EXHIBIT 4.20
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), dated as of July 1,
2004, between Prana Biotechnology Limited, an Australian corporation (the
"Company") with its principal offices at Xxxxx 0, 0000 Xxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxx, Xxxxxxxxx, and Xxxxx Xxxxxxx (the "Executive"), residing at Two Top
Xxxxxxx Xxxx, Xxxxxxxx, XX 00000.
WHEREAS, the Company desires to employ the Executive, and the
Executive desires to be employed by the Company, upon the terms and conditions
set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Employment. The Company hereby employs the Executive, and the Executive
agrees to accept such employment, upon the terms and conditions herein set
forth.
2. Employment Period. The term of employment hereunder shall commence on the
date hereof, July 1, 2004, and continue until termination as provided herein
(the "Employment Period").
3. Position and Duties. The Executive hereby agrees to serve as Chief Executive
Officer of the Company and shall have the duties, responsibilities and authority
as more fully set forth on Attachment A attached hereto. In such capacity the
Executive shall report to the Board of Directors of the Company and shall serve
on the Board of Directors. The Executive shall devote his best efforts and his
full business time and attention to the performance of services to the Company
in accordance with the terms hereof and as may reasonably be requested by the
Company. The Executive may not engage in other work activities without prior
written approval of the Board of Directors.
4. Compensation and Other Terms of Employment.
(a) Base Compensation. In consideration of the performance of his duties
for the Company, for the period beginning July 1, 2004 through and including the
termination of this Agreement as provided herein, the Executive's base
compensation will be no less than US$200,000 per year (the "Base Salary")
payable in accordance with the Company's regular payroll practices (e.g., timing
of payments and standard employee deductions, such as income and employment tax
withholdings). The foregoing salary may be increased, but not decreased, at the
discretion of the Board of Directors.
(b) Bonus Compensation. The Company will pay Executive an annual bonus in
the amount of US$100,000 for the first year of the Employment Period. The
Executive's annual bonus for the following years will be based upon the
Executive's success in satisfying pre-established performance targets to be
mutually agreed upon by the Executive and the Board of Directors, but under no
circumstances will be less
than US$100,000 for each subsequent year of the Employment Period. The bonus for
the first year of the Employment Period will be paid upon completion of the
Executive's first 15 months of employment, and subsequent bonuses will be paid
following completion of each subsequent year of the Employment Period in
accordance with the Company's regular practices. Upon termination of this
Agreement pursuant to the Executive's death or disability pursuant to Section
5(e) below, the Company shall pay a pro-rata bonus pursuant to Section 5(e).
(c) Within thirty days of the Annual General Meeting (timing yet to be
determined but expected to be between September and November 2004), and subject
to shareholder approval of an appropriate resolution, the Company shall grant
the Executive an option to purchase 380,000 ADR's at the price of $5.00 per ADR.
Such options will vest over a period of four years, with 25% vesting at the end
of each year from the beginning of the four-year period. The options will expire
at the end of eight years from the initial date of the grant.
(d) It is intended that the Executive should have no disincentive to his
spending additional days each year in Australia. Accordingly, the Base Salary
and bonus will be adjusted each year (by agreement between the Executive and the
Board of Directors) to compensate the Executive for differences in Australian
and United States tax rates in the event that this difference has penalized the
Executive for spending significant time in Australia.
(e) Business Expenses. Upon presentation of vouchers and similar receipts,
the Executive shall be entitled to receive reimbursement in accordance with the
policies and procedures of the Company maintained from time to time for all
reasonable business expenses actually incurred in the performance of his duties
for the Company.
(f) Vacation. The Executive shall be entitled to twenty (20) days of
vacation during each calendar year of the Employment Period. Any vacation days
that the Executive does not use in a calendar year will automatically be carried
over for use in the following year to a maximum carry of two years. Any vacation
days that the Executive has not used at the termination of the Employment Period
will be paid to the Executive at his Base Salary rate in effect at the time of
termination.
(g) Benefits. The Executive shall be entitled to participate in such
employment benefits, including but not limited to a Section 401(k) retirement
plan, health, dental, life insurance, and short and long term disability plans
as are established by the Company and as in effect from time to time applicable
to executives of the Company.
5. Termination and Consequences.
(a) The Executive's Right to Terminate. Notwithstanding any other
provision of this Agreement to the contrary, the Executive may terminate this
Agreement: (i) at any time during the Employment Period for Good Reason (as
defined in Section 5(f)
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below), on at least thirty (30) days' prior written notice; or (ii) without Good
Reason on at least ninety (90) days' prior written notice to the Company.
(b) The Company's Right to Terminate. Notwithstanding any other provision
of this Agreement to the contrary, the Company may terminate this Agreement: (i)
at any time during the Employment Period, with Cause (as defined in Section 5(g)
below); or (ii) without Cause, on at least ninety (90) days' prior written
notice to the Executive.
(c) Consequences of Termination Without Cause or for Good Reason. If the
Company terminates this Agreement without Cause, or if the Executive terminates
this Agreement with Good Reason, the Company shall (i) pay the Executive a lump
sum of $300,000 within twenty (20) days of the termination date; (ii) pay the
Executive all unreimbursed business expenses and accrued, unused vacation days;
and (iii) accelerate the vesting of any unvested options to purchase ADR's and
permit Executive to exercise such options during the remainder of the exercise
period for such options.
(d) Consequences of Termination With Cause or Without Good Reason. If the
Company terminates this Agreement with Cause or the Executive terminates this
Agreement Without Good Reason, then (i) Executive's Base Salary shall be
discontinued upon the termination of the Employment Period; (ii) Bonus
Compensation shall be pro-rated only if termination with Cause occurs in the
first year; and (iii) the Company shall pay the Executive all unreimbursed
business expenses and accrued, unused vacation days; and (iv) Executive shall
not be permitted to exercise any unvested options to purchase ADR's.
(e) Consequences of Termination for Death or Disability. If the Executive
dies during the term of this Agreement, then the Agreement shall terminate,
except that the Company shall pay to Executive's estate all accrued Base Salary,
pro-rata Bonus Compensation and unreimbursed business expenses and accrued,
unused vacation days that the Executive would otherwise have been entitled to
receive. Executive's estate shall also be permitted to exercise Executive's
vested options for ADR's. If the Executive is unable to perform his functions
because of Disability and the Agreement is terminated for that reason, the
Executive shall be entitled to receive the same amount that the Company would be
obligated to pay if the Executive had died during the term of this Agreement
less the amounts of payment under any disability policy maintained by the
Company.
(f) Definition of Good Reason. "Good Reason" means (i) a material
reduction of the Executive's duties and responsibilities from those in effect
immediately prior to the reduction or change, (ii) a requirement that the
Executive relocate his primary office more than 25 miles from Stamford,
Connecticut, or (iii) material breach by the Company of any provision of this
Agreement after receipt of ten (10) days written notice thereof from the
Executive and failure by the Company to cure the breach within thirty (30) days
thereafter.
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(g) Definition of Cause. "Cause" means the Executive's (i) conviction of a
felony, (ii) commission of acts of fraud, misappropriation, embezzlement, or
theft, or (iii) willful or repeated failure to follow specific directives of the
Board of Directors to act or refrain from acting, which directives are
consistent with the Executive's position as Chief Executive Officer of the
Company. Before the Company can terminate the Executive for Cause under clause
(g)(iii) of this Section 5(g), the Company must give the Executive written
notice setting forth the Company's dissatisfaction with the Executive and the
reasons therefor, and give the Executive thirty (30) days to cure the
circumstances supporting the for Cause determination.
(h) Definition of Disability. "Disability" means the inability of the
Executive to perform the Executive's duties of employment to 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
sixty (60) consecutive days or an aggregate of ninety (90) days in any 365 day
period. The existence of a Disability means that the Executive's mental and/or
physical condition substantially interferes with the Executive's performance of
his substantive duties for the Company as specified in this Agreement. The fact
of whether or not a Disability exists hereunder shall be determined by a
professionally qualified medical expert selected by the Company and the
Executive.
(i) Non-disparagement. In the event that Executive terminates this
Agreement with or without Good Reason, or that the Company terminates this
Agreement with or without Cause, the Company and the Executive agree that they
will not disparage each other in any way.
6. Records and Confidential Data.
(a) Acknowledgement. The Executive acknowledges that in connection with
the performance of his duties during the term of his employment the Company will
make available to the Executive, or the Executive will have access to, certain
Confidential Information (as defined below) of the Company. The Executive
acknowledges and agrees that any and all Confidential Information learned or
obtained by the Executive during the course of his employment by the Company or
otherwise whether developed by the Executive alone or in conjunction with others
or otherwise, shall be and is the property of the Company and its affiliates.
(b) Confidentiality Obligations. During the term of his employment and
thereafter Executive shall keep all Confidential Information confidential and
will not use such Confidential Information other than in connection with the
Executive's discharge of his duties hereunder, and will be safeguarded by the
Executive from unauthorized disclosure. This covenant is not intended to, and
does not limit in any way Executive's duties and obligations to the Company
under statutory and common law not to disclose or make personal use of the
Confidential Information or trade secrets.
(c) Return of Confidential Information. Following the Executive's
termination of employment, as soon as possible after the Company's written
request, the Executive will return to the Company all written Confidential
Information which has been provided
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to the Executive and the Executive will destroy all copies of any analyses,
compilations, studies or other documents prepared by the Executive or for the
Executive's use containing or reflecting any Confidential Information.
(d) Definition. For the purposes of this Agreement, "Confidential
Information" shall mean all confidential and proprietary information of the
Company, and its affiliates, including, without limitation, the Company's
scientific information, marketing strategies, pricing policies or
characteristics, customers and customer information, product or product
specifications, designs, software systems, leasing costs, cost of equipment,
customer lists, business or business prospects, plans, proposals, codes,
marketing studies, research, reports, investigations, or other information of
similar character. For purposes of this Agreement, the Confidential Information
shall not include and the Executive's obligations under this Section 6 shall not
extend to (i) information which is generally available to the public, (ii)
information obtained by the Executive from third persons, other than Executives
of the Company, the Company and the Company's affiliates, not under agreement to
maintain the confidentiality of the same and (iii) information which is required
to be disclosed by law or legal process and (iv) information known to Executive
prior to commencement of his employment with the Company, as evidenced by
written documentation.
7. Arbitration. In the event that there shall be a dispute between the parties
arising out of or relating to this Agreement, or the breach thereof, the parties
agree that such dispute shall be resolved by final and binding arbitration in
New York, New York, administered by the American Arbitration Association (the
"AAA"), in accordance with the AAA's Commercial Arbitration Rules, to which
shall be added the provisions of the Federal Rules of Civil Procedure relating
to the production of evidence, and the parties agree that the arbitrators may
impose sanctions in their discretion to enforce compliance with discovery and
other obligations. Such arbitration shall be presided over by a single
arbitrator. If Executive, on the one hand, and employer, on the other hand, do
not agree on the arbitrator within fifteen (15) days after a party requests
arbitration, the arbitrator shall be selected by employer and Executive from a
list of five (5) potential arbitrators provided by the AAA. Such list shall be
provided within ten (10) days of the request of any party for arbitration. The
party requesting arbitration shall delete one name from the list. The other
party shall delete one name from the list. This process shall then be repeated
in the same order, and the last remaining person on the list shall be the
arbitrator. This selection process shall take place within the two (2) business
days following both parties' receipt of the list of five (5) potential
arbitrators. The arbitrator's decision shall be final and binding upon the
parties, and may be entered and enforced in any court of competent jurisdiction
by either of the parties. Unless otherwise ordered by the arbitrator pursuant to
this Agreement, the arbitrator's fees and expenses shall be shared equally by
the parties. If any arbitration is brought by the Executive for payments due
hereunder, the arbitrator may award the Executive reasonable attorneys' fees and
other costs incurred in that action or proceeding, in addition to any other
relief to which the Executive may be entitled. If any other proceeding is
brought by one party against the other in connection with or relating in any
manner to this Agreement, or to enforce an arbitration award, each party will be
responsible for its own costs and attorneys' fees.
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8. Miscellaneous Provisions.
(a) Notices. All notices, offers or other communications required or
permitted to be given pursuant to this Agreement shall be in writing and shall
be considered as properly given or made (i) if delivered personally; (ii) after
the expiration of thirty (30) days from the date upon which such notice was
mailed from within the United States or Australia by certified mail, return
receipt requested, postage prepaid; or (iii) upon receipt by prepaid telegram,
facsimile transmission or electronic mail transmission (with written
confirmation of receipt for each kind of transmission). All notices given or
made pursuant hereto shall be so given or made to the Executive at the address
contained in the Company's personnel records and to the Company at its
headquarters, addressed to the attention of the Chair of the Board of Directors.
(b) The Executive's Representations and Warranties. The Executive hereby
represents and warrants that he is not a party to any agreement, contract or
understanding that would in any way restrict or prohibit him from undertaking or
performing any of his obligations under this Agreement.
(c) Amendments. Except as set forth in Section 4 above, this Agreement
shall not be changed or amended unless in writing and signed by both the
Executive and the Company.
(d) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts
executed in and to be performed entirely within that jurisdiction.
(e) Counterparts. This Agreement may be executed in counterparts, each of
which shall be an original, but all of which shall constitute one and the same
instrument.
IN WITNESS WHEREOF, this Agreement has been executed as of the date and
year first above written.
PRANA BIOTECHNOLOGY LIMITED
By: /s/Xxxxxxxx Xxxxxxx
--------------------
Name:
Title:
THE EXECUTIVE:
/s/Xxxxx Xxxxxxx
----------------
Xxxxx Xxxxxxx
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ATTACHMENT A
DESCRIPTION OF DUTIES
The Executive shall have the responsibilities and functions generally associated
with the position of Chief Executive Officer, including but not limited to:
o Develop and implement a business plan approved by the Board of
Directors to provide a clear and rational basis for the ongoing
prioritisation of the Company's activities and resource allocation,
updated as required.
o Establish KPI's to measure the performance of the Company.
o Develop, in conjunction with the Board of Directors, KPI's for the
measurement of the Executive's performance.
o Develop and expand the management team of the Company.
o Demonstrate strong commerciality in dealing with the Company's
assets.
o Direct and manage relationships with major pharmaceutical companies,
government regulatory agencies, investors and others.
o Work to continually improve the capitalisation and ensure the
ongoing funding of the Company.
o Develop the Company's United States office in Stamford, Connecticut,
which the Company agrees to maintain during the Employment Period
and for which the Company shall provide adequate funding and
resources.
o Work sufficient time in Australia to fulfill responsibilities on an
ongoing basis.
o Comply with current or future Company policies.
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