Exhibit 10(tt)
EXECUTION VERSION
EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement"), made in New York, New York, as of
the 22nd day of June, 2001, between Siga Technologies, Inc., a Delaware
corporation having its executive offices and principal place of business at 000
Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000 (the "Company"), and
Xxxxxx X. Xxxxxxx, an individual currently residing at 000 Xxxx 00xx Xxxxxx,
Xxx. 0X, Xxx Xxxx, Xxx Xxxx 00000 ("Executive").
WHEREAS, the Company desires to employ Executive, and Executive
desires to accept such employment on the terms and conditions hereinafter set
forth;
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and
agreements hereinafter set forth, the Company and Executive agree as follows:
1. Term.
The term of this Agreement shall be the two-year period
commencing on June 22, 2001 and ending on June 21, 2003, and as may be extended
from time to time pursuant to Section 9(p) hereof, (the "Term").
2. Employment.
(a) Employment by the Company. The Company shall employ
Executive and Executive agrees to be employed by the Company during the Term
upon the terms and subject to the conditions set forth in this Agreement.
Executive shall serve as President and Chief Executive Officer of the Company
and shall have such duties as may be prescribed by the Company consistent with
the duties generally prescribed to executives of the same level and
responsibility as implied by the titles given to Executive and also shall serve
in such additional position(s) as the Company may reasonably determine from time
to time, provided that the responsibilities of such additional position(s) do
not materially impair Executive's ability to perform as President and Chief
Executive Officer.
(b) Performance of Duties. Throughout the Term, Executive
shall faithfully and diligently perform Executive's duties in conformity with
the directions of the Company and serve the Company to the best of Executive's
ability. Executive shall devote Executive's entire working time to the business
and affairs of the Company, subject to vacations and sick leave in accordance
with Company policy and as otherwise permitted herein. Notwithstanding anything
to the contrary in this Section 2(b), so long as such activities do not preclude
or render unlawful Executive's employment by the Company or otherwise materially
inhibit the performance of his duties under this Agreement or materially impair
the business of the Company, Executive (i) may make personal investments which
are not in conflict with his duties to the Company and manage personal and
family financial and legal affairs, (ii) may continue to serve on any board of
directors on which he is known by the Board of Directors of the Company to be
serving on the effective date of this Agreement, as specified in Schedule A
hereto, (iii) may serve as a director of (or hold a similar position with) any
corporation, trade
association, or charitable organization with the approval of the Board of
Directors of the Company.
(c) Place of Performance. Executive shall be based at the
Company's principal place of business in New York, New York, or in such other
location(s) in New York City, Nassau County, or Westchester County, or in New
Jersey at a distance that is no longer than 30 miles from the Empire State
Building as the Company may determine.
3. Compensation and Benefits.
(a) Base Salary. The Company agrees to pay to Executive a base
salary ("Base Salary") at the annual rate of $300,000, payable in equal
installments consistent with the Company's payroll practices.
(b) Benefits and Perquisites. Executive shall be entitled to
participate in, to the extent Executive is otherwise eligible under the terms
thereof, the benefit plans and programs, and receive the benefits and
perquisites, generally provided to executives of the same level and
responsibility as Executive, including without limitation family medical
insurance, life insurance and disability insurance (subject to applicable
employee contributions). Executive's annual vacation entitlement shall be the
greater of four weeks and the amount of vacation to which Executive is entitled
under Company policy; provided, however, that Executive's vacation entitlement
shall be the same as or greater than the vacation entitlement of each other
employee of the Company.
(c) Bonus. The Company may, in its sole discretion, pay to
Executive an annual bonus based on the performance of the Company and of
Executive as determined by the Company in its sole discretion.
(d) Grant of Options and Terms Thereof. On or before June 30,
2001, the Company shall grant to Executive a non-qualified option (the
"Option"), to purchase four hundred twenty thousand (420,000) shares of the
Company's common stock at a share price equal to the closing share price of the
Company's common stock on the date of the execution of this Agreement. The
Option shall vest in four equal installments -- on the first, second, third, and
fourth anniversaries of Executive's employment under this Agreement -- provided
that Executive is employed by the Company or receiving severance pay under
Section 4(d) or 4(e) of this Agreement on the respective vesting dates. All
terms of the Option shall be governed by the Company's Amended and Restated 1996
Incentive and Non-Qualified Stock Option Plan (the "Plan"), as well as the
applicable option agreement to be entered into pursuant to the terms of the
Plan; provided, however, that this Agreement supersedes the Plan with respect to
the terms of the Option contained herein and provided further that the term
"Cause" in the Plan shall be defined as the term "Cause" is defined in Section
4(b) of this Agreement. Notwithstanding the foregoing all options granted
hereunder shall be contingent upon stockholder approval of the Plan.
(e) Travel and Business Expenses. Upon submission of itemized
expense statements in the manner specified by the Company, Executive shall be
entitled to reimbursement for reasonable travel and other reasonable business
expenses duly incurred by Executive in the performance of Executive's duties
under this Agreement in accordance with the
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policies and procedures established by the Company from time to time for
executives of the same level and responsibility as Executive.
(f) No Other Compensation or Benefits; Payment. The
compensation and benefits specified in this Section 3 and in Section 4 of this
Agreement shall be in lieu of any and all other compensation and benefits.
Payment of all compensation and benefits to Executive hereunder shall be made in
accordance with the relevant Company policies in effect from time to time to the
extent the same are consistently applied, including normal payroll practices,
and shall be subject to all applicable employment and withholding taxes and
other withholdings.
(g) Cessation of Employment. In the event Executive shall
cease to be employed by the Company for any reason, then Executive's
compensation and benefits shall cease on the date of such event, except as
otherwise provided herein or in any applicable employee benefit plan or program.
4. Termination of Employment.
(a) Termination. The Company may terminate Executive's
employment for Cause (as defined below) or for any material breach of this
Agreement, in which case the provisions of Section 4(b) of this Agreement shall
apply. The Company may also terminate Executive's employment in the event of
Executive's Disability (as defined below), in which case the provisions of
Section 4(c) of this Agreement shall apply. The Company may also terminate the
Executive's employment for any other reason by written notice to Executive, in
which case the provisions of Section 4(d) of this Agreement shall apply. If
Executive's employment is terminated by reason of Executive's death, retirement
or voluntary resignation, the provisions of Section 4(b) of this Agreement shall
apply.
(b) Termination for Cause; Termination by Reason of Death or
Retirement or Voluntary Resignation. In the event that Executive's employment
hereunder is terminated during the Term (x) by the Company for Cause (as defined
below), (y) by reason of Executive's death or retirement or (z) by reason of
Executive's voluntary resignation, then the Company shall pay to Executive only
the Base Salary through such date of termination. For purposes of this
Agreement, "Cause" shall mean (i) conviction of any crime (whether or not
involving the Company) constituting a felony in the jurisdiction involved; (ii)
engaging in any act which, in each case, subjects, or if generally known would
subject, the Company to public ridicule or embarrassment; (iii) gross neglect or
gross misconduct in the performance of Executive's duties hereunder; (iv)
willful failure or refusal to perform such duties as may reasonably be delegated
to Executive; or (v) material breach of any provision of this Agreement by
Executive; provided, however, that a termination pursuant to clause (iii), (iv),
or (v) shall not become effective unless the Executive fails to cure such
neglect, misconduct, failure or refusal to perform, or breach within twenty (20)
days after written notice from the Company, such notice to describe such
neglect, misconduct, failure or refusal to perform, or breach.
(c) Disability. If, as a result of Executive's incapacity due
to physical or mental illness, Executive shall have been absent from Executive's
duties hereunder on a full time basis for either (i) one hundred twenty (120)
days within any three hundred sixty-five (365) day period, or (ii) ninety (90)
consecutive days, the Company may terminate Executive's
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employment hereunder for "Disability". In that event, the Company shall pay to
Executive only the Base Salary through such date of termination. During any
period that Executive fails to perform Executive's duties hereunder as a result
of incapacity due to physical or mental illness (a "Disability Period"),
Executive shall continue to receive the compensation and benefits provided by
Section 3 of this Agreement until Executive's employment hereunder is
terminated; provided, however, that the amount of compensation and benefits
received by Executive during the Disability Period shall be reduced by the
aggregate amounts, if any, payable to Executive under disability benefit plans
and programs of the Company or under the Social Security disability insurance
program.
(d) Termination By Company For Any Other Reason. In the event
that Executive's employment hereunder is terminated by the Company during the
Term for any reason other than as provided in Section 4(b) or 4(c) of this
Agreement, then the Company shall pay to Executive the Base Salary through such
date of termination, and, in lieu of any further compensation and benefits for
the balance of the Term: (x) the Company shall provide Executive with severance
pay equal to six months of Base Salary, which severance pay shall be paid
commencing with such date of termination at the times and in the amounts such
Base Salary amounts would have been paid if Executive had remained employed by
the Company for the six-month period immediately following the date of
termination; and (y) if Executive timely elects COBRA continuation medical
coverage, the Company shall reimburse Executive for COBRA premium costs for the
level of coverage Executive maintained on the date of termination incurred by
Executive for the six months immediately following the termination of his
employment; provided, however, that the Company's obligation to make such COBRA
reimbursement payments shall cease upon Executive becoming eligible for medical
coverage under another group health plan. During the period in which Executive
receives severance pay under this Section 4(d), the Option shall continue to
vest and the Company shall provide Executive with an office and office services
through an executive outplacement service. If Executive's employment is
terminated under this Section 4(d), Executive's vested options shall be
exercisable for three years immediately following the end of the six-month
period during which he received severance pay. Notwithstanding anything to the
contrary contained herein, in the event that Executive shall materially breach
Section 5, 6, or 7 of this Agreement, in addition to any other remedies the
Company may have in the event Executive breaches this Agreement, the Company's
obligation pursuant to this Section 4(d) to make severance payments shall cease,
the Option shall expire, and Executive's rights with respect to severance pay
and the Option shall terminate and shall be forfeited. The entitlement to
severance pay and option vesting and exercisability hereunder shall not be
affected by, or reduced by virtue of, any subsequent employment, or income, that
Executive may obtain.
(e) Termination by Executive upon Change in Control. Upon a
Change in Control, if Executive is no longer the President and Chief Executive
Officer or its equivalent of the surviving organization, then Executive may
terminate his employment with Company within 90 days of the Change in Control.
If Executive terminates his employment under this Section 4(e), the Company
shall pay to Executive the Base Salary through such date of termination and, in
lieu of any further compensation and benefits for the balance of the Term,
severance pay equal to six months of Base Salary, which severance pay shall be
paid commencing with such date of termination at the times and in the amounts
such Base Salary amounts would have been paid if Executive had remained employed
by the Company for the six-
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month period immediately following the date of termination and all unvested
options shall be, and become, vested on the date of termination. For purposes of
this Agreement, Change in Control shall mean any of the following occurrences:
(i) the Corporation sells all or substantially all of
its assets to one "person" (as such term is used in Sections 13(d) and 14(d)(2)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) who is
unaffiliated with the Corporation (or a related group) (as defined in the
Exchange Act); or
(ii) the stockholders of the Corporation approve a
merger or consolidation of the Corporation with any other corporation, other
than a merger or consolidation which would result in the voting securities of
the Corporation outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting securities of
the surviving entity) more than 50% of the combined voting power of the voting
securities of the Corporation or such surviving entity outstanding immediately
after such merger or consolidation; provided, however, that a merger or
consolidation effected to implement a recapitalization of the Corporation (or
similar transaction) in which no "person" (as defined above) acquires more than
50% of the combined voting power of the Corporation's then outstanding
securities shall not constitute a Change in Control.
(f) Release. The Company shall have the right to condition the
payment of any severance, continued vesting of options, and/or provision of
benefits pursuant to this Section 4 upon the delivery by Executive to the
Company of a release in form and substance satisfactory to the Company of any
and all claims Executive may have against the Company and its directors,
officers, employees, subsidiaries, affiliates, stockholders (in their capacity
as stockholders), successors, assigns, agents and representatives arising out of
or related to Executive's employment by the Company and the termination of such
employment.
5. Exclusive Employment; Noncompetition.
(a) No Conflict; No Other Employment. During the period of
Executive's employment with the Company, Executive shall not: (i) engage in any
activity which conflicts or interferes with or derogates from the performance of
Executive's duties hereunder nor shall Executive engage in any other business
activity, whether or not such business activity is pursued for gain or profit,
except as approved in advance in writing by the Board of Directors of the
Company; provided, however, that Executive shall be entitled to manage his
personal investments and otherwise attend to personal affairs, including
charitable activities, in a manner that does not unreasonably interfere with his
responsibilities hereunder, or (ii) accept any other full-time or substantially
full-time employment, whether as an executive or consultant or in any other
capacity, and whether or not compensated therefor. The Company acknowledges that
Executive may have obligations to his former employer as described in Appendix B
and states that as of the date of execution of this Agreement it does not
believe those obligations to be in breach of this Section 5(a).
(b) No Competition. Executive recognizes the highly
competitive nature of the Company's business and that Executive's position with
the Company and access to and use of the Company's confidential records and
proprietary information renders Executive
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special and unique. Without limiting the generality of the provisions of Section
2(b) or 5(a) of this Agreement, during the Term, and any extension thereof, and
for a period of one year after the termination of Executive's employment with
the Company for any reason, Executive shall not, directly or indirectly, own,
manage, operate, join, control, participate in, invest in or otherwise be
connected or associated with, in any manner, including as an officer, director,
employee, independent contractor, stockholder, member, partner, consultant,
advisor, agent, proprietor, trustee or investor, any Competing Business located
in the United States; provided, however, that ownership of 2% or less of the
stock or other securities of a corporation, the stock of which is listed on a
national securities exchange or is quoted on The Nasdaq Stock Market, shall not
constitute a breach of this Section 5, so long as Executive does not in fact
have the power to control, or direct the management of, or is not otherwise
associated with, such corporation.
For purposes hereof, the term "Competing Business" shall mean any
business or venture which, directly or indirectly, relates to the development
and commercialization of antimicrobial drugs and vaccines, both of which are
directed at bacterial infections or to any other areas of concentration of the
Company during Executive's employment; provided, however, that Executive's
affiliation with a Competing Business shall not be in breach of this Section
5(b) as long as his affiliation does not in any way relate to the development
and commercialization of anti-microbial drugs and vaccines directed at bacterial
infections or to any other areas of concentration of the Company during
Executive's employment.
(c) No Solicitation of Employment. During the Term, and any
extension thereof, and for a period of one year thereafter, Executive shall not
solicit or encourage any other employee to leave the Company for any reason, nor
assist any business in doing so, nor employ such an employee in a Competing
Business or any other business.
(d) Company Customers. Executive shall not, during the Term,
and any extension thereof, and for a period of one year thereafter, except as
required by the Company in the performance by Executive of his duties under this
Agreement, directly or indirectly, on behalf of a Competing Business, contact,
solicit or do business with any "customers" (as defined below) of the Company
for the purpose of selling or licensing anti-microbial drugs or vaccines
directed at bacterial infections or any other product then sold or licensed by
the Company or proposed to be sold or licensed by the Company. For the purposes
of the provisions of this Section 5(d), "customer" shall include any entity
that, within two years prior to the termination of Executive's employment
hereunder, purchased or licensed any product from the Company. The term
"customer" also includes any former customer or potential customer of the
Company which the Company has solicited within two years prior to the
termination of Executive's employment hereunder for the purpose of selling or
licensing any product then sold or licensed by the Company or proposed to be
sold or licensed.
(e) Executive understands that the provisions of this Section
5 may limit his ability to earn a livelihood in a business that competes with
the business of the Company but nevertheless agrees and hereby acknowledges that
the consideration provided under this Agreement is sufficient to justify the
restrictions contained in such provisions. In consideration thereof and in light
of Executive's education, skills and abilities, Executive agrees
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that he will not assert in any forum that such provisions prevent him from
earning a living or otherwise are void or unenforceable or should be held void
or unenforceable.
6. Inventions and Proprietary Property.
(a) Definition of Proprietary Property. For purposes of this
Agreement, "Proprietary Property" shall mean designs, specifications, ideas,
formulae, discoveries, inventions, improvements, innovations, concepts and other
developments, trade secrets, techniques, methods, know-how, technical and
non-technical data, works of authorship, computer programs, computer algorithms,
computer architecture, mathematical models, drawings, trademarks, copyrights,
customer lists, marketing plans, and all other matters which are legally
protectible or recognized as forms of property, whether or not patentable or
reduced to practice or to a writing. Notwithstanding anything to the contrary
elsewhere contained in this Section 6, it is expressly understood that the
Proprietary Rights to articles prepared or written for the trade press may be
assigned to the respective trade press companies.
(b) Assignment of Proprietary Property to the Company.
Executive hereby agrees to assign, transfer and set over, and Executive does
hereby assign, transfer and set over, to the Company, without further
compensation, all of Executive's rights, title and interest in and to any and
all Proprietary Property which Executive, either solely or jointly with others,
has conceived, made or suggested or may hereafter conceive, make or suggest, in
the course of Executive's employment with the Company.
The assignment of Proprietary Property hereunder includes without
limitation all rights of paternity, integrity, disclosure and withdrawal and any
other rights that may be known as or referred to as moral rights and the like
("Moral Rights"). To the extent that such Moral Rights cannot be assigned under
applicable law and to the extent the following is allowed by the laws in the
various countries where Moral Rights exist, Executive hereby waives such Moral
Rights and consents to any action of the Company or any third party that would
violate such Moral Rights in the absence of such consent. Executive also will
endeavor to facilitate such use of any such Moral Rights as the Company shall
reasonably instruct, including confirming any such waivers and consents from
time to time as requested by the Company.
(c) Works for Hire. Executive acknowledges that all original
works of authorship or other creative works which are made by Executive (solely
or jointly with others) within the scope of the employment of Executive by the
Company and which are protectable by copyright are "works made for hire,"
pursuant to United States Copyright Act (17 U.S.C., Section 101). To the extent
such original work of authorship or other creative works are not works made for
hire, Executive hereby assigns to the Company all of the rights comprised in the
copyright of such works.
(d) Disclosure of Proprietary Property and Execution of
Documents. Executive further agrees to promptly disclose to the Company any and
all Proprietary Property which Executive has assigned, transferred and set over
or will assign, transfer and set over as provided in paragraph (b) and Executive
agrees to execute, acknowledge and deliver to the Company, without additional
compensation and without expense to Executive, any and all instruments
reasonably requested, and to do any and all lawful acts which, in the reasonable
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judgment of the Company or its attorneys may be required or desirable in order
to vest in the Company all property rights with respect to such Proprietary
Property.
(e) Enforcement of Proprietary Rights. Executive will assist
the Company in every proper way to obtain, assign to the Company, confirm and
from time to time enforce, United States and foreign patent trade secret,
trademark, copyright, mask work, and other intellectual property rights relating
to Proprietary Property in any and all countries. To that end Executive will
execute, verify and deliver such documents and perform such other acts
(including appearances as a witness) as the Company may reasonably request for
use in applying for, obtaining, perfecting, evidencing, sustaining and enforcing
such proprietary rights and the assignment of such Proprietary Property. In
addition, Executive will execute, verify and deliver assignments of such
Proprietary Property and all rights therein to the Company or its designee. The
obligation of Executive to assist the Company with respect to proprietary rights
relating to such Company Proprietary Property in any and all countries shall
continue beyond the termination of employment, but the Company shall compensate
Executive at a reasonable rate after such termination for the time actually
spent at the Company's request on such assistance.
In the event the Company is unable for any reason, after reasonable
effort, to secure the signature of Executive on any document needed in
connection with the actions specified in the preceding paragraph, Executive
hereby irrevocably designates and appoints the Company and its duly authorized
officers and agents as agent and attorney in fact, which appointment is coupled
with an interest, to act for and on behalf of Executive to execute, verify and
file any such documents and to do all other lawfully permitted acts to further
the purposes of the preceding paragraph with the same legal force and effect as
if executed by Executive. Executive hereby waives and quitclaims to the Company
any and all claims, of any nature whatsoever, which Executive now or may
hereafter have for infringement of any proprietary rights assigned hereunder to
the Company.
(f) Third Party Information. To the extent Executive has or
possesses any Confidential Information (as hereinafter defined) belonging to
Executive or to others, Executive will not use or disclose to the Company or
induce the Company to use any such Confidential Information unless the Company
has a legal right to use such Confidential Information. Executive will promptly
advise the Company in writing if any of Executive's involvement with the Company
might result in the possible violation of Executive's undertakings to others or
the use of any Confidential Information of Executive or of others.
7. Confidential Information.
(a) Existence of Confidential Information. The Company owns
and has developed and compiled, and will develop and compile, certain
proprietary techniques and confidential information which have great value to
its business (referred to in this Agreement, collectively, as "Confidential
Information"). Confidential Information includes not only information disclosed
by the Company to Executive, but also information developed or learned by
Executive during the course or as a result of employment with the Company, which
information shall be the property of the Company. Confidential Information
includes all information that has or could have commercial value or other
utility in the business in which the Company is engaged or contemplates
engaging, and all information of which the unauthorized
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disclosure could be detrimental to the interests of the Company, whether or not
such information is specifically labeled as Confidential Information by the
Company. By way of example and without limitation, Confidential Information
includes any and all information developed, obtained, licensed by or to or owned
by the Company concerning trade secrets, techniques, know-how (including
designs, plans, procedures, merchandising, marketing, distribution and
warehousing know-how, processes, and research records), software, computer
programs and designs, development tools, all Proprietary Property, and any other
intellectual property created, used or sold (through a license or otherwise) by
the Company, electronic data information know-how and processes, innovations,
discoveries, improvements, research, development, test results, reports,
specifications, data, formats, marketing data and plans, business plans,
strategies, forecasts, unpublished financial information, orders, agreements and
other forms of documents, price and cost information, merchandising
opportunities, expansion plans, budgets, projections, customer, supplier,
licensee, licensor and subcontractor identities, characteristics, agreements and
operating procedures, and salary, staffing and employment information. The term
"proprietary information" shall not include information generally known or
available to the public or generally known or available to the industry or
information that becomes available to Executive on a non-confidential basis
from a source other than the Company or its directors, officers, employees, or
agents (without breach of any obligation of confidentiality).
(b) Protection of Confidential Information. Executive
acknowledges and agrees that in the performance of Executive's duties hereunder
the Company may disclose to and entrust Executive with Confidential Information
which is the exclusive property of the Company and which Executive may possess
or use only in the performance of Executive's duties to the Company. Executive
also acknowledges that Executive is aware that the unauthorized disclosure of
Confidential Information, among other things, may be prejudicial to the
Company's interests, an invasion of privacy and an improper disclosure of trade
secrets. Executive shall not, directly or indirectly, use, make available, sell,
disclose or otherwise communicate to any corporation, partnership or other
entity, individual or other third party, other than in the course of Executive's
assigned duties and for the benefit of the Company, any Confidential
Information, either during the Term or thereafter.
(c) Delivery of Records. Etc. In the event Executive's
employment with the Company ceases for any reason, Executive will not remove
from the Company's premises without its prior written consent any records
(written or electronic), files, drawings, documents, equipment, materials and
writings received from, created for or belonging to the Company, including those
which relate to or contain Confidential Information, or any copies thereof. Upon
request or when employment with the Company terminates, Executive will
immediately deliver the same to the Company; provided, however, that Executive
shall be allowed to retain a copy of any business and personal contact
information that Executive brought to the Company, including any updating to
same that has been done during his employment at the Company.
8. Assignment and Transfer.
(a) Company. This Agreement shall inure to the benefit of and
be enforceable by, and may be assigned by the Company to, any purchaser of all
or substantially all
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of the Company's business or assets, any successor to the Company or any
assignee thereof (whether direct or indirect, by purchase, merger, consolidation
or otherwise).
(b) Executive. Executive's rights and obligations under this
Agreement shall not be transferable by Executive by assignment or otherwise, and
any purported assignment, transfer or delegation thereof shall be void;
provided, however, that if Executive shall die, all amounts then payable to, or
vested in, Executive hereunder shall be paid in accordance with the terms of
this Agreement to Executive's devisee, legatee or other designee or, if there be
no such designee, to Executive's estate.
9. Miscellaneous.
(a) Other Obligations. Executive represents and warrants that
neither Executive's employment with the Company nor Executive's performance of
Executive's obligations hereunder will conflict with or violate or otherwise are
inconsistent with any other obligations, legal or otherwise, which Executive may
have. Executive covenants that he shall perform his duties hereunder in a
professional manner and not in conflict or violation, or otherwise inconsistent
with other obligations legal or otherwise, which Executive may have.
(b) Nondisclosure; Other Employers. Executive will not
disclose to the Company, or use, or induce the Company to use, any proprietary
information, trade secrets or confidential business information of others.
(c) Cooperation. Following termination of employment with the
Company for any reason, Executive shall cooperate with the Company, as
reasonably requested by the Company, to affect a transition of Executive's
responsibilities and to ensure that the Company is aware of all matters being
handled by Executive.
(d) No Mitigation of Severance. Executive shall be under no
duty to mitigate any losses or damage to, or payments by, the Company, and there
shall be no setoffs or reductions with respect to any severance or other amounts
payable pursuant to Section 4 of this Agreement except as provided in Section 4.
(e) Protection of Reputation. During the Term, Executive
agrees that he will not take action which is intended, or would reasonably be
expected, to harm the Company or its reputation or which would reasonably be
expected lead to unwanted or unfavorable publicity to the Company.
(f) Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York, without
regard to principles of the conflict of laws thereof.
(g) Jurisdiction; Forum. Each party hereto consents and
submits to the jurisdiction of any state court sitting in New York County, New
York, and the U.S. District Court for the Southern District of New York in
connection with any dispute arising out of or relating to this Agreement. Each
party hereto waives any objection to the laying of venue in such courts and any
claim that any such action has been brought in an inconvenient forum. To the
extent permitted by law, any judgment in respect of a dispute arising out of or
relating to this
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Agreement may be enforced in any other jurisdiction within or outside the United
States by suit on the judgment, a certified copy of such judgment being
conclusive evidence of the fact and amount of such judgment.
(h) Waiver of Jury Trial. Each of the parties hereto
irrevocably waives any and all right to trial by jury with respect to any
action, claim or other proceeding arising out of or relating to this Agreement.
(i) Entire Agreement. This Agreement (including all exhibits
and schedules hereto) contains the entire agreement and understanding between
the parties hereto in respect of Executive's employment and supersedes, cancels
and annuls any prior or contemporaneous written or oral agreements,
understandings, commitments and practices between them respecting Executive's
employment, including all prior employment agreements, if any, between the
Company and Executive, which agreement(s) hereby are terminated and shall be of
no further force or effect.
(j) Amendment. This Agreement may be amended only by a writing
which makes express reference to this Agreement as the subject of such amendment
and which is signed by Executive and, on behalf of the Company, by its duly
authorized officer.
(k) Severability. If any term, provision, covenant or
condition of this Agreement or part thereof, or the application thereof to any
person, place or circumstance, shall be held to be invalid, unenforceable or
void by a court of competent jurisdiction, the remainder of this Agreement and
such term, provision, covenant or condition shall remain in full force and
effect, and any such invalid, unenforceable or void term, provision, covenant or
condition shall be deemed, without further action on the part of the parties
hereto, modified, amended and limited, and the court shall have the power to
modify, to the extent necessary to render the same and the remainder of this
Agreement valid, enforceable and lawful. In this regard, Executive acknowledges
that the provisions of Sections 5, 6, and 7 of this Agreement are reasonable and
necessary for the protection of the Company.
(1) Construction. The headings and captions of this Agreement
are provided for convenience only and are intended to have no effect in
construing or interpreting this Agreement. The language in all parts of this
Agreement shall be in all cases construed according to its fair meaning and not
strictly for or against the Company or Executive. The use herein of the word
"including," when following any general provision, sentence, clause, statement,
term or matter, shall be deemed to mean "including, without limitation." As used
herein, "Company" shall mean the Company and its subsidiaries and any purchaser
of, successor to or assignee (whether direct or indirect, by purchase, merger,
consolidation or otherwise) of all or substantially all of the Company's
business or assets which is obligated to perform this Agreement by operation of
law, agreement pursuant to Section 8 of this Agreement or otherwise. As used
herein, the words "day" or "days" shall mean a calendar day or days.
(m) Nonwaiver. Neither any course of dealing nor any failure
or neglect of either party hereto in any instance to exercise any right, power
or privilege hereunder or under law shall constitute a waiver of any other
right, power or privilege or of the same right, power or privilege in any other
instance. All waivers by either party hereto must be contained in
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a written instrument signed by the party to be charged and, in the case of the
Company, by its duly authorized officer.
(n) Remedies for Breach. The parties hereto agree that
Executive is obligated under this Agreement to render personal services during
the Term of a special, unique, unusual, extraordinary and intellectual
character, thereby giving this Agreement special value, and, in the event of a
breach or threatened breach of any covenant of Executive herein, the injury or
imminent injury to the value and the goodwill of the Company's business could
not be reasonably or adequately compensated in damages in an action at law.
Accordingly, Executive expressly acknowledges that the Company shall be entitled
to specific performance, injunctive relief or any other equitable remedy against
Executive, without the posting of a bond, in the event of any breach or
threatened breach of any material provision of this Agreement by Executive
(including, without limitation, Sections 5, 6, and 7). Without limiting the
generality of the foregoing, if Executive breaches or threatens to breach
Section 5, 6, or 7 of this Agreement, such breach or threatened breach will
entitle the Company, without posting of bond, to an injunction prohibiting (i)
Executive from disclosing any Confidential Information to any Competing
Business; (ii) such Competing Business from receiving from Executive or using
any such Confidential Information; and (iii) Executive from, indirectly or
directly, owning, managing, operating, joining, controlling, participating in,
investing in or otherwise being connected or associated with, in any manner, any
such Competing Business. The rights and remedies of the parties hereto are
cumulative and shall not be exclusive, and each such party shall be entitled to
pursue all legal and equitable rights and remedies and to secure performance of
the obligations and duties of the other under this Agreement, and the
enforcement of one or more of such rights and remedies by a party shall in no
way preclude such party from pursuing, at the same time or subsequently, any and
all other rights and remedies available to it.
(o) Notices. Any notice, consent, request or other
communication made or given under this Agreement or pursuant to law shall be
sufficient if in writing and shall be deemed to have been duly given when
actually received, or, if mailed, five days after mailing by registered or
certified mail, return receipt requested, to Executive's residence (as reflected
in the Company's records or as otherwise designated by Executive on at least
thirty (30) days' prior written notice to the Company) or to the Company's
principal executive office, attention: Chairman of the Board, as the case may
be. Rejection or other refusal to accept, or the inability to deliver because of
changed address of which no notice was given as provided herein, shall be deemed
to be receipt of the notice, request, consent or approval sent.
(p) Extension of the Term. This Agreement may be extended, in
the Company's sole discretion, for a period of one year at the end of the Term
(or any extension thereof) provided that the Company notifies Executive in
writing of its intention to renew this Agreement not later than six months prior
to the end of the Term (or extension thereof) (the "Notice Date"). Any such
extension shall be effective and binding as of the applicable Notice Date. If
the Company fails to offer to extend the Term of this Agreement for at least one
year then the failure to extend shall be treated as a Section 4(d) event as of
the end of the Term.
(q) Assistance in Proceedings, Etc. Executive shall during and
after expiration of the Term, upon reasonable notice, furnish such information
and assistance to the Company as may reasonably be required by the Company in
connection with any legal or quasi-
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legal proceeding, including any external or internal investigation, involving
the Company or any of its affiliates or in which any of them is, or may become,
a party. In connection with any cooperation or assistance to be provided by
Executive to the Company following his termination under this Section 9(q), it
is specifically agreed that: (i) Executive shall have all of his reasonable
costs reimbursed to him by the Company; (ii) the Company shall compensate
Executive at a rate of $1,000 per day for his attendance, at the Company's
request, at meetings, conferences, hearings, or other proceedings; and (iii) the
Company acknowledges that Executive desires not to travel outside the New York
metropolitan area to fulfill his obligations under this Section 9(q) and will
consider such desire in making any request for assistance under this Section
9(q).
(r) Survival. Cessation or termination of Executive's
employment with the Company shall not result in termination of this Agreement.
The respective obligations of Executive and rights and benefits afforded to the
Company as provided in this Agreement shall survive cessation or termination of
Executive's employment hereunder.
(s) Counterparts; fax. For the convenience of the parties
hereto, any number of counterparts hereof may be executed, each such executed
counterpart shall be deemed an original and all such counterparts together shall
constitute one and the same instrument. Facsimile transmission of any signed
original counterpart and/or retransmission of any signed facsimile transmission
shall be deemed the same as the delivery of the original.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed on its behalf by an officer thereunto duly authorized and Executive has
duly executed this Agreement, all as of the date and year first written above.
SIGA TECHNOLOGIES, INC. EXECUTIVE:
By:_____________________ ________________________
Name: Xxxxxx X. Xxxxxxx
Title:
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EXECUTION VERSION
Schedule A
As of the effective date of the Agreement, Executive is a member of
the following boards and panel:
1. Editorial Advisory Board of the Journal of Commercial Biotechnology
2. Review Panel for the Innovative Technology Grant Program, sponsored
by the New York State Research Foundation, Center for Biotechnology
3. Advisory board of "Investing in Biotechnology" a conference,
sponsored by International Business Forums to be held in November
2001
4. Advisory board for the New York Biotechnology Association
5. Advisory board for the Biotechnology Industry Organization
6. Board of Directors of the Xxxxx Xxxxxxxxxx Family Benevolent
Association
In addition to serving on the above boards and panel, Executive is
organizing a panel for the Annual Meeting of the Association of University
Technology Managers, to be held in February 2002.
IN WiTNESS WHEREOF, the Company has caused this Agreement to be duly
executed on its behalf by an officer thereunto duly authorized and Executive has
duly executed this Agreement, all as of the date and year first written above.
SIGA TECHNOLOGIES, INC. EXECUTIVE:
By: /s/ Xxxx Xxxx, M.D.
---------------------------- -------------------------
Name: Xxxx Xxxx, M.D. Xxxxxx X. Xxxxxxx
Title: Interim CEO
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IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed on its behalf by an officer thereunto duly authorized and Executive has
duly executed this Agreement, all as of the date and year first written above.
SIGA TECHNOLOGIES, INC. EXECUTIVE:
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------- -------------------------
Name: Xxxxxx X. Xxxxxxx
Title:
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