EMPLOYMENT AGREEMENT OF DAVID B. HIRSCH EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit
10.2
EMPLOYMENT
AGREEMENT OF XXXXX X. XXXXXX
THIS
EXECUTIVE EMPLOYMENT AGREEMENT,
dated
as of May 14th,
2008
(the “Agreement”), by and between ORAGENICS,
INC.,
a
Florida corporation, (the “Company”), and XXXXX
X. XXXXXX (the
“Executive”).
WHEREAS,
the
Company is a biotechnology company currently engaged in the business of research
and development of proprietary technologies;
WHEREAS,
Executive has served as a consultant to since on or about April 23, 2008; and
WHEREAS,
the
Company wishes to assure itself of the continued services of the Executive
on a
non-interim basis for the period provided in this Agreement and the Executive
is
willing to serve in the employ of the Company for such period upon the terms
and
conditions hereinafter set forth.
NOW
THEREFORE,
in
consideration of the mutual covenants herein contained, the parties, intending
to be legally bound, hereby agree as follows:
1.
EMPLOYMENT
The
Company hereby agrees to employ the Executive upon the terms and conditions
herein contained, and the Executive hereby agrees to accept such employment
for
the term described below. The Executive agrees to serve as the Company’s
Executive Vice President for Administration, a Non-Officer of the Company during
the term of this Agreement and shall report only to the Company’s Chief
Executive Officer.
Throughout
the term of this Agreement, the Executive shall devote his best efforts and
substantially all of his business time and services to the business and affairs
of the Company.
2.
TERM OF AGREEMENT
The
one
(1) year initial term of the employment of Executive under this Agreement
shall commence as of the date set forth above (the “Effective Date”). After the
expiration of such initial one year employment period, the term of the
Executive’s employment hereunder shall automatically be extended without further
action by the parties for successive one (1) year renewal terms, provided
that if either party gives the other party at least thirty (30) days
advance written notice of his or its intention to not renew this Agreement
for
an additional term, the Agreement shall terminate upon the expiration of the
current term.
Notwithstanding
the foregoing, the Company shall be entitled to terminate this Agreement
immediately, subject to a continuing obligation to make any payments required
under Section 5 below, if the Executive (i) becomes disabled as
described in Section 5(b), (ii) is terminated for Cause, as defined in
Section 5(c), or (iii) voluntarily terminates his employment before
the current term of this Agreement expires, as described in Section 5(d).
3.
SALARY AND BONUS
The
Executive shall receive an annual base salary during the term of this Agreement
at a rate of not less than $150,000, payable in installments consistent with
the
Company’s normal payroll schedule. The Board shall review this base salary at
annual intervals, and may adjust the Executive’s annual base salary from time to
time as the Board deems to be appropriate.
The
Executive shall also be eligible to receive bonuses from the Company during
the
term of this Agreement in the discretion of the Compensation Committee of the
Board of Directors.
4.
ADDITIONAL COMPENSATION AND BENEFITS
The
Executive shall receive the following additional compensation and welfare and
fringe benefits:
(a)
Stock
Options. Pursuant to a Stock Option Agreement of even date the Executive is
being granted no statutory stock options with respect to 500,000 shares of
common stock under the Company’s Amended and Restated 2002 Stock Option and
Incentive Plan (the “Stock Option Plan”).
(b)
Vacation. The Executive shall be entitled to up to four (4) weeks of
vacation during each year during the term of this Agreement and any extensions
thereof, prorated for partial years. Unused vacation at the end of each year
of
employment hereunder, if any, time shall not be carried over.
(c)
Business Expenses. The Company shall reimburse the Executive for all reasonable
expenses he incurs in promoting the Company’s business, including expenses for
travel, entertainment of business associates, service and usage charges for
business use of cellular phones and similar items, upon presentation by the
Executive from time to time of an itemized account of such expenditures.
In
addition to the benefits provided pursuant to the preceding paragraphs of this
Section 4, the Executive shall be eligible to participate in such other
executive compensation and retirement plans of the Company as are applicable
generally to other officers, and in such welfare benefit plans, programs,
practices and policies of the Company as are generally applicable to other
executives of the Company.
5.
PAYMENTS UPON TERMINATION
(a)
Involuntary Termination. If the Executive’s employment is terminated by the
Company during the term of this Agreement, the Executive shall be entitled
to
receive his base salary accrued through the date of termination. The Executive
shall also receive any nonforfeitable benefits already earned and payable to
him
under the terms of any deferred compensation, incentive or other benefit plan
maintained by the Company, payable in accordance with the terms of the
applicable plan.
If
the
termination is not for death as described in Section 7, disability as
described in paragraph (b), for Cause as described in paragraph (c) or a
voluntary termination by the Executive as described in paragraph (d), or the
Company notifies Executive of its intent not to renew this Agreement the Company
shall also be obligated to make a series of nine (9) equal monthly payments
to the Executive equal to one-twelfth (1/12th) of the Executive’s annual
base salary, as in effect on the date of termination. In addition, any unvested
stock options held by the Executive shall become vested and exercisable for
a
period set forth in the Stock Option Plan for such events following the date
of
termination.
(b)
Disability. The Company shall be entitled to terminate this Agreement, if the
Board determines that the Executive has been unable to attend to his duties
for
at least ninety (90) days in any 12 month period because of a medically
diagnosable physical or mental condition, and has received a written opinion
from a physician acceptable to the Board that such condition prevents the
Executive from resuming full performance of his duties and is likely to continue
for an indefinite period. Upon such termination, the Company shall pay to
Executive a monthly disability benefit equal to one-twelfth (1/12th) of his
current annual base salary at the time he became permanently disabled. Payment
of such disability benefit shall commence on the last day of the month following
the date of the termination by reason of permanent disability and cease with
the
earliest of (i) the month in which the Executive returns to active
employment, either with the Company or otherwise, (ii) the end of the
initial term of this Agreement, or the current renewal term, as the case may
be,
or (iii) the fourth month after the date of the termination. Any amounts
payable under this Section 5(b) shall be reduced by any amounts paid to the
Executive under any long-term disability plan or other disability program or
insurance policies maintained or provided by the Company.
(c)
Termination for Cause. If the Executive’s employment is terminated by the
Company for Cause, the amount the Executive shall be entitled to receive from
the Company shall be limited to his base salary accrued through the date of
termination, and any nonforfeitable benefits already earned and payable to
the
Executive under the terms of deferred compensation or incentive plans maintained
by the Company.
For
purposes of this Agreement, the term “Cause” shall be limited to (i) any
action or omission by the Executive involving willful disloyalty to the Company,
such as embezzlement, fraud, misappropriation of corporate assets or a breach
of
the covenants set forth in Sections 9, 10 or 11 below; or (ii) the
Executive being convicted of a felony; or (iii) the Executive being
convicted of any lesser crime or offense committed in connection with the
performance of his duties hereunder or involving moral turpitude, fraud or
that
causes the Company a substantial and material financial detriment; (iv) the
material failure or refusal by the Executive to substantially perform his duties
hereunder as directed by the Board (other than any such failure or refusal
resulting from the Executive’s incapacity due to physical or mental disability);
or (v) an act or omission of the Executive which constitutes a material
breach of this Agreement which is not cured as specified below. Notwithstanding
the foregoing, no termination pursuant to subsection (iv) or (v) shall
be treated as termination for cause unless the Board has provided Executive
with
at least thirty (30) days prior written notice specifying in reasonable
detail the alleged breach and giving the Executive a reasonable opportunity
to
correct such breach.
(d)
Voluntary Termination by the Executive. If the Executive resigns or otherwise
voluntarily terminates his employment before the end of the current term of
this
Agreement, the amount the Executive shall be entitled to receive from the
Company shall be limited to his base salary accrued through the date of
termination, and any nonforfeitable benefits already earned and payable to
the
Executive under the terms of any deferred compensation or incentive plans of
the
Company.
6.
EFFECT OF CHANGE IN CORPORATE CONTROL
(a)
In
the event of a Change in Corporate Control, the vesting of any stock options
or
other awards granted to the Executive under the terms of the Company’s Stock
Option Plan shall become immediately vested in full and, in the case of stock
options, exercisable in full.
In
addition, if, at any time during the period of six (6) consecutive months
following the occurrence of a Change in Corporate Control, the Executive is
involuntarily terminated (other than for Cause) by the Company, the Executive
shall be entitled to receive as severance pay in lieu of the monthly payments
described in Section 5(a) above, a series of twenty-four (24) equal
monthly payments to the Executive equal to one-twelfth ( 1/12th) of
the Executive’s annual base salary in effect at the time of the Change in
Corporate Control.
(b)
For
purposes of this Agreement, a “Change in Corporate Control” shall include any of
the following events:
(1)
The
acquisition in one or more transactions of more than thirty percent
(30%) of the Company’s outstanding Common Stock by any corporation, or
other person or group (within the meaning of Section 14(d)(3) of the
Securities Exchange Act of 1934, as amended);
(2)
Any
merger or consolidation of the Company into or with another corporation in
which
the Company is not the surviving entity, or any transfer or sale of
substantially all of the assets of the Company or any merger or consolidation
of
the Company into or with another corporation in which the Company is the
surviving entity and in connection with such merger or consolidation, more
than
fifty percent of the outstanding shares of Common Stock shall be changed into
or
exchanged for other stock or securities of any other person, or cash, or any
other property.
(3)
Any
election of persons to the Board of Directors which causes a majority of the
Board of Directors to consist of persons other than (i) persons who were
members of the Board of Directors on the Effective Date, and (ii) persons
who were nominated for election as members of the Board by the Board of
Directors (or a Committee of the Board) at a time when the majority of the
Board
(or of such Committee) consisted of persons who were members of the Board of
Directors on the Effective Date; provided, that any person nominated for
election by the Board of Directors composed entirely of persons described in
(i) or (ii), or of persons who were themselves nominated by such Board,
shall for this purpose be deemed to have been nominated by a Board composed
of
persons described in (i).
(4)
Any
person, or group of persons, announces a tender offer for at least thirty
percent (30%) of the Company’s Common Stock.
provided
that,
no
acquisition of stock by any person in a public offering or private placement
of
the Company’s common stock or other transaction approved by the Company’s Board
of Directors shall be considered a Change in Corporate Control.
7.
DEATH
If
the
Executive dies during the term of this Agreement, the Company shall pay to
the
Executive’s estate a lump sum payment equal to the sum of the Executive’s base
salary accrued through the date of death plus the total unpaid amount of any
bonuses earned with respect to the fiscal year of the Company most recently
ended. In addition, the death benefits payable by reason of the Executive’s
death under any retirement, deferred compensation or other employee benefit
plan
maintained by the Company shall be paid to the beneficiary designated by the
Executive in accordance with the terms of the applicable plan or plans.
8.
WITHHOLDING
The
Company shall, to the extent permitted by law, have the right to withhold and
deduct from any payment hereunder any federal, state or local taxes of any
kind
required by law to be withheld with respect to any such payment.
9.
PROTECTION OF CONFIDENTIAL INFORMATION
The
Executive agrees that he will keep all confidential and proprietary information
of the Company or relating to its business (including, but not limited to,
information regarding the Company’s methods of operation, product development
and trade secrets) confidential, and that he will not (except with the Company’s
prior written consent), while in the employ of the Company or thereafter,
disclose any such confidential information to any person, firm, corporation,
association or other entity, other than in furtherance of his duties hereunder,
and then only to those with a “need to know.” The Executive shall not make use
of any such confidential information for his own purposes or for the benefit
of
any person, firm, corporation, association or other entity (except the Company)
under any circumstances during or after the term of his employment. The
foregoing shall not apply to any information which is already in the public
domain, or is generally disclosed by the Company or is otherwise in the public
domain at the time of disclosure.
The
Executive recognizes that because his work for the Company will bring him into
contact with confidential and proprietary information of the Company, the
restrictions of this Section 9 are required for the reasonable protection
of the Company and its investments and for the Company’s reliance on and
confidence in the Executive.
10.
COVENANT NOT TO COMPETE
The
Executive hereby agrees that he will not, either during the employment term
or
during the period of twelve (12) months from the time the Executive’s
employment under this Agreement is terminated, engage in any business activities
on behalf of any enterprise which competes with the Company in the specific
business or businesses then conducted by the Company in the United States or
an
other geographic area the Company conducts business. The Executive will be
deemed to be engaged in such competitive business activities if he participates
in such a business enterprise as an employee, officer, director, consultant,
agent, partner, proprietor, or other participant; provided that the ownership
of
no more than 2 percent of the stock of a publicly traded corporation engaged
in
a competitive business shall not be deemed to be engaging in competitive
business activities.
The
Executive agrees that he shall not for himself or for any other person, firm,
corporation, partnership or other entity, for a period of twelve
(12) months from the time his employment under this Agreement ceases (for
whatever reason), directly or indirectly,
(i)
solicit or employ any employee, former employee who was employed by the Company
in the preceding 90 days or full-time consultant of the Company for the purposes
of hiring or retaining such employee or consultant,
(ii)
contact any present or prospective client, customer or vendor of the Company
to
solicit such a person to enter into a contract or arrangement with any
competitor of the Company, or
(iii)
make known the names and/or addresses of such clients, customers or vendors
or
any information relating in any manner to the Company’s trade or business
relationships with such clients, customers or vendors.
11.
OWNERSHIP OF DEVELOPMENTS
All
copyrights, patents, trade secrets, or other intellectual property rights
associated with any ideas, concepts, techniques, inventions, processes, or
works
of authorship develop or created by Executive during the course of performing
work for the Company or its clients (collectively, the “Work Product”) shall
belong exclusively to the Company and shall, to the extent possible, be
considered a work made by the Executive for hire for the Company within the
meaning of Title 17 of the United States Code. To the extent the Work Product
may not be considered work made by the Executive for hire for the Company,
the
Executive agrees to assign and automatically assigns at the time of creation
of
the Work Product, without any requirement of further consideration, any right,
title, or interest the Executive may have in such Work Product. Upon the request
of the Company, the Executive shall take such further actions, including
execution and delivery of instruments of conveyance, as may be appropriate
to
give full and proper effect to such assignment.
Solely
for purposes of Sections 9, 10, 11 and 12 hereof only, the term “Company” also
shall include any existing or future subsidiaries of the Company that are
operating during the time periods described herein and any other entities that
directly or indirectly, through one or more intermediaries, control, are
controlled by or are under common control with the Company during the periods
described herein.
12.
INJUNCTIVE RELIEF
The
Executive acknowledges and agrees that it would be difficult to fully compensate
the Company for damages resulting from the breach or threatened breach of the
covenants set forth in Sections 9, 10 and 11 of this Agreement and accordingly
agrees that the Company shall be entitled to temporary and injunctive relief,
including temporary restraining orders, preliminary injunctions and permanent
injunctions, to enforce such provisions in any action or proceeding instituted
in the United States District Court for the Middle District of Florida or in
any
court in the State of Florida having subject matter jurisdiction. This provision
with respect to injunctive relief shall not, however, diminish the Company’s
right to claim and recover damages.
It
is
expressly understood and agreed that although the parties consider the
restrictions contained in this Agreement to be reasonable, if a court determines
that the time or territory or any other restriction contained in this Agreement
is an unenforceable restriction on the activities of the Executive, no such
provision of this Agreement shall be rendered void but shall be deemed amended
to apply as to such maximum time and territory and to such extent as such court
may judicially determine or indicate to be reasonable.
The
Executive acknowledges and confirms that (a) the restrictive covenants
contained in Sections 9 and 10 hereof are reasonably necessary to protect the
legitimate business interests of the Company, and (b) the restrictions
contained in Sections 9 and 10 hereof (including without limitation the length
of the term of the provisions of
Sections
9 and 10 hereof) are not overbroad, overlong, or unfair and are not the result
of overreaching, duress or coercion of any kind. The Executive further
acknowledges and confirms that his full, uninhabited and faithful observance
of
each of the covenants contained in Sections 9 and 10 hereof will not cause
him
any undue hardship, financial or otherwise, and that enforcement of each of
the
covenants contained herein will not impair his ability to obtain employment
commensurate with his abilities and on terms fully acceptable to him or
otherwise to obtain income required for the comfortable support of him and
his
family and the satisfaction of the needs of his creditors. The Executive
acknowledges and confirms that his special knowledge of the business of the
Company is such as would cause the Company serious injury or loss if he were
to
use such ability and knowledge to the benefit of a competitor or were to compete
with the Company in violation of the terms of Sections 9 and 10 hereof. The
Executive further acknowledges that the restrictions contained in Sections
9 and
10 hereof are intended to be, and shall be, for the benefit of and shall be
enforceable by, the Company’s successors and assigns.
If
the
Executive shall be in violation of any provision of Sections 9 and 10, then
each
time limitation set forth in the applicable section shall be extended for a
period of time equal to the period of time during which such violation or
violations occur. If the Company seeks injunctive relief from such violation
in
any court, then the covenants set forth in Sections 9 and 10 shall be extended
for a period of time equal to the pendency of such proceeding including all
appeals by the Executive.
13.
SEPARABILITY
If
any
provision of this Agreement shall be declared to be invalid or unenforceable,
in
whole or in part, such invalidity or unenforceability shall not affect the
remaining provisions hereof which shall remain in full force and effect.
14.
ASSIGNMENT
This
Agreement shall be binding upon and inure to the benefit of the heirs and
representatives of the Executive and the assigns and successors of the Company,
but neither this Agreement nor any rights hereunder shall be assignable or
otherwise subject to hypothecation by the Executive.
15.
ENTIRE AGREEMENT
This
Agreement represents the entire agreement of the parties and shall supersede
any
and all previous contracts, arrangements or understandings between the Company
and the Executive. The Agreement may be amended at any time by mutual written
agreement of the parties hereto.
16.
GOVERNING LAW
This
Agreement shall be construed, interpreted, and governed in accordance with
the
laws of the State of Florida, other than the conflict of laws provisions of
such
laws.
17.
COUNTERPARTS AND FACSIMILE.
This
Agreement may be executed in two (2) counterparts and by facsimile of
electronic transmission, each of which shall be considered an original.
IN
WITNESS WHEREOF, the Company has caused this Agreement to be duly executed,
and
the Executive has hereunto set his hand, as of the day and year first above
written.
| ORAGENICS, INC. | ||
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/s/
Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, CEO & President |
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| EXECUTIVE: | ||
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/s/
Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx |
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ADDENDUM
TO EXECUTVE EMPLOYMENT AGREEMENT
THIS
ADDENDUM TO THE EXECUTIVE EMPLOYMENT AGREEMENT,
dated
as of June 27th,
2008
(the “Addendum”), by and between ORAGENICS,
INC.,
a
Florida corporation, (the “Company”), and XXXXX
X. XXXXXX (the
“Executive”)
WHEREAS,
on May
14th,
2008,
the parties executed an Executive Employment Agreement, (hereafter referred
to
as the “Agreement”),
WHEREAS,
on May
27th,
2008,
the Board of Directors of The Company promoted Xxxxx X. Xxxxxx from Executive
Vice President of Administration, a Non-Officer of the Company, to Chief
Operating Officer and Chief Financial Officer of the Company,
WHEREAS,
the
parties desire to modify the terms of the Agreement to reflect Xx. Xxxxxx’x
position as an Officer of the Company,
NOW
THEREFORE,
in
consideration of the mutual covenants herein contained and in the Agreement,
the
parties, intending to be legally bound, hereby agree as follows:
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1.
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The
Agreement shall be modified as
follows:
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a.
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Section
1 of the Agreement shall now state:
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The
Company hereby agrees to employ the Executive upon the terms and conditions
herein contained, and the Executive hereby agrees to accept such employment
for
the term described below. The Executive agrees to serve as the Company’s Chief
Operating Officer and Chief Financial Officer during the term of this Agreement
and shall report only to the Company’s Board of Directors. In such capacity, the
Executive shall have such powers and responsibilities consistent with his
position as the Chief Operating Officer and Chief Financial Officer and as
the
Board of Directors may assign to him.
Throughout
the term of this Agreement, the Executive shall devote his best efforts and
substantially all of his business time and services to the business and affairs
of the Company.
IN
WITNESS WHEREOF, the Company has caused this Addendum to be duly executed,
and
the Executive has hereunto set his hand, as of the day and year first above
written.
| ORAGENICS, INC. | ||
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/s/
Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, CEO & President |
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| EXECUTIVE: | ||
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/s/
Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx |
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