice of change of
address shall be deemed given only when received):
If to the Company, to:
Zynaxis, Inc.
000 Xxxxxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Corporate Secretary
With a required copy to:
Xxxxxx, Xxxxx & Xxxxxxx
0000 Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxx, Esquire
If to Employee, to:
Xxxxxx X. Xxxxxxxxx
000 Xxxxx Xxxxxx Xxxx
Xxxxx, XX 00000
or to such other names or addresses as the Company or Employee, as the case may
be, shall designate by notice to each other person entitled to receive notices
in the manner specified in this Section.
13. CONTENTS OF AGREEMENT; AMENDMENT AND ASSIGNMENT.
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13.1 This Agreement supersedes all prior agreements and
sets forth the entire understanding among the parties hereto with respect to
the subject matter hereof, except that this Agreement shall not supersede and
shall be in addition to any other agreements between Employee and the Company
with respect to confidentiality or other intellectual property rights. This
Agreement cannot be changed, modified, extended or terminated except upon
written amendment approved by the board of directors of the Company and
executed on behalf of the Company by a duly authorized officer. Without
limitation of the foregoing, Employee and the Company acknowledge that the
effect of this provision is that no oral modifications of any nature whatsoever
to this Agreement shall be permitted. In addition, nothing in this Agreement
shall be construed as giving Employee any right to be retained in the employ of
the Company beyond the expiration of the Employment Term, and Employee
specifically acknowledges that he shall be an employee-at-will of the Company
thereafter, and thus subject to discharge by the Company with or without cause
and without compensation of any nature.
13.2 Employee acknowledges that from time to time, the
Company or its affiliates may establish, maintain and distribute employee
manuals or handbooks or personnel policy manuals, and officers or other
representatives of the Company or its affiliates may make written or oral
statements relating to personnel policies and procedures. Such manuals,
handbooks and statements are intended only for general guidance. No policies,
procedures or statements of any nature by or on behalf of the Company of its
affiliates (whether written or oral, and whether or not contained in any
employee manual or handbook or personnel policy manual), and no acts or
practices of any nature, shall be construed to modify this Agreement or to
create express or implied obligations of any nature to Employee.
13.3 All of the terms and provisions of this Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
respective heirs, executors, administrators, legal representatives, successors
and assigns of the parties hereto, except that the duties and responsibilities
of Employee hereunder are of a personal nature and shall not be assignable or
delegatable in whole or in part by Employee.
14. SEVERABILITY. If any provision of this Agreement or the
application thereof to any person or circumstance is held invalid or
unenforceable in any jurisdiction, the remainder of this Agreement, and the
application of such provision to such person or circumstance in any other
jurisdiction or to other persons or circumstances in any jurisdiction, shall
not be affected thereby, and to this end the provisions of this Agreement shall
be severable.
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15. REMEDIES CUMULATIVE; NO WAIVER. No remedy conferred upon the
Company by this Agreement is intended to be exclusive of any other remedy, and
each and every such remedy shall be cumulative and shall be in addition to any
other remedy given hereunder or now or hereafter existing at law or in equity.
No delay or omission by the Company in exercising any right, remedy or power
hereunder or existing at law or in equity shall be construed as a waiver
thereof, and any such right, remedy or power may be exercised by the Company
from time to time and as often as may be deemed expedient or necessary by the
Company in its sole discretion.
16. MISCELLANEOUS. All section headings are for convenience only.
This Agreement may be executed in several counterparts, each of which is an
original. It shall not be necessary in marking proof of this Agreement or any
counterpart hereof to produce or account for any of the other counterparts.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound,
have executed this Agreement as of the date first above written.
ZYNAXIS, INC.
By:/s/ XXXXXXX X. XXXXXX
-----------------------------
Xxxxxxx X. Xxxxxx
Controller, Treasurer and Secretary
EMPLOYEE
/s/ XXXXXX X. XXXXXXXXX
--------------------------------
Xxxxxx X. Xxxxxxxxx
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AMENDMENT OF EMPLOYMENT AGREEMENT
THIS AMENDMENT TO EMPLOYMENT AGREEMENT is made as of the 15 day of
November, 1996, between ZYNAXIS, INC., a Pennsylvania corporation ("Zynaxis"),
and XXXXXX X. XXXXXXXXX (the "Employee").
BACKGROUND
Zynaxis and the Employee are parties to an Employment
Agreement dated May 5, 1995 (the "Employment Agreement"). CytRx Corporation, a
Delaware corporation ("CytRx") and Zynaxis are in the process of negotiating an
Agreement and Plan of Merger and Contribution ("Merger Agreement"), pursuant to
which CytRx will lend money to Zynaxis and Zynaxis will become a wholly-owned
subsidiary of Vaxcel, Inc., a wholly-owned subsidiary of CytRx. In order to
ensure that Employee remains at Zynaxis pending the closing under the Merger
Agreement, the parties hereto desire that the Employment Agreement be amended
as provided herein. Terms are used herein as defined in the Employment
Agreement unless otherwise defined herein.
NOW, THEREFORE, in consideration of the mutual covenants and
premises contained herein and in the Employment Agreement, the parties hereto,
each intending to be legally bound hereby, agree as follows:
TERMS
1. Employee shall continue to serve as the President and Chief Executive
officer of Zynaxis until the first to occur of (i) the termination of
this employment under the terms of the Employment Agreement or (ii)
the date of final closing (the "Closing Date") under the Merger
Agreement.
2. Since October 1, 1996, Employee has deferred, and shall continue to
defer until the Closing Date, one-third of the Base Compensation under
the Employment Agreement. The parties hereto acknowledge that
Employee has deferred $9,273.39 the Base Compensation through the date
hereof.
3. Zynaxis agrees, in the event of a closing of the Merger Agreement, to
pay to Employee the following amounts, so long as Employee remains in
the employ of Zynaxis until the Closing Date:
(i) An amount equal to all the Base Compensation deferred by
Employee through the Closing Date. This amount shall be paid
to the Employee in a lump sum on the Closing Date.
(ii) Severance of $29,960. This amount shall be paid to Employee
in a lump sum on the Closing Date.
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(iii) Performance bonuses up to an aggregate amount of $55,000
will be paid to Employee on the Closing Date, payable in
accordance with the following:
A. If Zynaxis operates within the budget limits set
forth in the budget attached hereto, as such budget
may be altered with the consent of CytRx to
accommodate investments in Cauldron (the "Budget"),
during the period from October 1996 to March 1997, a
bonus of $10,000 will be paid to Employee.
B. If $1,200,191 of accounts payable and accrued
expenses are satisfied at a discount of at least
$114,282 by the Closing Date, a bonus of $7,000 will
be paid to the Employee.
C. If sales of assets (including, without limitation,
leasehold improvements, laboratory equipment and
office furniture) to Adolor Corporation and other
purchasers, as contemplated by Exhibit A to the
Liquidation Agreement Schedules 1 and 2, yields at
least $407,000 in gross proceeds, a bonus of $15,000
will be paid to Employee.
D. If a sublease for the 7,600 square feet at the east
end of Zynaxis' current headquarters is executed with
a rental rate not less than the current rates paid by
Adolor Corporation under the sublease dated May 15,
1995 between Zynaxis and Adolor Corporation, for an
initial term not to exceed twelve months, or such
space is transferred to the purchaser of the Cauldron
business by the Closing Date, a bonus of $8,000 will
be paid to Employee.
E. If the Zyn-Linker therapeutic technology rights are
sold to Phanos under the terms of the Option
Agreement between Zynaxis and Phanos dated September
23, 1996 for at least $525,000, a bonus of $15,000
will be paid to Employee.
4. In the event the Merger Agreement is not executed on or before
November 22, 1996, or negotiations between the parties are otherwise
sooner terminated, this Amendment shall be null and void, and of no
further force and effect, in which event Employee shall have no
further obligation to defer any portion of his Base Compensation and
Zynaxis shall pay to Employee, as promptly as possible, all unpaid
deferred amounts.
5. Except as expressly modified hereby, the Employment Agreement is
hereby ratified and confirmed and remains in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have hereunto duly executed
this Amendment as of the date first written above.
ZYNAXIS, INC.
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------------
Chairman, Compensation Committee
By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------------------------
President & Chief Executive Officer
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