Exhibit 10.41
ENGAGEMENT AGREEMENT
Agreement made and entered into as of March 11, 2005 between Hemispherx
Biopharma, Inc. a Delaware Corporation (the "Company") and Xxxxxx X. Xxxxxxxxx,
of Virginia Beach, Virginia ("Xxxxxxxxx").
In consideration of the premises and the mutual covenants and conditions
herein contained the Company and Xxxxxxxxx hereby agree as follows:
1. Engagement. The Company engages Xxxxxxxxx and Xxxxxxxxx agrees to serve
the Company as its ----------- General Counsel It is expressly understood and
agreed that all of Xxxxxxxxx'x services hereunder are being provided as an
independent contractor and not as an employee for federal tax purposes.
2. Term. This Agreement shall commence, retroactively, as of January 1,
2005 and shall terminate on December 31, 2009 (the "Initial Termination Date")
unless sooner terminated in accordance with Section 5 hereof or unless renewed
as hereinafter provided (such period of service together with any extension
thereto hereinafter being called the "Service Period"). This Agreement shall be
automatically renewed for successive one (1) year periods after the original
Termination Date unless written notice of refusal to renew is given by one party
to the other at least ninety days prior to the initial Termination Date or the
expiration of any renewal period.
3. Fees.
(a) For his services to the Company the Company shall pay
Xxxxxxxxx an annual fee(the "Annual Fee") of $96,000.00, which
shall be subject to adjustments as provided in succeeding
subsection (c).
(b) The Annual Fee shall be paid in twelve equal monthly
installments ("Monthly Fees") on the last day of each month
during the Service Period commencing on January 1, 2005.
(c) On January 1, 2006, and on January 1 of each succeeding
calendar year during the Service Period the Annual Fee shall
be increased or decreased by a percentage equal to the
percentage average increase or decrease in the Bureau of Labor
Statistics "Consumer Price Index - U.S. City Average - All
Items" from December of the second preceding year.
4. Services. Xxxxxxxxx agrees to serve the Company faithfully and to
the best of his ability, and shall devote eighty-five percent (85%) of his
business time, attention and energies to the business of the Company during
regular business hours and at other times during the week as reasonably
requested by the Company and/or required by the demands of his position.
5. Expenses. During the Service Period, Xxxxxxxxx, upon presentation of
payment vouchers or receipts, will be reimbursed for the reasonable and
necessary expenses incurred by him in providing services pursuant to this
Agreement, including expenses for necessary travel and related costs incurred in
commuting to and from Virginia Beach, Virginia as well as expenses for
maintaining an office and secretarial assistance in Virginia Beach, Virginia.
6. Disability.During a period of disability,Xxxxxxxxx shall continue to
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receive full Monthly Fees from the Company each month for the term of such
disability but not to exceed six (6) months; after the expiration of said six
(6) months period, Xxxxxxxxx shall receive fifty percent (50%) of his full
Monthly Fees each Month for the remaining term of such disability but not to
exceed an additional six (6) months; after the expiration of twelve (12) months,
Xxxxxxxxx shall not be entitled to any additional Monthly Fees until the
resumption of normal services; provided, however, that if Xxxxxxxxx is disabled
as defined herein, and thereafter resumes full services hereunder, and
thereafter becomes disabled again, any such resumed period of disability shall,
for the purpose of determining the percentage of Monthly Fees and duration of
payment thereof to which Xxxxxxxxx is then entitled, be deemed a continuation of
the prior period of disability unless a period of at least six (6) continuous
months of active full time services elapsed since the conclusion of the prior
period of disability. For purposes of this Engagement Agreement "disability"
shall mean the inability of Xxxxxxxxx to effectively and substantially provide
the services hereunder by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted
or can be expected to last for a continuous period of not less than twelve (12)
months.
7. Termination.
(a) The Company may discharge Xxxxxxxxx for cause at any time
as provided herein. For purposes hereof, "cause" shall mean
the willful engaging by Xxxxxxxxx in illegal conduct or gross
misconduct which is demonstrably and materially injurious to
the Company. for purposes of this Agreement, no act, or
failure to act, on Xxxxxxxxx'x part shall be deemed "willful"
unless done, or omitted to be done, by Xxxxxxxxx not in good
faith and without reasonable belief that Xxxxxxxxx'x action or
omission was in the best interest of the Company.
Notwithstanding the foregoing, Xxxxxxxxx shall not be deemed
to have been terminated for Cause unless and until the Company
delivers to Xxxxxxxxx a copy of a resolution duly adopted by
the affirmative vote of not less than three-quarters of the
entire membership of the Board at a meeting of the Board
called and held for such purpose (after reasonable notice to
Xxxxxxxxx and an opportunity for Xxxxxxxxx, together with
counsel, to be heard before the Board) finding that, in the
good faith opinion of the Board, Xxxxxxxxx was guilty of
conduct set forth above and specifying the particulars thereof
in detail.
(b) This Agreement shall terminate upon the death of Xxxxxxxxx
or disability of Xxxxxxxxx which has lasted for a continuous
period of not less than twelve (12) months.
(c) Xxxxxxxxx shall have the right to terminate this Agreement
upon not less than thirty (30) days prior written notice of
termination.
8. Effect of Termination.
(a) In the event that this Agreement is terminated for
"cause" pursuant to subsection 7(a), the Company shall pay
Xxxxxxxxx, at the time of such termination, only the fees due
and payable to him through the date of the termination of this
Agreement.
(b) In the event that this Agreement is terminated by the
Company at any time without "cause", as defined in subsection
7(a), the Company shall pay to Xxxxxxxxx, at the time of such
termination, the fees otherwise due and payable to him through
the last day of the then current term of this Agreement.
(c) In the event this Agreement is terminated at his election
pursuant to subsection 7(c) or due to Xxxxxxxxx'x death or
disability pursuant to 5(b), the Company shall pay to
Xxxxxxxxx, at the time of such termination, the fees otherwise
due and payable to him through the last day of the month in
which such termination occurs and for an additional twelve
month period.
9. Xxxxxxxxx'x Representations and Warranties. Xxxxxxxxx hereby
represents and warrants to the Company that he has the right to enter into this
Agreement, and his execution, delivery and performance of this Agreement (a)
will not violate any contract to which Xxxxxxxxx is a party or any applicable
law or regulation nor give rise to any rights in any other person or entity and
(b) are not subject to the consent of any other person or entity.
10. Notices. Any notice or other communication pursuant to this
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Agreement shall be in writing and shall be sent by telecopy or by certified or
registered mail addressed to the respective parties as follows:
(i) If to the Company, to:
HEMISPHERX BIOPHARMA, INC.
Xxx Xxxx Xxxxxx
0000 XXX Xxxxxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 1910
Telecopier No.: (000) 000-0000
Attention: President
(ii) If to Xxxxxxxxx, to:
Xxxxxx X. Xxxxxxxxx
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx Xxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
or to such other address as the parties shall have designated by notice to the
other parties given in accordance with this section. Any notice or other
communication shall be deemed to have been duly given if personally delivered or
mailed via registered or certified mail, postage prepaid, return receipt
requested, or, if sent by telecopy, when confirmed.
11. Modification. No modification or waiver of this Agreement or
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any provision hereof shall be binding upon the party against whom enforcement of
such modification or waiver is sought unless it is made in writing and signed by
or on behalf of both parties hereto.
12. Miscellaneous.
(a) This Agreement shall be subject to and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
(b) The waiver by either party of a breach of any provision of
this Agreement by the other party shall not operate and be
construed as a waiver or a continuing waiver by that party of
the same or any subsequent breach of any provision of this
Agreement by the other party.
(c) If any provisions of this Agreement or the application
thereof to any person or circumstance shall be determined by
an arbitrator (or panel or arbitrators) or any court of
competent jurisdiction to be invalid or unenforceable to any
extent, the remainder hereof, or the application of such
provision to persons or circumstances other than those as to
which it is so determined to be invalid or unenforceable,
shall not - be affected thereby, and each provision hereof
shall be valid and shall be enforced to the fullest extent
permitted by law.
(d) This Agreement shall be binding on and inure to the
benefit of the parties hereto and their respective heirs,
executors and administrators, successors and assigns.
(e) This Agreement shall not be assignable in whole or in part
by either party, except that the Company may assign this
Agreement to and it shall be binding upon any subsidiary or
affiliate of the Company or any person, firm or corporation
with which the Company may be merged or consolidated or which
may acquire all or substantially all of the assets of the
Company.
IN WITNESS WHEREOF, this Agreement has been signed by the parties
hereto as of the date first above written.
HEMISPHERX BIOPHARMA, INC.
By /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, Chief Executive Officer
/s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
