EMPLOYMENT AGREEMENT
Exhibit 10.1
THIS EMPLOYMENT AGREEMENT (the “Agreement”) is entered into as of May 18, 2000 (the “Effective
Date”), by and between Xxxxxxx Xxxx, an individual resident of the State of Massachusetts (“you”)
and Iomai Corporation, a Delaware corporation (the “Company”).
WHEREAS, you wish to enter into an employment agreement setting forth certain rights and
benefits regarding your employment by the Company;
WHEREAS, your title shall be President and Chief Executive Officer of the Company and you
shall be a member of the Company’s Board of Directors;
WHEREAS, you are willing to commence your employment based on your particular qualifications,
on the condition that the Company enter into this Agreement and perform all of its responsibilities
hereunder; and
WHEREAS, you will receive substantial benefits from the entry into this Agreement by the
Company, and agree that you shall fully perform all of your responsibilities and duties and
strictly observe all of your obligations hereunder.
NOW, THEREFORE, in consideration of your employment by the Company and the compensation to be
paid by the Company to you in accordance with this Agreement and for other good and valuable
consideration, the receipt of which is hereby acknowledged, you and the Company hereby agree as
follows:
1. Position and Responsibilities.
(a) Position. In accordance with this Agreement, the Company agrees to continue your
employment throughout the Term (defined below). You shall report to the Company’s Board of
Directors (including any committee of the Board of Directors with supervisory authority regarding
the Company’s employees, the “Board”).
(b) Responsibilities. You shall devote your full business efforts and time to the
Company and perform the duties and responsibilities assigned to you in accordance with the
standards and policies that the Board may from time to time establish and in accordance with the
duties and responsibilities commensurate with your position with the Company as determined in
accordance with the Company’s constitutive documents and applicable law. Your position with the
Company and responsibilities as of the date hereof are set forth in Exhibit A hereto. At its
option, the Board shall provide amendments to Exhibit A from time to time to reflect modifications
to your position or responsibilities. You shall not render services to any other person or entity
without the prior written consent of the Board; provided that the Company hereby consents to your
service as a member of the board of directors of the Molecular Immunology Foundation. The
foregoing, however, shall not preclude you from engaging in appropriate civic, charitable or
religious activities or from devoting a reasonable amount of time to private investments that do
not interfere or conflict with your duties and responsibilities to the Company. You and the
Company agree that your position is essential to the Company’s success and that the highest level
of performance is required from you.
(c) Board Membership. On or about the Effective Date you shall be appointed to the
Board.
2. Term of Employment. The Company agrees to continue your employment, and you agree to
remain in employment with the Company, from the Effective Date until the date your employment
terminates pursuant to this Agreement (such period being hereinafter defined as the “Term”). Any
waiver of notice shall be valid only if it is made in writing and expressly refers to the notice
requirement set forth in Section 17(a) below.
3. Compensation.
(a) Base Compensation. You shall be entitled to receive base compensation during the
Term (“Base Compensation”). Your initial Base Compensation shall be at the annual rate of
$200,000, which shall be increased to an annual rate of $250,000 upon completion of a Qualified
Financing (as defined herein). In addition, your Base Compensation may be modified at any time
after May 18, 2001 at the discretion of the Board in accordance with performance criteria to be
determined by the Board in its sole discretion. Base Compensation shall be paid on the same dates
as the Company makes payroll payments, less deductions required by law.
(b) Bonus Compensation. During the Term, you may be entitled to receive additional
cash bonus payments (less deductions required by law) (“Bonus Compensation”). Bonus Compensation
shall be determined by the Board, from time to time in accordance with performance criteria adopted
by the Board. For the first year of the term, you shall be eligible to receive Bonus Compensation
of up to $100,000, $50,000 of which shall be payable immediately upon the Company obtaining $5
million in the aggregate from one or more financing sources prior to the first anniversary of the
Effective Date, excluding any amounts obtained from Mitsubishi and Taisho within 90 days of the
Effective Date (the “Qualified Financing”) and the remaining $50,000 of which shall be payable in
accordance with written performance criteria, to be agreed to by you and the Board not later than
July 1, 2000, and paid upon accomplishment of such criteria.
(c) Stock Compensation. In addition to the compensation set forth in Sections 3 (a)
and (b) above, as of the date of this Agreement, you shall receive an initial grant of options to
purchase common stock, of the Company (“Common Stock”) in accordance with the Stock Option
Agreement attached as Exhibit B hereto. In addition upon the completion of the Qualified Financing
the Company agrees to provide to you an additional grant of options to purchase Common Stock at the
then fair market value in an amount sufficient to bring your fully diluted contingent ownership of
common stock (including common stock equivalents) to 7% after the completion of a Qualified
Financing, when taking into account in the aggregate your shares plus all fully diluted common
stock equivalents. Your options shall be governed by the Company’s 1999 Stock Incentive Plan and
the applicable Stock Option Agreement and shall vest under the Company’s standard vesting schedule,
provided that the Company agrees that (i) in the event of a Change of Control, (ii) if your
employment with the Company is terminated by the Company for other than Cause (as defined below) or
(iii) if you terminate your employment with the Company for Good Reason (as defined herein), all of
your unvested options shall immediately vest and become exercisable.
-2-
(d) Incentive Compensation. In addition to the benefits described hereof, at the sole
discretion of the Board, you will be entitled to participate in any stock option, deferred
compensation, stock appreciation right, phantom stock or other incentive plan established by the
Company for the benefit of its employees subject to eligibility requirements.
(e) Definition of Change in Control. For all purposes under this Agreement, and the
related stock options granted pursuant to this Agreement,
“Change in Control” shall mean the
occurrence of any of the following events after the Effective Date:
(i) The acquisition, other than from the Company (which term for purposes of this
Subsection (i) includes any successor corporation), or any subsidiary thereof by any
person or group (as such terms are used for the purposes of Sections 13(d) or 14(d)
of the Securities Exchange Act of 1934, as amended (the
“1934 Act”)) of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the 0000 Xxx) of
securities with voting power equal to fifty percent (50%) or more of the combined
voting power of the Company’s then outstanding voting securities;
(ii) The individuals who, as of the Effective Date, are members of the Board and who
have remained members of the Board (the “Incumbent
Board”), cease for any reason to
constitute at least one-half of the Board; provided, however, that if the
appointment or election, or nomination for election by the Company’s stockholders,
of any new director was approved by a vote of at least one-half of the directors who
then constitute the Incumbent Board, such new director shall be considered a member
of the Incumbent Board; or
(iii) Approval by the company’s stockholders of (a) a merger or consolidation of the
Company with or into another corporation if the stockholders of the Company,
immediately before such merger or consolidation do not, immediately after such
merger or consolidation, own, directly or indirectly, more than fifty percent (50%)
of the combined voting power of the then outstanding voting securities of the
corporation resulting from such merger or consolidation in substantially the same
proportion as their ownership of the combined voting power of the voting securities
of the Company outstanding immediately before such merger or consolidation or (b)
dissolution of the Company or an agreement for the sale or other disposition of all
or substantially all of the assets of the Company.
Notwithstanding the foregoing, a Change in Control shall not be deemed to occur solely because
fifty percent (50%) or more of the combined voting power of the Company’s then outstanding
securities is acquired by (i) a trustee or other fiduciary holding securities under one or more
employee benefit plans maintained by the Company or any of its subsidiaries or (ii) any corporation
which, immediately prior to such acquisition, is owned directly or indirectly by the stockholders
of the Company in the same proportion as their ownership of stock in the Company immediately prior
to such acquisition.
-3-
For purposes of this Subsection (b), the Company’s stockholders are deemed to be the indirect
owners of any assets, including stock interests, held by the Company or any subsidiary thereof.
4. Reimbursement of Expenses. The Company shall reimburse you, in accordance with the
Company’s policies, for all reasonable travel and lodging expenses necessarily incurred and paid by
you in the course of performing the duties and responsibilities commensurate with your position
with the Company under this Agreement.
5. Employee Benefits.
(a) In General. Except as otherwise provided in this Agreement, during the Term, you
shall be eligible to participate in the employee benefit plans that the Company may provide,
including but not limited to the Company’s health and dental insurance plans and 401K plan, subject
in each case to the generally applicable terms and conditions of the plan or program in question
and to the determinations of any person or committee administering such plan or program.
(b) Life Insurance Coverage. During the Term, you shall be entitled to term life
insurance in the amount of $500,000.
(c) Vacation. During the Term, you shall be entitled to take such vacation time as
specified from time to time by Company policy.
6. Other Perquisites. During the Term, the Company shall provide you with medical and
disability insurance in accordance with the Company’s then applicable Employee Handbook.
7. Termination of Employment. Termination of your employment may occur under any of the
following circumstances:
(a) Company’s Termination of Employment. The Company has the right to terminate your
employment at any time, with or without Cause. For all purposes under this Agreement, (“Cause”)
shall mean:
(i) a willful failure by you to substantially perform your duties and
responsibilities in accordance with this Agreement, other than a failure resulting
from your complete or partial incapacity due to physical or mental illness or
impairment;
(ii) a willful act by you which constitutes personal dishonesty, incompetence, gross
misconduct or breach of fiduciary duty involving personal profit or fraud which in
each instance is materially injurious to the Company;
(iii) willful violation of any law, rule or regulation or any final cease-and-desist
order relating to the operation of the business of the Company;
(iv) conviction of, or a plea of “guilty” or “no contest” to, a felony or a crime
involving moral turpitude; or
-4-
(v) breach by you of your representations and covenants set forth in this Agreement.
No act, or failure to act, by you shall be considered “willful” unless committed without good
faith and without a reasonable belief that the act or omission was lawful and in the Company’s best
interest. If the Company terminates your employment for any reason other than for Cause, you shall
receive the severance payments (as defined hereunder) set forth in Section 8 below.
(b) Your Termination of Employment. You have the right to terminate your employment
with the Company at any time. If you terminate your employment, you will not be entitled to any
Severance Payments (as defined hereunder) unless you terminated your employment for Good Reason (as
defined below). You agree to provide thirty (30) days’ prior written notice to the Company of
termination of your employment in accordance with Section 17(a) below; provided that the Company
may in its sole discretion select any date prior to the end of such thirty (30) day notice period
as the date your employment will terminate.
(c) Termination for Death or Disability. Your employment shall be deemed to have been
terminated by you upon your death or at the end of any period during which your inability to
perform your duties and responsibilities in accordance with this Agreement exceeded more than
fifteen (15) weeks, whether or not consecutive, in any twelve (12) month period. Termination will
be effective upon the occurrence of such event.
(d) Effect of Termination. Upon the effective date of termination of your employment
with the Company (the “Termination Date”), you will not be eligible for further compensation,
benefits or perquisites under Sections 3, 4, 5 or 6 of this Agreement, other than those that have
already accrued.
8. Termination for Good Reason. In accordance with this Section 8, you may voluntarily and
immediately terminate your employment for “Good Reason” if (i) you suffer a material reduction in
your authority or areas of responsibility, (ii) your Base Compensation is reduced by an amount
greater than five percent (5%) of your Base Compensation prior to such reduction or (iii) you cease
to be a member of the Board for any reason other than Cause.
9. Severance Payments.
If you voluntarily resign your employment for Good Reason or if the Company terminates your
employment for any reason other than for Cause, then you shall be entitled to receive all of the
payments and benefit coverages described in this Section 9 (the “Severance Payments”). You shall
not be entitled to Severance Payments except as provided in this Section 9.
(a) Cash Payment. On the Termination Date you shall receive a cash payment equal to
your then current Base Compensation, net of any deduction for taxes required by law.
(b) Insurance Coverage. For the period from the Termination Date up to the one-year
anniversary of the Termination Date (the “Continuation Period”) if you elect pursuant to COBRA
(§4980B under the Internal Revenue Code (the “Code”)) to continue coverage under the
-5-
Company’s health and/or dental plans, the Company shall pay the premiums for you (and, where
applicable, your dependents) for the Continuation Period, provided that you remain eligible under
COBRA to continue coverage under such plans.
(c) No Mitigation. You shall not be required to mitigate the amount of any payment
contemplated by Section 9(a), nor shall any such payment be reduced by any earnings that you may
receive from any other source.
10. Limitation on Payments.
(a) Basic Rule. Notwithstanding any contrary provision of this Agreement, the Company
shall not be required to make any payment or property transfer to, or for your benefit (under this
Agreement or otherwise) that would subject you to the excise tax described in Section 4999 of the
Code, if, after the application of this Section 10, the present value of your aggregate payments or
property transfers from the Company will be greater than’ the present value of your payments or
property transfers from the Company would have been if (i) this Section 10 did not apply and (ii)
such present value had been reduced by the amount of the excise tax described in Section 4999 of
the Code. In all other cases, this Section 8 shall not apply to you. All determinations under
this Subsection (a) shall be made by the independent auditors retained by the Company, most
recently prior to the Change in Control (the “Auditors”) based on information supplied by the
Company and you, and shall be binding on the Company and you. All fees and expenses of the
Auditors shall be paid by the Company.
(b) Reductions. If the amount of the aggregate payments or property transfers to you
must be reduced under this Section 10, then you shall direct in which order the payments or
transfers are to be reduced, but no change in the timing of any payment or transfer shall be made
without the Company’s consent. As a result of uncertainty in the application of Section 4999 of
the Code at the time of an initial determination by the Auditors hereunder, it is possible that a
payment will have been made by the Company that should not have been made (an “Overpayment”) or
that an additional payment that will not have been made by the Company could have been made (an
“Underpayment”). In the event that the Auditors, based upon the assertion of a deficiency by the
Internal Revenue Service against the Company or you that the Auditors believe has a high
probability of success, determine that an Overpayment has been made, such Overpayment shall be
treated for all purposes as a loan to you that you shall repay to the Company, together with
interest at the applicable federal rate specified in Section 7872(f)(2) of the Code; provided,
however, that no amount shall be payable by you to the Company if and to the extent that such
payment would not reduce the amount that is subject to an excise tax under Section 4999 of the-
Code. In the event that the Auditors determine that an Underpayment has occurred, such
Underpayment shall promptly be paid or transferred by the Company to you, or for your benefit,
together with interest at the applicable federal rate specified in Section 7872(f)(2) of the Code.
11. Other Obligations.
You represent and warrant that you are not subject to any other obligations that would
conflict with or inhibit your ability to perform your duties and responsibilities under this
Agreement. You further represent and warrant that you have not and will not bring to the
-6-
Company or use in the performance of your duties and responsibilities any equipment, supplies,
facility or trade secret information, which are not generally available to the .public, of any
current or former employer or organization to which you provided services, unless you have obtained
written authorization for their possession and use.
12. Confidential Information.
You shall not disclose or use at any time, either during the Term or after the Termination
Date, any Confidential Information (defined below) of the Company, whether patentable or not, which
you learn as a result of your employment with the Company, whether or not you developed such
information. “Confidential Information” shall include, without limitation: terms of contracts with
customers, including, contracts with suppliers, independent contractors or employees; business
plans and forecasts, non-public financial information and investor identities; personnel
information relating to the duties and responsibilities of, and compensation and benefits provided
to, any employee; names, home address and phone numbers of employees; sales and marketing
strategies, plans and programs; product development information; equipment manufacturing
specifications; inventions, discoveries, improvements, trade secrets, secret processes, technology,
know-how, models, drawings, works of authorship or other creative works, ideas, knowledge, data and
any other information which the Company regards as confidential. Confidential Information shall
remain at all times the property of the Company.
You may use or disclose Confidential Information only:
(a) as authorized and necessary in performing your duties and responsibilities in accordance
with this Agreement;
(b) with the Company’s prior written consent;
(c) in a legal proceeding between you and the Company to establish the rights of either party
under this Agreement, provided that you stipulate to a protective order to prevent any unnecessary
use or disclosure; or
(d) subject to a compulsory legal process that requires disclosure of such information,
provided that you have complied with the following procedures to ensure that the Company has an
adequate opportunity to protect its legal interests in preventing disclosure:
Upon receipt of a subpoena that could possibly require disclosure of Confidential
Information, you provide a copy of the compulsory process and complete information
regarding the circumstances under which you received it to the Company by hand
delivery within 24 hours. You will not make any disclosure until the latest
possible date for making such disclosure in accordance with the compulsory process
(“Latest Possible Date”). If the Company seeks to prevent disclosure in accordance
with the applicable legal procedures, and provides you with notice before the Latest
Possible Date that it has initiated such procedures, you will not make disclosures
of any Confidential Information that is the subject of such procedures, until such
objections are withdrawn or ruled on.
-7-
You hereby acknowledge that any breach of this Section 12 would cause the Company irreparable
harm.
13. Development and Ownership of Inventions and Improvements; Copyrighted Works.
(a) You shall keep the Company or its nominee informed of, and promptly disclose to the
Company, all inventions, discoveries, improvements, trade secrets, secret processes, technology,
know-how, works of authorship or other creative works, ideas, knowledge and data, whether
patentable or not, that you individually or jointly with others originated, developed, made,
conceived, acquired, first reduced to practice or suggested during the Term which are based in
whole or in part on the Company’s business or related to the Company’s business or activities.
(b) Except for any inventions, discoveries, improvements, trade secrets, secret processes,
technology, know-how, works of authorship or other creative works, ideas, knowledge and data,
whether patentable or not, for which no equipment, supplies, facility or Confidential Information
of the Company was used and which were developed entirely on your own time and unrelated to your
work with the Company, you and your heirs, assigns and representatives shall assign, transfer and
set-over, and do hereby assign, transfer, and set-over, to the Company or its nominees and their
successors and assigns all of their right, title and interest in and to all inventions,
discoveries, improvements, trade secrets, secret processes, technology, know-how, works of
authorship or other creative works, ideas, knowledge and data, whether patentable or not, that you
individually or jointly with others originated, developed, made, conceived, acquired, first reduced
to practice or suggested during the Term which are based in whole or in part on the Company’s
business or related to the Company’s business or activities. You will, upon request by the
Company, immediately sign and deliver to the Company without further consideration any and all
documents necessary to perfect the assignments granted in this Subsection (b).
(c) You hereby represent that prior to being employed by the Company, you did not originate,
develop, make, conceive, acquire, first reduce to practice or suggest any inventions, discoveries,
improvements, trade secrets, secret processes, technology, know-how, works of authorship or other
creative works, ideas, knowledge or data, whether patentable or not, in any field engaged in by the
Company or related to the Company’s business or activities.
(d) Both while providing services under this Agreement and after Termination Date, you will,
upon request by the Company, immediately sign and deliver to the Company without further
consideration, all instruments in writing requiring your signature and deemed by the Company to be
necessary or advisable in, or in connection with, the filing or prosecuting of any application for
any patent covering improvements, inventions or any divisional, continuing, renewal or reissue
application or reexamination request based upon any application for patent. In the event that the
Company is unable for any reason whatsoever to secure your signature to any lawful and necessary
documents required to apply for or execute any patent application with respect to such idea,
process, development, design, system, program, discovery, invention, improvement or writing
(including renewals, extensions, continuations, divisions or continuations in part thereof), you
hereby irrevocably designate and appoint the Company and its officers and agents, as your agents
and attorneys-in-fact to act for and on your behalf and instead
-8-
of you, to execute and file any such application and to do all other lawfully permitted acts
to further the prosecution and issuance of patents thereon with the same legal force and effect as
if executed by you.
(e) You will aid the Company promptly on request, and without further consideration, in any
matter pertaining to any of copyrighted works, improvements, inventions, applications for patents
covering inventions or improvements; provided, however, that if such request is made by the Company
after the Termination Date, you shall be entitled to receive reimbursement of expenses incurred and
compensation for any services rendered in complying with such request at the rate of $1,000 per
half day or $2,000 per day.
14. Non-Solicitation/Non-Competition.
(a) For two (2) years from the Termination Date, you will not, directly or indirectly,
individually or as part of or on behalf of any other person, employer or entity, attempt to solicit
for hire, any persons who are employed by the Company at the Termination Date until at least three
(3) months after the person’s employment with the Company ends.
(b) For two (2) years from the Termination Date, except with the Board’s prior written
consent, you will not, directly or indirectly, on behalf of yourself or any other person, entity or
employer, sell or otherwise provide, or solicit for the purposes of selling or otherwise providing,
any technology, device or products that in each case is directly competitive, similar or related to
those licensed or sold by the Company (including any subsidiary) as of the Termination Date to any
person or entity that has within the twelve (12) months preceding the Termination Date purchased or
licensed such technology, device or product from the Company. This restriction shall not apply to
a product if at any point during such two (2) year period the Company stops selling or marketing
any product that is directly competitive, similar or related.
(c) For two (2) years from the Termination Date, except with the Board’s prior written
consent, you will not directly or indirectly, own, manage, operate, control, be employed by,
participate in, advise, consult or contract with, or be connected in any manner with the ownership,
management, operation, or control of any business that develops, manufactures, distributes, sells,
licenses or markets therapeutic or prophylactic products delivered by transcutaneous, transdermal
or topical delivery systems.
15. Indemnification.
During the Term and at all times thereafter, the Company shall indemnify you in accordance
with the Company’s by-laws from any claims or actions based upon any acts or omissions, or alleged
acts or omissions, by you which arise out of or are related to your employment with the Company.
You shall be a beneficiary of any directors’ and officers’ liability insurance policy maintained by
the Company as long as you remain an officer or director of the Company.
16. Return of Property.
Upon termination of your employment with the Company for any reason, and not later than the
Termination Date you agree to immediately return to the Company all property
-9-
belonging to the Company. This includes all documents and other information prepared by you
or on your behalf or provided to you in connection with your duties under this Agreement,
regardless of the form in which such document or information are maintained or stored, including
computer, typed, written, imaged, audio, video, micro-fiche, electronic or any other means of
recording or storing documents or other information. You hereby warrant that you will not retain
in any form any such document or other information or copies thereof. You may retain a copy of
this Agreement and information describing any rights you may have after the Termination Date under
any employee benefit plan.
17. Miscellaneous Provisions.
(a) Notices. Unless otherwise provided herein, any notice or other information to be
provided to the Company will be sent by overnight delivery, with acknowledgement of receipt
requested, to:
Iomai Corporation
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Attention: Chairman of the Board
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Attention: Chairman of the Board
with a copy to:
Pillsbury Madison & Sutro LLP
0000 Xxxxx Xxxx.
Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxx, Esq.
0000 Xxxxx Xxxx.
Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxx, Esq.
Any notice or other information to be provided to you will be sent by overnight delivery, with
acknowledgement of receipt requested, to:
Xxxxxxx Xxxx
000 Xxxxxx Xxxxxx
Xxxxxxx Xxxxx, XX 00000
000 Xxxxxx Xxxxxx
Xxxxxxx Xxxxx, XX 00000
(b) Waiver. No provision of this Agreement shall be modified, waived or discharged
unless the modification, waiver or discharge is agreed to in writing and signed by you and by an
authorized officer of the Company (other than you). No waiver by either party of any breach of, or
of compliance with, any condition or provision of this Agreement by the other party shall be
considered a waiver of any other condition or provision or of the same condition or provision at
another time.
(c) Entire Agreement. This Agreement and the Exhibits hereto constitute the entire
agreement between you and the Company and supercedes all prior agreements and understandings
between you and the Company regarding your employment by the Company. In making this Agreement,
this parties warrant that they did not rely on any representations or statements other than those
contained in this Agreement. This Agreement may only be modified
-10-
in writing and when signed by all parties to this Agreement. You further certify that you
fully understand the terms of this Agreement and have entered into it voluntarily.
(d) Choice of Law. Regardless of the choice of law provisions of the State of
Delaware or any other jurisdiction, the parties agree that this Agreement shall be otherwise
interpreted, enforced and governed by federal law and the laws of the State of Delaware.
(e) Severability. The invalidity or unenforceability of any provision or provisions
of this Agreement shall not affect the validity or enforceability of any other provision hereof,
which shall remain in full force and effect.
(f) Dispute Resolution. You and the Company agree that any dispute or claim between
you and the Company, whether based on contract, tort or otherwise, relating to or arising out of
this Agreement, including the termination of your employment relationship with the Company, shall
be resolved under the following procedures.
(i) The party claiming to be aggrieved shall furnish to the other party a written
statement of the grievance identifying any witnesses or documents that support the
grievance and the relief requested or proposed.
(ii) If the other party does not agree to furnish the relief requested or proposed,
or otherwise does not satisfy the demand of the party claiming to be aggrieved, the
parties shall submit the dispute to non-binding mediation before a mediator to be
jointly selected by the parties. However, a dispute need not be submitted to
mediation if the matter in dispute is less than $10,000. The Company will pay the
cost of the mediation.
(iii) If the mediation does not produce a resolution of the dispute, the parties
agree that the dispute shall be resolved by final and binding arbitration. The
arbitrator shall be chosen by mutual agreement of the parties or, if no agreement
can be reached, by requesting a panel of seven arbitrators from the Federal
Mediation and Conciliation Service and alternately striking names from the list
until one name remains. The arbitrator shall have no authority to modify, change or
refuse to enforce the lawful terms of any final and binding arbitration agreement.
The arbitrator shall have the authority to grant any relief authorized by
law. The arbitrator shall not have the authority to modify, change or
refuse to enforce the terms of this Agreement. In addition, the arbitrator
shall not have the authority to require the Company to change any lawful
policy or benefit plan. The arbitrator shall not make any award that could
not be made by a court of law under the same circumstances.
The hearing shall be transcribed. The Company shall bear the costs of the
arbitration if the employee prevails. If the Company prevails, you will pay
the cost of the arbitration.
-11-
(iv) Arbitration shall be the exclusive final remedy for any dispute between the
parties, provided that the arbitrator’s award must be based upon substantial
evidence and must follow the law. The parties agree that no dispute shall be
submitted to arbitration where the party claiming to be aggrieved has not complied
with the preliminary steps provided for in paragraphs (i) and (ii) above and
injunctive relief may be sought from any court of competent jurisdiction located in
the District of Columbia for any claims concerning an alleged breach of Sections 12,
13 or 14 of this Agreement or other misuse of trade secrets or other Confidential
Information, or where injunctive relief is necessary to preserve the status quo or
to prevent irreparable injury.
(g) No Assignment. You may not assign this Agreement, either voluntarily or
involuntarily.
(h) Counterparts. This Agreement may be executed in any number of counterparts each
of which shall be an original, but all of which together shall constitute one instrument.
(i) Headings. The headings in this Agreement are for convenience only and shall not
effect the interpretation of this Agreement.
[The remainder of this page is intentionally blank.]
-12-
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the
Company by its authorized officer, as of the day and year set forth under their signatures below.
XXXXXXX XXXX
|
IOMAI CORPORATION | |
/s/ Xxxxxxx X. Xxxx
|
By: /s/ Xxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxxx Title: Chief Executive Officer |
-13-
AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
This Amendment No. 1 (this “Amendment”) to the Employment Agreement, dated as of May 18, 2000
(the “Employment Agreement”), by and between Xxxxxxx Xxxx, an individual resident of the
Commonwealth of Massachusetts (“you”) and Iomai Corporation, a Delaware corporation (the
“Company”), is made and entered into as of October 25, 2001 by and between you and the Company.
Capitalized terms used and not otherwise defined in this Amendment are used herein as defined in
the Employment Agreement.
WITNESSETH:
WHEREAS, in accordance with Section 17(c) of the Employment Agreement, you and the Company
desire to amend certain provisions of the Employment Agreement, as set forth below.
NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. Amendment to Section 3(b). Section 3(b) of the Employment Agreement is hereby
amended and restated in its entirety as follows:
“(b) Bonus Compensation. During the Term, you may be entitled to receive
additional cash bonus payments (less deductions required by law) (“Bonus
Compensation”). Bonus Compensation shall be determined by the Board, from time to
time in accordance with performance criteria adopted by the Board. You will be
eligible to receive a cash bonus of $50,000, which shall be payable in accordance
with written performance criteria to be agreed upon by you and the Board by not
later than July 1, 2000, and paid upon accomplishment of such criteria. In
addition, you shall be eligible to receive one-time Bonus Compensation of $50,000,
which shall be payable immediately within 120 days of the Company’s receipt of
advances in the aggregate principal amount of $5,000,000 from Elan Pharma
International Limited under the Convertible Promissory Note-C of Iomai Corporation
dated July 27, 2001 (the “Qualified Financing”).”
2. Acknowledgement of Receipt of Bonus Compensation. You acknowledge that you
received in January 2001 a $50,000 payment of the Bonus Compensation under Section 3(b) of the
Employment Agreement, as amended hereby, for accomplishment during 2000 of performance criteria
agreed upon by you and the Board.
3. Amendment to Section 3(c). Section 3(c) of the Employment Agreement is hereby
amended and restated in its entirety as follows:
“(c) Stock Compensation. In addition to the compensation set forth in
Sections 3 (a) and (b) above, as of the date of this Agreement, you shall receive an
initial grant of options to purchase common stock of the Company (“Common Stock”)
-14-
in accordance with the Stock Option Agreement attached as Exhibit B hereto. On or
by October 25, 2001, the Company also agrees to provide you an additional grant of
options to purchase 505,182 shares of Common Stock at the then fair market value.
Your options shall be governed by the Company’s 1999 Stock Incentive Plan and the
applicable Stock Option Agreement and shall vest under the Company’s standard
vesting schedule, provided that the Company agrees that (i) in the event of a Change
of Control, (ii) if your employment with the Company is terminated by the Company
for other than Cause (as defined below) or (iii) if you terminate your employment
with the Company for Good Reason (as defined herein), all of your unvested options
shall immediately vest and become exercisable.”
4. Amendment to Section 17. Section 17 of the Employment Agreement is hereby amended
by (i) deleting the words “Iomai Corporation, 0000 Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X.
00000-0000, Attention: Chairman of the Board” and substituting the words “Iomai Corporation, 00
Xxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxxx 00000, Attention: Chairman of the Board” in
place thereof; and (ii) by deleting the words “Pillsbury Madison & Sutro LLP, 0000 Xxxxx Xxxx.,
Xxxxx 000, Xxxxxx, XX 00000, Attention: Xxxxxxxx X. Xxxxxxx, Esq.” and substituting the words
“Xxxxxx & Dodge LLP, 000 Xxxxxxxxxx Xxxxxx at Prudential Center, Boston, MA 02199-7612, Attention:
Xxxx X. Xxxxxxxx, Esq.” in place thereof.
5. Full Force and Effect. Except as modified, amended and supplemented above, all
rights, terms and conditions of the Employment Agreement shall remain in full force and effect.
6. Effect of Amendment. This Amendment is an amendment to the Employment Agreement.
Unless the context of this Amendment otherwise requires, the Employment Agreement and this
Amendment shall be read together and shall have the effect as if the provisions of the Employment
Agreement and this Amendment were contained in one agreement. After the effective date of this
Amendment, all references in the Employment Agreement to the “Employment Agreement, “ “this
Agreement,” “hereto,” “hereof,” “hereunder” or words of like import referring to the Employment
Agreement shall mean the Employment Agreement as amended by this Amendment.
7. Governing, Law. Regardless of the choice of law provisions of the State of
Delaware or any other jurisdiction, the parties agree that this Amendment shall be otherwise
interpreted, enforced and governed by federal laws and the laws of the State of Delaware.
8. Counterparts. This Amendment may be executed in counterparts, and when so
executed, each counterpart shall be deemed an original, and said counterparts together shall
constitute one and the same instrument.
-15-
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above
written.
| IOMAI CORPORATION | ||
/s/ Xxxxxxx X. Xxxx Xxxxxxx Xxxx |
By: /s/ Xxxxxxx X. Xxxxxx Xxxxxxx X. Xxxxxx Vice President — Business Development & General Counsel |
-16-
