AMENDED EMPLOYMENT AGREEMENT
Exhibit 10.1
AMENDED EMPLOYMENT AGREEMENT
_____________________________________
THIS AGREEMENT dated this 21st day of October, 2024, nun pro tunc January 1, 2024, is:
| BETWEEN: | SUNSHINE BIOPHARMA INC., a Colorado corporation having its principal place of business located at 000 Xxx Xxxx Xxx, XX0 Xxxxx 000, Xxxx Xxxxxxxxxx, XX 00000 (hereinafter referred to as the “COMPANY”); |
| AND: | Xx. Xxxxx X. Xxxxxxx, residing at 000 Xxx Xxxxxxxxxx, Xxxxx, Xxxxxx, X0X 0X0, Xxxxxx (hereinafter referred to as the “EMPLOYEE”); |
(The COMPANY and the EMPLOYEE are hereinafter collectively referred to as the “PARTIES”)
WHEREAS, the COMPANY and EMPLOYEE have previously entered into that certain Employment Agreement dated April 8, 2022 and now wish to amend said Agreement and replace the same in its entirety with this Amended Employment Agreement (the “Agreement”);
WHEREAS, EMPLOYEE is currently the Chief Executive Officer of both the COMPANY and Xxxx Pharma Inc.;
WHEREAS, the PARTIES wish to set out in writing the terms and conditions of employment agreed to by the PARTIES with respect to the positions held by the EMPLOYEE;
WHEREAS, the PARTIES have the capacity to exercise all rights required for the conclusion and performance of this Agreement;
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
| 1. | EMPLOYMENT |
| 1.1 | Position and Duration |
The COMPANY hereby agrees to employ the EMPLOYEE as CEO of both Sunshine Biopharma Inc. and Xxxx Pharma Inc.
The EMPLOYEE will commence work as of January 1, 2024 for an indefinite period of time.
The EMPLOYEE will devote 90% of his time for Xxxx Xxxxxx Inc.’s affairs.
The EMPLOYEE will report to the Board of Directors of both Sunshine Biopharma Inc. and Xxxx Pharma Inc.
| 1.2 | Standard Work Week |
The EMPLOYEE’s normal work week is Monday to Friday.
| 1.3 | Main Duties and Responsibilities |
The duties and responsibilities of the EMPLOYEE shall be as described in the Position Description attached hereto as Schedule A, which is non exhaustive and may be changed by the COMPANY at any time.
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| 1.4 | Place of Employment |
The EMPLOYEE’s place of work shall be located at 0000 Xxxxxxxxx Xxxxxx-Xxxxxx, Xxxxxxxx, Xxxxxx, X0X 0X0, at the time of signing or at any other place required for the operation of the COMPANY’s business and for the performance of the EMPLOYEE’s duties. The EMPLOYEE will be required to travel regularly and for the majority of his time in the performance of his work with the COMPANY.
| 2. | COMPENSATION AND OTHER BENEFITS |
| 2.1 | Salary |
The annual base salary (Base Salary) payable by the COMPANY to the EMPLOYEE is Five Hundred Forty-Three Thousand Seven Hundred Fifty-Three Dollars Canadian ($543,753 CAD) and is subject to applicable payroll deductions.
The Base Salary shall be paid by the COMPANY to the EMPLOYEE in 26 equal installments by bank deposit every two weeks.
The Base Salary will be reviewed annually by the COMPANY’s Compensation Committee and Board of Directors, to determine if Base Salary should be increased in light of increase in cost of living. The minimum annual Base Salary increase shall be in accordance with the US Consumer Price Index or 5%, whichever is higher, with the first annual increase to take effect as of January 1, 2025.
EMPLOYEE will be eligible to participate in all of the COMPANY's benefit plans, including stock option plan, health benefits, life insurance, retirement plans, as well as any other plan offered by the COMPANY.
EMPLOYEE will also be eligible to receive an annualized bonus in an amount to be determined in the sole discretion of the COMPANY’s Board of Directors.
EMPLOYEE will be entitled to reimbursement from the COMPANY for all reasonable and customary expenses incurred in performing services to the COMPANY under this Agreement, including travel and entertainment expenses and other out-of-pocket expenses provided that EMPLOYEE shall submit receipts or reasonable documentation with respect to such expenses.
| 2.2 | Vacation |
The EMPLOYEE is entitled to 4 weeks of paid vacation per year, which will be pro-rated for partial years of service. The reference period for vacation calculation purposes is May 1st of each year to April 30th of the following year.
Vacations may be taken at a time agreed upon with the COMPANY’s Board of Directors, taking into account operational requirements of the COMPANY and the EMPLOYEE’s preferences.
| 3. | SPECIAL PROVISIONS |
| 3.1 | Exclusivity; No Conflict of Interest |
The EMPLOYEE undertakes to devote all of his time and attention to the performance of his duties with the COMPANY. Therefore, while employed by the COMPANY, the EMPLOYEE agrees not to engage in any other employment or in any commercial, professional or volunteer activity in any capacity, whether paid or unpaid, unless prior written permission is obtained from the COMPANY.
In all circumstances, the EMPLOYEE must avoid any situation that could be directly or indirectly interpreted as creating a conflict of interest, in particular by accepting payment or any form of compensation from a third party in the course of his employment.
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| 3.2 | Intellectual Property |
In consideration of this Agreement and its use by the COMPANY, the EMPLOYEE agrees that all COMPANY technology, which includes all inventions, intellectual property (including but not limited to patents, copyrights, trade secrets, industrial designs and trademarks), technologies, marketing strategies, discoveries, designs, developments, methods, modifications, improvements, processes, algorithms, databases, computer programs, formulas, modifications, improvements, processes, audio or visual works and other works or copyrights, whether recordable or not, which the EMPLOYEE makes, discovers, designs, reduces to practice or develops (in whole or in part, alone or jointly with others) in the course of performing employment duties with the COMPANY, or where such technology is based on or utilizes in any way confidential information of the COMPANY or its affiliates, customers or partners, shall be owned exclusively by the COMPANY (“COMPANY Technology”).
Should the EMPLOYEE, within two (2) years following the termination of the EMPLOYEE’s employment by the COMPANY, disclose to a third party any intellectual property conceived or made by the EMPLOYEE or should a patent, copyright or trademark application be filed by the EMPLOYEE or on behalf of the EMPLOYEE and if the intellectual property in question relates to the business of the COMPANY or the employment duties of the EMPLOYEE hereunder, then the intellectual property shall be presumed to have been conceived or made by the EMPLOYEE during the period of EMPLOYEE’s employment by the COMPANY and all of the EMPLOYEE’s rights, titles and interests therein shall be hereby assigned to the COMPANY.
During the EMPLOYEE’s employment at the COMPANY, the EMPLOYEE agrees to promptly disclose in writing to the COMPANY any COMPANY Technology, including any and all inventions, intellectual property (including, but not limited to, patent, copyright, trade secret, industrial design and trademark), technologies, marketing strategies, go-to-market strategies, discoveries, designs, developments, methods, modifications, improvements, processes, algorithms, databases, computer programs, formulae, audio or visual works and other works or authorship, whether or not registrable, that the EMPLOYEE creates, makes, conceives or reduces to practice (alone, jointly with others or under his direction), in the course of performing employment duties with the COMPANY, or where such technology is based upon or utilizes in any way confidential information of the COMPANY or its affiliates, customers or partners.
The EMPLOYEE acknowledges that the COMPANY is the exclusive owner of the COMPANY Technology. To confirm this ownership, and in consideration of this Agreement and the terms of employment herein, the EMPLOYEE will assign and does hereby assign to the COMPANY his entire right, title and interest in Canada and in all countries and territories worldwide and under any international conventions, in and to any and all COMPANY Technology, as well as the EMPLOYEE’s entire right, title and interest in and to any applications for registration of the COMPANY Technology which may be filed, including any and all divisional patent applications, continuations, continuations-in-part, and any and all patents which may issue or re-issue, and all trademarks and trademark applications, copyrights and copyright applications, and other intellectual property rights in all countries and territories worldwide and under any international conventions. The EMPLOYEE hereby waives, in consideration of this Agreement and the terms of employment herein, as against the COMPANY, its successors, assigns and licensees, all moral rights the EMPLOYEE may have or will acquire in respect of copyrightable works. The EMPLOYEE agrees to enforce the moral rights as against others as directed by and at the cost of the COMPANY.
The EMPLOYEE agrees not to make any claims against the COMPANY or any third party with respect to the COMPANY Technology, including claims relating to ownership, consideration for obligations relating to the assignment and execution of documents described above, and validity, as applicable.
The EMPLOYEE will cooperate with and assist the COMPANY, at the COMPANY’s expense, both during and after employment with the COMPANY, in obtaining, perfecting, maintaining, protecting, and enforcing the COMPANY’s rights in the COMPANY Technology.
Finally, the EMPLOYEE undertakes not to publish, distribute or otherwise make public any work, or participate directly or indirectly in the publication, distribution or making public of any work, literary or otherwise, in any form whatsoever, relating to or concerning, either principally or incidentally, the duties and responsibilities of the EMPLOYEE with the COMPANY or the operations of the COMPANY, unless the EMPLOYEE obtains the prior and express written authorization of the COMPANY to do so.
This Section 3.2 shall survive the termination of this Agreement.
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| 3.3 | Compliance with Policies and Employee Handbook |
The EMPLOYEE agrees to abide by the COMPANY’s policies, procedures and Employee Handbook, both present and future. A copy of the COMPANY's Employee Handbook was provided to the EMPLOYEE at the time of signing this Agreement.
| 4. | TERMINATION OF EMPLOYMENT |
The EMPLOYEE may terminate his employment at any time by giving at least ninety (90) days written notice to the COMPANY.
The COMPANY may terminate the EMPLOYEE’s employment at any time without notice or compensation in lieu thereof, or any other payment, if the COMPANY has cause for termination. Cause for termination includes, but is not limited to, gross misconduct, willful negligence in the performance of the EMPLOYEE’s duties, fraud, theft or other dishonesty, gross insubordination, serious misuse of the organization's property or name, a significant breach of the health and safety policy, physical violence or aggressive behaviour, harassment, discrediting the organization, breach of confidentiality, indecent or immoral acts, deliberate damage to property, and similar matters, as adjudicated by a court of law having competent jurisdiction.
In the event that the COMPANY wishes to terminate the EMPLOYEE’s employment without cause, it may do so by giving the EMPLOYEE a severance payment of $14 million USD cash plus the minimum notice of termination (or compensation in lieu thereof) to which the EMPLOYEE is entitled under the Quebec Act Respecting Labour Standards, the Civil Code of Quebec or similar successor legislation, less deductions required by law, in settlement of all claims or causes of action relating to the termination of the EMPLOYEE’s employment, so that no further notice or payment or indemnity of any kind will be required.
EMPLOYEE’s employment with the COMPANY may be terminated by the EMPLOYEE upon thirty (30) days prior written notice to the COMPANY for Valid Reason. In such case, the COMPANY will be obligated to pay EMPLOYEE $14 million USD in cash. “Valid Reason” means a valid reason for the EMPLOYEE to resign from employment upon the occurrence of any of the following events: (i) any material adverse change in the EMPLOYEE's job titles, duties, responsibilities, perquisites granted hereunder, or authority without his consent; and (ii) a material breach of this Agreement by the COMPANY, including without limitation, the failure to pay compensation or benefits when due or as specified hereunder.
In the event of EMPLOYEE’s death or disability, the employment of the EMPLOYEE shall be terminated and the COMPANY shall pay the EMPLOYEE (or his estate or legal representatives) $3 million USD in cash. In addition, the COMPANY shall reimburse any outstanding expenses of the EMPLOYEE in accordance with the conditions set forth herein. All compensation issued to EMPLOYEE prior to such event shall be unaffected.
| 5. | GENERAL PROVISIONS |
| 5.1 | Severability |
If any provision of this Agreement is held to be invalid, void or unenforceable, then the remainder of this Agreement, or the application of such provision to the PARTIES or to the circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and shall be enforced to the fullest extent permitted by law. The PARTIES agree to renegotiate any such invalid, void or unenforceable provision in good faith in order to provide a reasonably acceptable alternative consistent with the basic purposes of this Agreement.
| 5.2 | Entire Agreement |
This Agreement contains the complete understanding and agreement between the PARTIES with respect to the subject matter hereof, and supersedes all prior understandings and agreements, written or oral, between the PARTIES relating to the subject matter hereof.
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| 5.3 | Applicable Laws; Jurisdiction |
This Agreement shall be governed by the laws in force in the Province of Quebec (Canada). The PARTIES hereby submit all matters related to this Agreement to the non-exclusive jurisdiction of the courts of Quebec, district of Montreal.
| 5.4 | Assignment |
This Agreement cannot be assigned by the EMPLOYEE. The EMPLOYEE hereby agrees that the COMPANY may assign this agreement upon written notice to the EMPLOYEE.
| 5.5 | Independent Legal Advice |
The EMPLOYEE acknowledges that he has had the opportunity to obtain independent legal advice before signing this Agreement and acknowledges that he fully understands the nature of the agreement, which the EMPLOYEE is entering into voluntarily.
| 5.6 | Arbitration |
Any controversy or claim based on, arising out of or relating to the interpretation and performance of this Agreement or any termination hereof shall be solely and finally settled by arbitration under the rules of the American Arbitration Association, and judgment of the award rendered in the arbitration may be entered in any court having jurisdiction thereof. Any such arbitration shall be in New York City, NY. A decision of the arbitrator shall be final and binding upon the PARTIES and the arbitrator shall be authorized to apportion fees and expenses (including counsel fees and expense) as the arbitrator shall deem appropriate.
| 5.7 | Contesting the Agreement / Confession of Judgment |
The COMPANY hereby waives all claims it might have to contest the payments or other compensation obligations owed to the EMPLOYEE as set forth herein and hereby waives any defense it may have regarding this issue and confesses to judgement in connection therewith.
| 5.8 | Notice |
Any notice to be given hereunder shall be in writing and either delivered in person, by nationally recognized overnight courier, or by registered or certified first-class mail, postage prepaid, addressed to such address of the PARTIES as set forth in the COMPANY’s SEC filings.
| 5.9 | Headings |
The section headings in this Agreement are for convenience of reference only and shall not affect its interpretation.
| 5.10 | Counterparts |
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, by all which when together shall constitute one and the same Agreement.
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| 5.11 | Indemnification |
The COMPANY hereby indemnifies and holds EMPLOYEE harmless against any and all losses, claims, suits, judgments, damages, liabilities, costs or expenses, including reasonable legal fees and expenses, to which EMPLOYEE may become subject in connection with the good faith performance of EMPLOYEE’s responsibilities under this Agreement. This provision will survive any termination of this Agreement.
| 5.12 | Language |
The PARTIES have expressly requested and required that this agreement and all other related documents be drawn up in the English language. Les PARTIES conviennent et exigent expressément que ce contrat et tous les documents qui s’y rapportent soient rédigés en anglais.
IN WITHNESS THEREOF, THE PARTIES HAVE SIGNED on this 21st day of October 2024.
| THE COMPANY: SUNSHINE BIOPHARMA INC. | THE EMPLOYEE | |
| Xx. Xxxxxxx Xxxxxxx, CFO | Xx. Xxxxx X. Xxxxxxx |
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SCHEDULE A
JOB DESCRIPTION
EMPLOYEE’s title will be Chairman of the Board of Directors, President and Chief Executive Officer of Sunshine Biopharma Inc. Also, EMPLOYEE will hold the title of Chairman of the Board of Directors and Chief Executive Officer of Xxxx Pharma Inc. These positions will be located in Montreal and/or Varennes, Quebec, Canada or such other location mutually agreed upon, in which case the COMPANY shall provide EMPLOYEE a full relocation package. EMPLOYEE will report directly to the Board of Directors of Sunshine Biopharma Inc. and Xxxx Pharma Inc.
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