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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of the 8th day of January, 2000 by and
between Nymox Pharmaceutical Corporation, a Canadian corporation (the
"Company"), and Xxxxxx Xxxxxxxxxxx (the "Executive").
W I T N E S S E T H :
WHEREAS the Company is this day purchasing from the Executive all of her common
shares of Serex, Inc., a New Jersey corporation, and thereby acquiring a
controlling interest in Serex, Inc.;
WHEREAS, the Executive is this day receiving 187,951 shares of the common stock
of the Company and a warrant to purchase 115,662 shares of the common stock of
the Company as consideration for the purchase of her Serex common stock, subject
to the terms of the Share Purchase Agreement between the Company and the
Executive;
WHEREAS, the Company wishes to retain the services of the Executive as a
Vice-President of the Company to continue her development work on the Company's
7C Gold test and to continue to direct the scientific endeavors of Serex Inc.
and to act as President of Serex, Inc.;
WHEREAS, the Executive wishes to provide her services to the Company on the
terms set out below in this Employment Agreement and acknowledges that the
Company is reasonably relying upon Executive's execution of this Agreement as
part of its decision to purchase her shares of Serex, Inc.;
NOW, THEREFORE, in consideration of the covenants and agreements of the parties
herein contained, and as an inducement to the Company to close the purchase of
the Executive's shares of Serex, Inc., the Company and the Executive agree as
follows:
1. Employment.
The Company hereby employs the Executive and the Executive hereby accepts
appointment as Vice-President of the Company. The Executive agrees to remain in
the employment of the Company on the terms and conditions set out below in this
Agreement. Paragraph 6 of this Agreement sets out the Executive's duties.
2. Term.
The initial term of this Employment Agreement shall be four years, commencing on
January 8th, 2000 and expiring on January 8th, 2004 unless terminated earlier
pursuant to paragraph 13 below or extended as provided in this paragraph. At the
end of the initial term of the Agreement (or the end of the term of any
automatic renewal of this Agreement), the term of this Agreement shall be
automatically renewed for an additional term of one year unless either the
Company or the Executive gives the other party notice at least 30 days prior to
the end of the term of its/her intention not to renew the Agreement.
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3. Salary and Other Compensation.
(a) As part of the Executive's compensation for services to be rendered
under this Agreement, the Company shall pay the Executive an annual salary at
the rate of One Hundred and Twenty-five Thousand Dollars ($125,000) (as adjusted
upward at the discretion of the Compensation Committee of the Board of Directors
of the Company from time to time) payable, as nearly as practicable, in equal
semimonthly installments. The Company agrees to review the Executive's salary at
least once in every year during the term of this Agreement and adjust it upward
accordingly in order to ensure that the Executive's salary is always more than
any other employee under her supervision. The Executive's salary, once
increased, shall not be later reduced.
(b) [Confidential]
4. Options.
Further as part of the Executive's compensation, the Company shall grant the
Executive an option to purchase at any time or from time to time after their
vesting dates and on or before December 23, 2009 (the "Expiry Date") 40,000
common shares of the Company in accordance with the Nymox Share Option Plan, a
copy of which is attached to and forms part of this Agreement as Schedule A (the
"Option Plan"). At the Expiry Date, the option hereby granted and still in
effect shall expire and terminate and be of no further force or effect as to the
optioned shares in respect of which the option hereby granted has not been
exercised.
The exercise price of each option shall be $3.70 per share, vesting as follows:
- 10,000 on the first anniversary of the date of this Employment
Agreement;
- 10,000 on the second anniversary of the date of this Employment
Agreement;
- 10,000 on the third anniversary of the date of this Employment
Agreement; and
- 10,000 on the fourth anniversary of the date of this Employment
Agreement.
In the event that options granted to other executives or officers of the Company
are repriced or otherwise adjusted downward in the future, the options granted
the Executive under this Agreement shall be afforded the same proportionate
treatment on a percentage-wise basis as those treated most favorably pursuant to
the repricing or other adjustments.
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5. Additional Benefits and Reimbursement of Expenses.
5.1 The Company shall provide the following additional benefits to the
Executive during the term of this Agreement:
(i) 20 working days of paid vacation per year (non-cumulative);
(ii) up to 10 paid sick days per year (non-cumulative);
(iii) 5 paid days per year for attendance at scientific conferences,
professional, industry and investigator conferences and studies
of the Executive's choice (non-cumulative);
(iv) health care benefits, either in the form of a $5,000 health care
allowance or coverage under the Company's health care plan; and
(v) such other benefits as the Company's Board shall lawfully adopt
and approve for the Executive.
5.2 The Company shall pay or reimburse the Executive for all reasonable
expenses actually incurred by the Executive or paid by the Executive
during the term of the Agreement for expenses in connection with
Company business, including:
- travel expenses, including air and rail fare and, when
overnight stay is required, hotel accommodation and personal
meals (meals not exceeding $50.00 per day);
- telephone expenses, including long distance calls from
personal phones; and
- office supplies including stationary but not including office
equipment.
Expense claims are payable upon timely presentation of an expense
report together with such bills, expenses, statements, vouchers or such
other supporting information as the Company may reasonably require.
6. Duties.
The duties of the Executive shall include:
- participation on a scientific basis with the Company's research and
development work on drugs for the prevention, treatment and delay of
onset of Alzheimer's disease, antimicrobial treatments and other
therapeutic and scientific projects;
- continuing scientific, regulatory and commercial development of the
Company's 7C Gold Test for Alzheimer's disease;
- scientific, regulatory and commercial development of the diagnostic
projects of the Company and of Serex, Inc.;
- acting as the President of Serex, Inc.;
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- directing the scientific endeavors of Serex, Inc.;
- the management and development of Serex, Inc.'s ongoing research,
product development, intellectual property, and technologies,
including its proprietary XXXX technology and its ongoing development
of diagnostic assays; and
- attendance at scientific conferences, professional, industry and
investigator conferences and studies at the Company's request.
The Executive shall report to the President and C.E.O. of the Company and/or a
delegate to be appointed from time to time. The President and C.E.O. of the
Company may change these duties or assign new duties to the Executive from time
to time not inconsistent with the terms of this Agreement. The Executive agrees
to devote her full business time and effort to the diligent and faithful
performance of such duties.
7. Place of Employment.
The Executive's principal place of employment shall be in the Maywood, New
Jersey area and the Company shall not relocate her principal place of employment
to a new location more than 50 miles from Maywood, New Jersey without her prior
written approval. The Executive acknowledges that her duties may require her
traveling to Montreal on a regular basis and other traveling as a necessary
incident of her employment.
8. Confidentiality.
(a) The Executive acknowledges that during the course of her employment with the
Company she may have access to confidential and/or proprietary technical,
scientific or business information relating to the Company's research, product
development, marketing, sales, services, financing and other business or
scientifically related activities and that it is vital to the Company to
preserve the confidentiality of its technical, scientific and business affairs
and to maintain its intellectual properties, including trade secrets, know-how
and patent applications.
(b) Accordingly, as a condition of the Executive's employment, the Company and
the Executive agree as follows:
1. In this Agreement,
"Confidential Information" means any information or data
relating to, arising out of or in connection with the
research, technology, intellectual property, know-how,
improvements, equipment, formulas, designs, processes, product
development, packaging, products, distribution methods,
marketing, customers, financing and/or business of the
Company;
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"Company" means Nymox Pharmaceutical Corporation, Nymox Corporation
and their affiliates and includes their successors and assigns;
"Company Property" means any property owned by the Company and
includes (but not limited to):
(a) laboratory equipment, reagents, samples,
specimens, standards, protocols, requisitions, test
results, drug candidates, cell lines, notebooks,
papers, presentations and publications;
(b) computer equipment, software, files, disks,
cd-roms, tapes and all other electronic means of
storing data or information;
(c) cell phones, pagers, answering machines,
telephones and other telecommunication equipment;
(d) office equipment, office furniture,
correspondence, memoranda, reports, faxes, files,
books, magazines, stationary, messages, e-mails,
contracts, patent documents, customer lists, supplier
lists, brochures, marketing material, displays,
posters and financial reports; and
(e) credit cards, calling cards, bank cards,
checkbooks, deposit books, bank statements, financial
records, canceled checks, receipts, invoices, bills
and accounts.
2. The Executive shall keep in strict confidence any Confidential
Information and not to disclose it to any third party except as
required by law, regulation, legal process or other governmental
authority, as permitted this Agreement or with the written consent of
the President of the Company.
3. The Executive shall take reasonable care to maintain all
Confidential Information in confidence and shall inform the Company
immediately upon the discovery of any unauthorized disclosure or use of
any Confidential Information and take reasonable steps to prevent any
further unauthorized disclosure or use.
4. The Executive shall not use any Confidential Information for any
purpose other than the performance of her/his duties as an officer and
employee of the Company.
5. Confidential Information shall not include information which:
(i) was known to the Executive prior to receipt by Executive of any
Confidential Information hereunder;
(ii) was known or has become known to the public through lawful
disclosure; or
(iii) a third party having the right to disclose such information has
lawfully disclosed such information to the Executive.
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9. Company Property.
(a) The Executive acknowledges and agrees that the Company owns completely
(i) all past, present and future patent rights, trade secrets,
know-how, copyright, trademarks, industrial designs and other
intellectual property rights related to, connected with or
arising out of scientific projects undertaken at or by the
Company or funded by the Company, and
(ii) all patent, trademark, copyright, trade secrets, know-how,
industrial designs and other intellectual property rights to
scientific, research and development or commercial work
already performed, being performed or to be performed in the
future by the Executive in the course of or during the term of
her employment at the Company.
(b) The Executive agrees to disclose to the Company in a timely manner any
inventions, discoveries, ideas or research findings, whether patentable or not,
relating to, connected with or arising out of her employment with the Company or
related to or connected with the business of the Company.
(c) The Executive agrees to assign completely, exclusively and irrevocably to
the Company any and all rights, interests and title to any inventions,
discoveries and ideas, whether patentable or not, (including, but not limited to
patent applications, patents, trademarks, copyrights, trade secrets, know-how,
industrial designs, or other intellectual property rights) relating to,
connected with or arising out of her employment with the Company, related to or
connected with the business of the Company, or conceived or reduced to practice
at any time during the Executive's employment by the Company, either solely or
jointly with others and whether or not developed on the Executive's own time or
with the resources of the Company.
The Executive further agrees, on request by the Company, both during the term of
her employment with the Company and after termination of that employment, to
execute any patent, copyright, trademark, trade secrets or industrial design
assignments, applications, certificates, affidavits or other documents that, in
the opinion of the Company, are necessary to secure, protect or evidence the
Company's intellectual property rights.
(d) The Executive shall not use Company Property except for the purposes of
employment or as otherwise authorized. The Executive shall not, except for the
Company's use, copy or duplicate any Company documents or property, nor remove
them from the Company's facilities, nor use any information concerning them
except for the Company's benefit, either during her employment or thereafter.
(e) Upon the Company's request or upon termination of employment, the Executive
shall promptly:
(i) return any Confidential Information that is in tangible form
and any Company Property in her possession or under her
control without making or retaining any copies; and
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(ii) provide any passwords to computer files, systems or networks
or codes for any research or clinical trials used by the
Executive in the course of her employment.
(f) Nothing in this Employment Agreement shall be construed as transferring,
assigning or conveying to the Company any rights, interests and title to any
inventions, discoveries, patent applications, patents, trademarks, copyrights,
trade secrets, know-how, industrial designs, or other intellectual property
rights that the Executive and/or Serex, Inc. had prior to the date of this
Agreement, other than those intellectual property rights and interests relating
to the Company's AD7C(TM) test.
10. Conflicts of Interest.
(a) During the term of her employment with the Company, the Executive
agrees:
(i) not to engage in any other employment or business or act as an
officer or director of or consult with any other company,
business or person, other than a non-profit corporation or
organization, except with the prior approval of the President
of the Company, which approval will not be unreasonably
withheld;
(ii) to promptly disclose to the President of the Company any
business opportunities that come to the attention of the
Executive and that relate to the pharmaceutical or diagnostic
business, including (but not limited to) research proposals,
licensing opportunities, patent applications and assignments,
co-marketing ventures, technology transfers and employment
opportunities.
(b) The Executive agrees that, during the term of her employment and for one
year after the date of termination of employment unless such termination is
pursuant to paragraphs 13(a)(iv) or 13(a)(v), she will not, directly or
indirectly, own, manage, operate, control or participate in the ownership,
management, operation or control of, or be connected as an officer, executive,
partner, director or otherwise with, or have any financial interest in, or aid
or assist anyone else in the conduct of, any business that markets a diagnostic
for Alzheimer's disease or that is substantially similar to or competitive with
the Company's present business or any other business at which the Company may
substantially engage during the term of the Executive's employment, provided,
however, that the Executive may own not more than 4.9% of the equity securities
of a corporation, trading on a public stock exchange .
(c) The Executive further agrees that, during the term of her employment and for
one year after the date of termination of employment, she will not solicit or
assist, directly or indirectly, any employee of the Company to terminate his or
her employment with the Company or to divert any intellectual property, trade
secrets, business or customers from the Company.
(d) The Executive agrees that all restrictions in this article are reasonable,
valid and do not go beyond what is necessary to protect the interests of the
Company, and waives all defenses to their strict enforcement. The Executive
acknowledges that the market for diagnostic tests and kits and for therapeutic
drugs that the Company is presently marketing and/or developing is worldwide and
that any specific geographic restriction in this article would be unenforceable.
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(e) The provisions of this article are only intended to safeguard against the
Executive participating in competitive endeavors against the Company and shall
not in any way restrict or limit the Executive from engaging in, employment by
or consulting with subsequent businesses which are not in direct competition
with the Company. In particular, the Executive may engage in the development of
immunoassays, strip assays and diagnostic kits that are not designed to detect a
unique or proprietary marker for any condition for which the Company was
developing diagnostic tests, kits or assays during the term of her employment.
(f) The parties agree that if any covenant or provision in this article is
determined to be void or unenforceable at law due to period of time,
geographical area, or otherwise, then such covenant or provision shall be
reduced in scope or amended, as to term, geographical area or otherwise, to the
extent required so that the covenant or provision, as so reduced or amended, is
enforceable at law and the unenforceable part shall be deemed to be severed from
the balance, which balance shall survive and be of full force and effect.
11. Communications.
(a) The Executive agrees that the Company may treat any communications
(including, but not limited to, mail, telephone messages, e-mail messages and
voice mail) or item (including, but not limited to, reagents, specimens, and
samples) addressed to the Executive and received at one of the Company's
offices, laboratories or research facilities or through its e-mail, voice mail
or other telecommunication systems as a communication or item relating to,
arising out of or in connection with the Company's business and may open, review
and/or inspect the communication or item in order to determine, in its sole
discretion, whether the communication or item relates to, arises out of or is
connected with Nymox's business. If the Company so determines, then the Company
may retain and use the communication or item as it sees fit.
(b) The Executive agrees not to release or disclose to any third party any
publications, presentations or press releases relating to, arising out of or in
connection with the Company's business, research and development, technology or
collaborations with other researchers, institutions or businesses without the
prior approval of the President of the Company.
12. Provisions Which Survive the Termination of this Agreement.
The provisions of this Agreement contained in Articles 8 (Confidentiality), 9
(Company Property), 10 (Conflicts of Interest) and 11 (Communications) shall
survive the termination of the Executive's employment.
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13. Termination of Employment.
(a) The Executive's employment shall terminate, or be subject to termination,
prior to the term specified in Article 2 hereof, as follows:
(i) The Executive's employment shall terminate upon death.
(ii) If, during the term of this Agreement, the Executive has a
Disability, the Company may, at any time after the Executive has a
Disability, terminate the Executive's employment by written notice to
her. In the event that the Executive's employment is terminated, this
Agreement shall terminate except that the Company shall continue to pay
the Executive's salary for a period of six (6) months from the date of
termination of her employment and maintain her health care benefits for
the balance of the term of this Agreement, as if the Executive had not
been terminated for Disability. As used in this Agreement, "Disability"
shall mean the inability of the Executive to perform the Executive's
duties of employment for the Company, pursuant to the terms of this
Agreement, because of physical or mental disability, where such
disability shall have existed for a period of more than 90 consecutive
days or an aggregate of 120 days in any 365-day period. The existence
of a Disability means that the Executive's mental or physical
disability substantially interferes with the performance of her
substantive duties for the Company as specified in this Agreement. The
fact of whether or not a Disability exists hereunder shall be
determined by professionally qualified medical experts selected by the
Board and reasonably acceptable to the Executive or her agent.
(iii) The Company may, at any time, terminate the Executive's
employment for cause. For the purposes of this Agreement, the Company
shall have cause to terminate the Executive's employment hereunder
upon:
(A) the Executive engaging in misconduct which is injurious to
the Company;
(B) any material breach of this Agreement by the Executive
that is not cured by the Executive within thirty (30) days
after the Company has given the Executive written notice
specifying the particulars of the breach of the Agreement and
its intent to terminate her employment if the breach is not
cured; or
(C) the Executive's conviction of a felony or a plea by the
Executive of nolo contendere to a felony.
(iv) The Company may terminate the Executive's employment without cause
upon forty-five (45) days prior written notice to the Executive or upon
payment of forty-five days salary in lieu of notice. Termination of the
Executive's employment by the Company for any reason, other than
specified in paragraphs 13(a)(i), (ii) or (iii) shall constitute
termination of this Agreement without cause.
(v) The Executive may terminate her employment for Good Reason upon
forty-five (45) days prior written notice to the Company. If the
Executive's employment is terminated pursuant to this Section,
13(a)(v), the Executive shall be entitled to receive those severance
payments and other benefits as if the Executive was terminated pursuant
to Section 13(a)(iv) of this Agreement. Good Reason means:
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(A) the assignment by the Company to the Executive of duties
which are materially different than those of the Vice
President of the Company as described in Article 6 of this
Agreement, where the Company has not resolved the Executive's
objections to the assignment within sixty (60) days after
written notice from the Executive specifying her objections to
the assignment and her intent to terminate her employment on
that ground if not resolved to her reasonable satisfaction;
and
(B) any material breach of this Agreement by the Company that
is not cured by the Company within thirty (30) days after the
Executive has given the Company written notice specifying the
particulars of the breach of the Agreement and her intent to
terminate her employment if the breach is not cured.
(b) In the event of the termination of the Executive's employment pursuant to
paragraphs 13(a)(iv) or 13(a)(v), the Executive shall be entitled to receive, in
lieu of any other compensation or payment as a result of such termination,
severance payments in an amount equal to the lesser of twelve months of the
Executive's salary and all other benefits provided to the Executive under this
Agreement at the time of termination or the balance of that salary remaining on
the term of this Agreement and all other benefits provided to the Executive
under this Agreement. The severance payments will be payable, as nearly as
practicable, in equal semimonthly installments and shall cease in the event the
Executive finds new employment in the pharmaceutical or diagnostic industry.
During the severance payment period, the Executive agrees to comply with the
provisions of paragraph 10(b).
(c) In the event of the termination of the Executive's employment, all payments
of salary and benefits under Articles 3 and 5 of this Agreement, other than
payments of salary or benefits owed or accruing to the Executive prior to the
termination, shall cease, and the Executive shall not be entitled to receive any
compensation, benefits or payment on account of such termination, except as
otherwise provided in paragraphs 13(a)(ii) and 13(b). The Executive shall be
entitled to receive those benefits which by their terms continue after
termination of employment in accordance with the terms of such benefits
applicable after termination of employment as required by applicable law.
14. Miscellaneous.
(a) Notices
Any notice or other communication required by this Agreement shall be in writing
and shall be effective if hand delivered or if sent by certified or registered
mail or by facsimile transmission to the following locations until notified
otherwise in writing.
Nymox Pharmaceutical Corporation
Attention: President
Nymox Pharmaceutical Corporation
0000 Xxxx. Xxxxxxxxx, Xxxxx 000
Xxxxx Xxxxxxx, Xxxxxx, Xxxxxx, X0X 0X0
FAX: (000) 000-0000
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The Executive:
Xxxxxx Xxxxxxxxxxx Xxxxx
c/o Serex, Inc.
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxxxx
FAX: 000-000-0000
A notice is effective on the date of delivery to the Party. Delivery is deemed
to have occurred on the day of delivery by courier, or upon facsimile
transmission with confirmation, or on the fifth day after the date of sending
the notice by registered mail.
(b) Governing Law
This Agreement shall be interpreted and enforced in accordance with the
substantive laws of the State of New Jersey. The Executive acknowledges that her
violation, or threatened violation, of the provisions of Articles 8
(Confidentiality), 9 (Company Property), 10 (Conflicts of Interest) and 11
(Communications) would cause the Company irreparable injury and, in addition to
any other remedies to which the Company may be entitled, the Company shall be
entitled to immediate injunctive relief in addition to any remedy available
through the arbitration procedures set out below in paragraph 14(c).
(c) Dispute Resolution
In the event of any controversy or claim arising out of or relating to any
provisions of this Agreement or the breach thereof, the Parties shall try to
settle those conflicts amicably between themselves. Should they fail to agree,
the matter in dispute shall be settled through arbitration conducted by and in
accordance with the rules of the American Arbitration Association ("A.A.A.").
Either Party may furnish the other party with a dated, written notice (the
"Arbitration Notice") indicating (i) intent to commence arbitration proceedings,
(ii) the nature, with reasonable detail, of the dispute, (iii) the amount
involved, if any, and (iv) the remedy sought. The arbitration shall be held at a
neutral place mutually agreeable to the parties. Within thirty (30) days of the
date of the Arbitration Notice, each party shall select one (1) Arbitrator, who
shall not be a current or former employee, agent, consultant or other
representative of either party; the two selected Arbitrators shall appoint a
third, neutral, Arbitrator.
The arbitration award shall be final and binding. Either party may enter any
such award in a court of the State of New Jersey having jurisdiction or may make
application to such court for judicial acceptance of the award and an order of
enforcement, as the case may be.
(d) Currency
All references to money in the Agreement refer to U.S. dollars and all payments
made under this Agreement shall be in that currency.
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(e) Partial Invalidity
If any provision of this Agreement be held invalid, illegal or unenforceable,
such invalidity, illegality or unenforceability shall not affect any other
provision of this Agreement and the Parties shall use reasonable efforts to
substitute a valid, legal and enforceable provision which, as far as
practicable, implements the purposes and intent of the provision held invalid,
illegal or unenforceable. If the Parties are unable to arrive at such a
substitute, this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained in it, provided that the
performance required under this Agreement with such a provision deleted remains
substantially consistent with the intent of the Parties.
(f) Waiver
Failure to require performance of any provision of this Agreement does not waive
a Party's right to demand compliance with that provision at a later time. Waiver
of any default shall not waive any other default.
(g) Entire Agreement
This Agreement contains the entire agreement between the Parties with respect to
the subject matter covered by this Agreement. No representations, whether oral
or written, made before this Agreement is executed shall amend this Agreement.
Any modification or amendment to this Agreement shall be in writing and signed
by an authorized officer of each Party.
(h) Inurement
This Agreement shall be binding upon and shall inure to the benefit of the
Company and the Executive and their respective heirs, successors, assigns,
permitted receivers and legal representatives.
(i) Language
The Company and the Executive have expressly requested that this Agreement and
any agreement, proceedings or documents thereto or referred to therein be
drafted and executed in the English language. Nymox et le Consultant ont
expressement exige que ce contrat ainsi que tous contrats, procedures ou
documents s'y rapportant ou qui y sont mentionnes soient rediges et signe en
langue anglaise.
IN WITNESS THEREOF, the undersigned have executed this Agreement as of the dates
set forth below:
ACCEPTED AND AGREED TO:
Nymox Pharmaceutical Corporation The Executive
/s/ Xxxx Xxxxxxxx /s/ Xxxxxx Xxxxxxxxxxx
-------------------------------- ---------------------------
Xxxx Xxxxxxxx Xxxxxx Xxxxxxxxxxx
President
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