EXHIBIT 10.2
CHIEF EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into this 21 day of April,
1999, by and between TRIMERIS, INC., a Delaware corporation (the "Company"), and
XXXX X. XXXXXXXXX ("Executive").
W I T N E S S E T H:
WHEREAS, Executive and the Company deem it to be in their respective
best interests to enter into an agreement providing for the Company's employment
of Executive pursuant to the terms herein stated;
NOW, THEREFORE, in consideration of the premises and the mutual promises
and agreements contained herein, it is hereby agreed as follows:
1. Effective Date. This Agreement shall be effective as of the
12th day of March, 1999, which date shall be referred to herein as the
"Effective Date".
2. Position and Duties.
(a) The Company hereby employs Executive as its Chief Executive
and Scientific Officer commencing as of the Effective Date for the "Term of
Employment" (as herein defined below). In this capacity, Executive shall devote
his best efforts and his full business time and attention to the performance of
the services customarily incident to such offices and position and to such other
services of a senior executive nature as may be reasonably requested by the
Board of Directors (the "Board") of the Company which may include services for
one or more subsidiaries or affiliates of the Company. Executive shall in his
capacity as an employee and officer of the Company be responsible to and obey
the reasonable and lawful directives of the Board.
(b) Executive shall devote his full time and attention to such
duties, except for sick leave, reasonable vacations, and excused leaves of
absences as more particularly provided herein. Executive shall use his best
efforts during the Term of Employment to protect, encourage, and promote the
interests of the Company.
(c) Notwithstanding paragraph 2(b), and with Company consent,
Executive shall be entitled to sit as a director on one (1) other board of
directors so long as doing so presents no conflict of interest with Executive's
performance of his duties or his positions at the Company.
3. Compensation.
(a) Base Salary. The Company shall pay to Executive during the
Term of Employment a minimum salary at the rate of Two Hundred Eighty Five
Thousand dollars ($285,000.00) per year and agrees that such salary shall be
reviewed at least annually. Such salary shall be subject to discretionary annual
increases as determined by the Board of Directors.
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Such salary shall be payable monthly and in accordance with the Company's normal
payroll procedures. (Executive's annual salary, as set forth above or as it may
be increased from time to time as set forth herein, shall be referred to
hereinafter as "Base Salary"). At no time during the Term of Employment shall
Executive's Base Salary be decreased from the amount of Base Salary then in
effect.
(b) Reimbursement of Lost Income. In consideration of Executive's
(i) forgoing the supplemental income and career enhancement opportunities
normally attendant to a distinguished professorship such as he currently enjoys
at Duke University; and (ii) waiving his right to serve as an outside director
on any corporate board not approved by Company; and (iii) resigning his current
outside consultantships; and (iv) waiving his right, while employed by Company,
to perform any outside consulting work, Company agrees to award Executive in
1999, upon receipt of confirmation of all relevant resignations, a one time
payment of Forty Thousand Dollars ($40,000.00).
(c) Performance Bonus. In addition to the compensation otherwise
payable to Executive pursuant to this Agreement, Executive shall be eligible to
receive an annual bonus up to fifty percent (50%) of his Base Salary ("Bonus")
pursuant to a performance bonus plan (the "Bonus Plan") which may be established
by the Company for its senior executive officers and which shall provide for
bonus compensation to be payable based upon the financial and other performance
of the Company and the Executive.
(d) Long Term Incentive/Stock Options. Upon execution of this
Agreement, the Company shall recommend that the Compensation Committee of the
Board grant Executive options to purchase; (i) two hundred thousand (200,000)
shares of the Company's common stock at a price equal to the fair market value
of the common stock on the date of grant, vesting monthly over a period of four
(4) years beginning March 12, 1999. In addition, during 1999 an additional grant
of options to purchase a minimum of fifty thousand (50,000) shares of the
Company's common stock at a price equal to the fair market value of the common
stock on the date of grant, vesting monthly over a period of four years
beginning on the date of grant will be made to Executive. All options will be
subject to the terms and conditions of the Trimeris, Inc. Amended and Restated
Stock Incentive Plan. In the event of any termination of Executive's employment,
no additional options shall vest but stock options previously vested shall not
be forfeited by Executive.
4. Benefits During the Term of Employment:
(a) Executive shall be eligible to participate in any life,
health and long-term disability insurance programs, pension and retirement
programs, stock option and other incentive compensation programs, and other
fringe benefit programs made available to senior executive employees of the
Company from time to time, and Executive shall be entitled to receive such other
fringe benefits as may be granted to him from time to time by the Company's
Board of Directors.
(b) Executive shall be allowed four (4) weeks of vacation with
pay and leaves of absence with pay on the same basis as other senior executive
employees of the Company.
(c) The Company shall reimburse Executive for reasonable business
expenses incurred in performing Executive's duties and promoting the business of
the Company, including, but not limited to, reasonable entertainment expenses,
travel and lodging expenses, following presentation of documentation in
accordance with the Company's business expense reimbursement policies.
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(d) Executive shall be added as an additional named insured under
all liability insurance policies now in force or hereafter obtained covering any
officer or director of the Company in his or her capacity as an officer or
director. Company shall indemnify Executive in his capacity as an officer or
director and hold him harmless from any cost, expense or liability arising out
of or relating to any acts or decisions made by him on behalf of or in the
course of performing services for the Company (to the maximum extent provided by
the Company's Bylaws and applicable law).
5. Term; Termination of Employment. As used herein, the phrase "Term of
Employment" shall mean the period commencing on the Effective Date and ending on
the same date two (2) years later; provided, however, that as of the expiration
date of each of (i) the initial Term of Employment and (ii) if applicable, any
Renewal Period (as defined below), the Term of Employment shall automatically be
extended for a two (2) year period (each a "Renewal Period") unless either the
Company or Executive provides Two (2) months' notice to the contrary.
Notwithstanding the foregoing, the Term of Employment shall expire on the first
to occur of the following:
(a) Termination by the Company. Notwithstanding anything to the
contrary in this Agreement, whether express or implied, the Company may, at any
time, terminate Executive's employment for any reason other than Cause, Death or
Disability by giving Executive at least 60 days' prior written notice of the
effective date of termination. Company may terminate Employee's employment for
Cause, Death or Disability without prior notice, except that Executive may not
be terminated for substantial and willful failure to perform specific and lawful
directives of the Board, as reasonably determined by the Board unless and until
the Board has given him reasonable written notice of its intended actions and
specifically describing the alleged events, activities or omissions giving rise
thereto and with respect to those events, activities or omissions for which a
cure is possible, a reasonable opportunity to cure such breach; and provided
further, however, that for purposes of determining whether Cause is present, no
act or failure to act by Executive shall be considered "willful" if done or
omitted to be done by Executive in good faith and in the reasonable belief that
such act or omission was in the best interest of the Company and/or required by
applicable law. The terms "Cause" and "Disability" shall have the meaning given
them under the Separation and Severance Agreement.
(b) Termination by Executive. In the event that Executive's employment
with the Company is voluntarily terminated by Executive, the Company shall have
no further obligation hereunder from and after the effective date of termination
except as may be provided in the Separation and Severance Agreement and the
Company shall have all other rights and remedies available under this Agreement
or any other agreement and at law or in equity. Executive shall give the Company
at least 30 days' advance written notice of his intention to terminate his
employment hereunder.
(c) Salary and Benefits Upon Termination. In the event of termination of
employment, Executive shall receive all regular Base Salary due up to the date
of termination, and if it has not previously been paid to Executive, Executive
shall be paid any Bonus to which Executive had become entitled under the Bonus
Plan prior to the effective date of such termination and the Company shall have
no further obligation hereunder from and after the effective date of termination
except as may be provided in the Separation and Severance Agreement and the
Company shall have all other rights and remedies available under this Agreement
or any other agreement and at law or in equity. Executive's stock options with
respect to the Company's stock shall be subject to the terms of the Trimeris,
Inc. Amended and Restated Stock Incentive
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Plan or any successor plan, which is a separate agreement. In the event of
termination, Executive's rights to benefits other than severance shall be
governed by the terms of the Company's retirement, insurance and other benefit
plans and programs then in effect in accordance with the terms of such plans.
Executive's right to severance benefits, if any, shall be governed by the terms
of the Separation and Severance Agreement attached hereto as Exhibit B (the
"Severance Agreement"); provided, however, the Executive, as the Chief
Executive, shall be entitled to de novo review of any material violation of this
Severance Agreement, or denial of any claim, or eligibility for any claim
thereunder exclusively as provided in the Resolution of Dispute provisions of
section 12 of this Employment Agreement. The Severance Agreement is incorporated
in this Agreement by reference and is hereby made a part of this Agreement as if
fully set forth herein.
6. Confidential Information, Non-Solicitation and Non-Competition.
(a) During the Term of Employment and at all times thereafter,
Executive shall not, except as may be required to perform his duties hereunder
or as required by applicable law, disclose to others or use, whether directly or
indirectly, any Confidential Information regarding the Company. "Confidential
Information" shall mean information about the Company, its subsidiaries and
affiliates, and their respective clients and customers that is not available to
the general public and that was learned by Executive in the course of his
employment by the Company, including (without limitation) (i) any proprietary
knowledge, trade secrets, ideas, processes, formulas, cell lines, sequences,
developments, designs, assays and techniques, data, formulae, and client and
customer lists and all papers, resumes, records (including computer records),
(ii) information regarding plans for research, development, new products,
marketing and selling, business plans, budgets and unpublished financial
statements, licenses, prices and costs, suppliers and customers (iii)
information regarding the skills and compensation of other employees of Company
and (iv) the documents containing such Confidential Information. Executive
acknowledges that such Confidential Information is specialized, unique in nature
and of great value to the Company, and that such information gives the Company a
competitive advantage. Upon the termination of his employment for any reason
whatsoever, Executive shall promptly deliver to the Company all documents,
slides, computer tapes and disks (and all copies thereof) containing any
Confidential Information.
(b) During the Term of Employment and for two (2) years
thereafter, Executive shall not, directly or indirectly in any manner or
capacity (e.g., as an advisor, principal, agent, partner, officer, director,
shareholder, employee, member of any association or otherwise) engage in, work
for, consult, provide advice or assistance or otherwise participate in any
activity which is competitive with the business of the Company which is
worldwide ("Competing Business" or "Competitor"). Executive further agrees that
during such period he will not assist or encourage any other person in carrying
out any activity that would be prohibited by the foregoing provisions of this
Section 6 if such activity were carried out by Executive and, in particular,
Executive agrees that he will not induce any employee of the Company to carry
out any such activity; provided, however, that the "beneficial ownership" by
Executive, either individually or as a member of a "group," as such terms are
used in Rule 13d of the General Rules and Regulations under the Exchange Act, of
not more than five percent (5%) of the voting stock of any publicly held
corporation shall not be a violation of this Agreement. It is further expressly
agreed that the Company will or would suffer irreparable injury if Executive
were to compete with the Company or any subsidiary or affiliate of the Company
in violation of this
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Agreement and that the Company would by reason of such competition be entitled
to injunctive relief in a court of appropriate jurisdiction.
"Competing Business" is defined as the business of the discovery,
development, testing, manufacturing, and/or marketing therapeutic components for
the treatment of human viral diseases based on a viral fusion protein target and
any other business in which the Company may engage or propose to engage during
the term of this Agreement.
(c) During the Term of Employment and for two (2) years
thereafter, Executive shall not, directly or indirectly, influence or attempt to
influence customers or suppliers of the Company or any of its subsidiaries or
affiliates, to divert their business to any Competitor of the Company.
(d) Executive recognizes that he will possess confidential
information about other employees of the Company relating to their education,
experience, skills, abilities, compensation and benefits, and interpersonal
relationships with customers of the Company. Executive recognizes that the
information he will possess about these other employees is not generally known,
is of substantial value to the Company in developing its business and in
securing and retaining customers, and will be acquired by him because of his
business position with the Company. Executive agrees that, during the Term of
Employment, and for a period of two (2) years thereafter, he will not, directly
or indirectly, solicit or recruit any employee of the Company for the purpose of
being employed by him or by any Competitor of the Company on whose behalf he is
acting as an agent, representative or employee and that he will not at any time
convey any such confidential information or trade secrets about other employees
of the Company to any other person.
(e) Executive agrees and understands that Company has received,
and in the future will receive, from third parties confidential or proprietary
information ("Third Party Information") subject to a duty on Company's part to
maintain the confidentiality of such information and to use it only for certain
limited purposes. During the term of Executive's employment and thereafter,
Executive will hold Third Party Information in the strictest of confidence and
will not disclose (to anyone other than Company personnel who need to know such
information in connection with their work for Company), or use, except in
connection with any work for Company, Third Party Information unless expressly
and specifically authorized to do so prior to any proposed disclosure by an
officer of Company.
(f) Inventions
(i) Assignment. Executive hereby assigns to Company all
his right, title and interest in and to any and all Inventions (and all patent
rights, copyright, trade secret rights and all other rights throughout the world
in connection therewith, whether or not patentable or registerable under
copyright, trademark or similar statutes), together with all goodwill associated
therewith, (all of the foregoing being hereinafter referred to collectively as
"Proprietary Rights"), made, conceived, reduced to practice or learned by
Executive, either alone or jointly with others, during his period of employment
with Company. Inventions assigned under this Section 3 are hereinafter referred
to as "Company Inventions". Executive agrees to assist Company in every
necessary way to obtain or enforce any patents, copyrights or any proprietary
rights relating to Company Inventions and to execute all documents and
applications necessary to vest in Company's full legal title to such Company
Inventions, and Executive agrees to continue this assistance after the
termination of his employment with Company. Furthermore, Executive hereby
designates and appoints Company and its officers and agents as his agents and
attorneys-in-fact to execute and file any certificates, applications or
documents and to do all
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other lawful acts reasonably necessary in the opinion of Company to protect
Company's rights in Company Inventions. Executive expressly acknowledges that
the foregoing power of attorney is coupled with an interest and is therefore
irrevocable and will survive Executive's termination of employment, death or
incompetency.
(ii) Government. Executive also will assign to or as
directed by Company all his right, title and interest in and to any and all
Inventions, full title to which may required to be in the United States by a
contract between Company and the United States or any of its agencies.
(iii) Independent Inventions. Notwithstanding anything in
this Agreement to the contrary, Executive's obligation to assign or offer to
assign Executive's rights in an Invention to Company will not extend or apply to
an Invention that Executive has developed entirely on Executive's own time
without using Company's equipment, supplies, facilities or trade secret
information unless such Invention: (a) relates to Company's business or actual
demonstrably anticipated research or development or (b) results from any work
performed by Executive for Company. Executive will bear the burden of proof in
establishing that the Invention qualifies for exclusion under this Subsection
6f(iii).
(iv) Assignment of Company Inventions: Executive will
assist Company in every proper way to obtain and from time to time enforce
United States and foreign Proprietary Rights related to Company Inventions in
any and all countries. Executive's obligation to assist Company with respect to
Proprietary Rights relating to such Company Inventions will continue beyond the
termination of Executive's employment, but Company will compensate Executive at
a reasonable rate after Executive's termination for the time actually spent by
executive at Company's request on such assistance.
Executive hereby waives and quitclaims to Company all claims, of any
nature whatsoever, which Executive may or may hereafter have for infringement,
including past infringements, of any Proprietary Rights assigned hereunder to
Company.
(v) Obligation to Keep Company Informed: During the period
of Executive's employment, Executive will promptly disclose to Company fully and
in writing, and will hold in trust for the sole right and benefit of Company,
any and all Inventions. In addition, after termination of Executive's
employment, Executive will disclose all patent applications filed by Executive
within a year after termination of such employment.
(vi) Prior Inventions: Inventions, if any, patented or
unpatented, which Executive made prior to Executive's commencement of employment
with Company are excluded from the scope of this Agreement. To preclude any
possible uncertainty, Executive has set forth on the attached Exhibit A, a
complete list of all Inventions that Executive has, alone or jointly with
others, conceived, developed or reduced to practice or caused to be conceived,
developed or reduced to practice prior to the commencement of Executive's
employment with Company, that Executive considers to be Executive's property or
the property of the third parties, and Executive wishes to have excluded from
the scope of this Agreement. If disclosure of any such Invention on Exhibit A
would cause Executive to violate any prior confidentiality agreement with
another party, Executive understands that he is not to list such Inventions in
Exhibit A but that I am to inform Company in writing that all such Inventions
have not been listed for that reason.
(g) If it is determined by a court of competent
jurisdiction in any state that any restriction in this Section 6 is excessive in
duration or scope or is unreasonable or unenforceable under the laws of that
state, it is the intention of the parties that such restriction may be modified
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or amended by the court to render it enforceable to the maximum extent permitted
by the law of that state.
7. Return of Company Documents: In the event Executive leaves the
employment of Company for whatever reason, Executive agrees to deliver to
Company any and all laboratory notebooks, drawings, notes, memoranda,
specifications, devices, software, databases, formulas, molecules, cells and
documents, together with all copies thereof, and any other material containing
or disclosing any Company Inventions, Third Party Information or Confidential
Information of Company. Executive further agrees that any property situated on
Company's premises and owned by Company including disks and other storage media,
filing cabinets or other work areas, is subject to inspection by Company
personnel at any time, with or without notice, for the purpose of protecting
Company's rights and interests in its intellectual property.
8. Taxes. All payments to be made to Executive under this Agreement will
be subject to any applicable withholding of federal, state and local income and
employment taxes.
9. Miscellaneous. This Agreement shall also be subject to the following
miscellaneous considerations:
(a) Executive and the Company each represent and warrant to the
other that he or it has the authorization, power and right to deliver, execute,
and fully perform his or its obligations under this Agreement in accordance with
its terms.
(b) This Agreement (including attached Exhibits A and B) contains
a complete statement of all the arrangements between the parties with respect to
Executive's employment by the Company, this Agreement supersedes all prior and
existing negotiations and agreements between the parties concerning Executive's
employment, and this Agreement can only be changed or modified pursuant to a
written instrument duly executed by each of the parties hereto.
(c) If any provision of this Agreement or any portion thereof is
declared invalid, illegal, or incapable of being enforced by any court of
competent jurisdiction, the remainder of such provisions and all of the
remaining provisions of this Agreement shall continue in full force and effect.
(d) This Agreement shall be governed by and construed in
accordance with the internal, domestic laws of the State of North Carolina.
(e) The Company may assign this Agreement to any direct or
indirect subsidiary or parent of the Company or joint venture in which the
Company has an interest, or any successor (whether by merger, consolidation,
purchase or otherwise) to all or substantially all of the stock, assets or
business of the Company and this Agreement shall be binding upon and inure to
the benefit of such successors and assigns. Except as expressly provided herein,
Executive may not sell, transfer, assign, or pledge any of his rights or
interests pursuant to this Agreement.
(f) Any rights of Executive hereunder shall be in addition to any
rights Executive may otherwise have under benefit plans, agreements, or
arrangements of the Company to which he is a party or in which he is a
participant, including, but not limited to, any Company-sponsored employee
benefit plans. Provisions of this Agreement shall not in any way abrogate
Executive's rights under such other plans, agreements, or arrangements.
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(g) For the purpose of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
certified or registered mail, return receipt requested, postage prepaid,
addressed to the named Executive at the address set forth below under his
signature; provided that all notices to the Company shall be directed to the
attention of the Board with a copy to the Secretary of the Company, or to such
other address as either party may have furnished to the other in writing in
accordance herewith, except that notice of change of address shall be effective
only upon receipt.
(h) Section headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose.
(i) Failure to insist upon strict compliance with any of the
terms, covenants, or conditions hereof shall not be deemed a waiver of such
term, covenant, or condition, nor shall any waiver or relinquishment of, or
failure to insist upon strict compliance with, any right or power hereunder at
any one or more times be deemed a waiver or relinquishment of such right or
power at any other time or times.
(j) This Agreement may be executed in several counterparts, each
of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
10. Legal and Equitable Remedies: Because the Executive's services are
personal and unique, and because the Executive will have access to and become
acquainted with Proprietary and Confidential Information of Company, Company
will have the right to enforce this Agreement and any of its provisions by
injunction, specific performance or other equitable relief in any court of
competent jurisdiction, without prejudice to any other rights and remedies that
Company may have for a breach of this Agreement.
11. Survival of Provisions: The executory provisions of this Agreement
will survive the termination of this Agreement or the assignment of this
Agreement by Company to any successor in interest or other assignee.
12. Resolution of Disputes. Except as otherwise specifically provided in
section 10 of the Chief Executive Separation and Severance Agreement attached
hereto, any dispute or controversy arising under or in connection with this
Agreement and Severance Agreement shall be settled exclusively by arbitration
administered by the American Arbitration Association and conducted before a
panel of three arbitrators in Raleigh, Wake County, North Carolina, all in
accordance with its Commercial Arbitration rules then in effect. The Company and
Executive hereby agree that the arbitrator will not have the authority to award
punitive damages, damages for emotional distress or any other damages that are
not contractual in nature. Judgment shall be final and binding upon the parties
and judgement may be entered on the arbitrator's award in any court having
jurisdiction; provided, however, that (a) the Company shall be entitled to seek
a restraining order or injunction in any court of competent jurisdiction to
prevent any violation or the continuation thereof, of the provisions of Section
6 of this Agreement, and Executive consents that such restraining order or
injunction may be granted without the necessity of the Company's posting any
bond except to the extent otherwise required by applicable law; and (b)
notwithstanding anything in the Severance Agreement to the contrary, the
Executive, as Chief Executive, shall be entitled by arbitration to seek de novo
review of any material violation of the
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Severance Agreement in accordance with paragraph 10 of such Severance Agreement
or any denial of a claim or obligation to pay a claim thereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
EXECUTIVE COMPANY
TRIMERIS, INC.
BY: /s/ Xxxx Xxxxxxxxx BY: /s/ Xxxxx X. Xxxx
------------------------- ----------------------------
TITLE: CHIEF EXECUTIVE OFFICER NAME: Xxxxx X. Xxxx
--------------------------
TITLE: Chairman of the Board
--------------------------
ADDRESS:_____________________ ADDRESS:_______________________
_____________________ _______________________
_____________________ _______________________
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EXHIBIT A
TO
EMPLOYMENT AGREEMENT
1. The following is a complete list of all inventions or improvements relevant
to the subject matter of my employment by Company, Inc. that have been made or
conceived or first reduced to practice by me alone or jointly with others prior
to my employment by Company, Inc. and therefore should be excluded from the
coverage of this Agreement:
____ Additional sheets attached.
____ No pertinent inventions or improvements.
____ Due to confidentiality agreements with one or more prior employers, I
cannot disclose certain inventions that would otherwise be included on the
above-described list.
2. I propose to bring to my employment the following devices, materials and
documents of a former employer or other person to whom I have an obligation of
confidentiality and that are not generally available to the public. These
materials and documents may be used in my employment pursuant to the express
written authorization of my former employer or such other person (a copy of
which is attached hereto). If no such authorization is in place, I will consult
with Trimeris, Inc. management to determine what steps should be taken to
protect the interests of all parties concerned.:
____ Additional sheets attached.
____ No material.
Date:
EXECUTIVE:
______________________________
__________________
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EXHIBIT B TO CHIEF EXECUTIVE EMPLOYMENT AGREEMENT
CHIEF EXECUTIVE SEPARATION AND SEVERANCE
AGREEMENT
THIS SEPARATION AND SEVERANCE AGREEMENT (the "Severance Agreement") is
made a part of that Employment Agreement (the "Employment Agreement"), entered
into and effective as of the _______ day of ________________, 1999, by and
between XXXX X. XXXXXXXXX, an individual resident of the State of North Carolina
("Executive"), and TRIMERIS, INC., a Delaware corporation (the "Company").
W I T N E S S E T H:
WHEREAS, the Company desires to employ Executive and to provide for
severance benefits under the terms and conditions set forth herein; and
WHEREAS, this Severance Agreement constitutes part of the Employment
Agreement and is incorporated therein by reference and fully set forth therein.
COVENANTS
NOW, THEREFORE, in consideration of the premises, mutual promises
contained herein, and other valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
1. Certain Definitions. The following terms shall have the meanings set
forth herein.
(a) "Administrator" shall mean the Company. The Company shall also be
the "named fiduciary" hereunder. The Company shall have the
authority to designate one or more of its officers, employees or
directors to act on its behalf in administering this Severance
Agreement.
(b) "Base Salary" shall mean Executive's regular pay at the time of
termination. Base Salary shall not include bonus or incentive
plans, overtime pay, relocation allowances or the value of any
other benefits for which Executive may be eligible.
(c) "Good Reason" shall mean, without the express written consent of
Executive, the occurrence of any of the following events unless
such events are fully corrected within 30 days following written
notification by Executive to the Company that he intends to
terminate his employment hereunder for one of the reasons set
forth below:
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(i) a material breach by the Company of any provision of
this Agreement, including, but not limited to, the assignment to
Executive of any duties inconsistent with Executive's position in
the Company or a material adverse alteration in the nature or
status of Executive's responsibilities;
(ii) the Company's requiring the Executive to be based
anywhere other than the metropolitan area where he currently
works and resides; and
(iii) the occurrence of a "Change in Control" as defined
below.
For purposes of this Agreement a "Change in Control" shall mean an event
as a result of which: (i) any "person" (as such term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act")), is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act,
except that a person shall be deemed to have "beneficial ownership" of all
securities that such person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of more than 50% of the total voting power of the voting stock of
the Company; (ii) the Company consolidates with, or merges with or into another
corporation or sells, assigns, conveys, transfers, leases or otherwise disposes
of all or substantially all of its assets to any person, or any corporation
consolidates with, or merges with or into, the Company, in any such event
pursuant to a transaction in which the outstanding voting stock of the Company
is changed into or exchanged for cash, securities or other property, other than
any such transaction where (A) the outstanding voting stock of the Company is
changed into or exchanged for (i) voting stock of the surviving or transferee
corporation or (ii) cash, securities (whether or not including voting stock) or
other property, and (B) the holders of the voting stock of the Company
immediately prior to such transaction own, directly or indirectly, not less than
50% of the voting power of the voting stock of the surviving corporation
immediately after such transaction; or (iii) during any period of two
consecutive years, individuals who at the beginning of such period constituted
the Board of the Company (together with any new directors whose election by such
Board or whose nomination for election by the stockholders of the Company was
approved by a vote of 66-2/3% of the directors then still in office who were
either directors at the beginning of such period or whose election or nomination
for election was previously so approved) cease for any reason to constitute a
majority of the Board of the Company then in office; or (iv) the Company is
liquidated or dissolved or adopts a plan of liquidation, provided, however, that
a Change in Control shall not include any going private or leveraged buy-out
transaction which is sponsored by Executive or in which Executive acquires an
equity interest materially in excess of his equity interest in the Company
immediately prior to such transaction (each of the events described in (i),
(ii), (iii) or (iv) above, except as provided otherwise by the preceding clause
being referred to herein as a "Change in Control"). In the event of a sale of
the assets or stock of the Company, the Executive shall have the option of
electing to terminate his employment due to a Change in Control and receive such
severance benefits or electing to remain employed under the terms of this
Agreement, but not both. Executive's right to terminate his employment for Good
Cause due to any "Change in Control" must be exercised within sixty (60) days
after receiving written notice or his receiving actual knowledge of such Good
Cause.
(d) Cause shall mean:
(i) fraud, misappropriation, embezzlement, or other act of
material misconduct against the Company or any of its affiliates;
(ii) substantial and willful failure to perform specific
and lawful directives of the Board;
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(iii) willful and knowing violation of any rules or
regulations of any governmental or regulatory body, which is
materially injurious to the financial condition of the Company;
or
(iv) conviction of or plea of guilty or nolo contendere to
a felony;
(v) a material breach of the terms and conditions of this
Agreement: provided, however, that with regard to subparagraphs
(ii) and (v) above, Executive may not be terminated for Cause
unless and until the Board has given him reasonable written
notice of its intended actions and specifically describing the
alleged events, activities or omissions giving rise thereto and
with respect to those events, activities or omissions for which a
cure is possible, a reasonable opportunity to cure such breach;
and provided further, however, that for purposes of determining
whether any such Cause is present, no act or failure to act by
Executive shall be considered "willful" if done or omitted to be
done by Executive in good faith and in the reasonable belief that
such act or omission was in the best interest of the Company
and/or required by applicable law.
(e) Disability shall mean that as a result of Executive's incapacity due
to physical or mental illness (as determined in good faith by a physician
acceptable to the Company and Executive), Executive shall have been absent from
the full-time performance of his duties with the Company for 120 consecutive
days during any twelve (12) month period or if a physician acceptable to the
Company and Executive advises the Company that it is likely that Executive will
be unable to return to the full-time performance of his duties for 120
consecutive days during the succeeding twelve (12) month period.
2. Responsibility for Benefits. The Company will pay the entire cost of
all benefits provided under this Severance Agreement, solely from its general
assets. The benefits made available by this Severance Agreement are "unfunded,"
and Executive is not required or permitted to make any contribution with respect
to this Severance Agreement.
3. Payment of Benefits. In the event Executive's employment is
terminated (a) by the Company other than for Cause, Disability or Death or (b)
by Executive for Good Reason (as defined herein), Executive shall receive the
following severance benefits upon his satisfaction of the condition in paragraph
4 hereof: (i) his Base Salary during the period commencing on the effective date
of such termination and ending two (2) years later (the "Salary Continuation
Period"), as if Executive were still employed during the Salary Continuation
Period; and (ii) during the Salary Continuation Period, Executive and his spouse
and dependents shall be entitled to continue to be covered by the Company's
group medical, health and accident insurance plan to the extent such coverage
was in effect as of the date of such termination, at the same coverage level and
on the same terms and conditions which applied immediately prior to the date of
Executive's termination of employment; provided, however, that if, as the result
of the termination of Executive's employment, Executive and/or his otherwise
eligible dependents or beneficiaries shall become ineligible for benefits under
such plans, Executive and his spouse and dependents shall be entitled to
continuation coverage pursuant to Section 4980B of the Internal Revenue Code of
1986, as amended, Sections 601-608 of the Employee Retirement Income Security
Act of 1974, as amended, and under any other applicable law, to the extent
required by such laws, and the Company shall reimburse Executive for the cost of
such continuation coverage to the extent such coverage would have been provided
at no cost to Executive prior to his termination, for a period of up to two (2)
years following his termination or, if sooner, until the expiration of
Executive's continuation coverage rights.
22
4. Conditions to Receipt of Benefits. Upon the occurrence of an event
described in Section 3 above, Executive will be eligible for severance benefits
hereunder only if Executive executes and delivers to the Company a Settlement
Agreement and Release in the form of Exhibit 1 attached hereto and made a part
hereof.
5. Termination Events Not Covered. Notwithstanding anything to the
contrary contained herein, the Company shall not pay Executive severance
benefits under this Severance Agreement if:
(a) Executive dies during the term of his employment;
(b) Executive's employment is terminated for Cause or Disability, as
defined herein;
(c) Executive terminates his employment with Company for a reason other
than Good Reason as defined herein; or
(d) Executive revokes his agreement to release the Company from any and
all claims related to his employment pursuant to the Settlement
Agreement and Release executed in satisfaction of Section 4 hereof.
6. How Severance Benefits Are Paid. The Company will pay severance benefits in
installments through the Company's regular payroll procedure according to
Executive's pay schedule at the time of termination of employment; provided
however, the Administrator shall have the discretion to cause the Company to pay
all severance benefits in a lump sum payment, or to cause the Company to
postpone commencement of benefits until the eighth (8th) day following
Executive's execution of the Settlement Agreement and Release. Executive's
severance benefits shall be subject to mandatory withholding, including federal,
state and local income taxes, as well as FICA and withholding for applicable
insurance premiums.
7. Administration. The Administrator shall have all powers
necessary or helpful to administering this Severance Agreement in all its
details, and shall have full discretionary authority in exercising such powers.
This authority includes, but is not limited to, the power:
(a) To make rules and regulations for the administration
of this Severance Agreement;
(b) To make any finding of fact necessary or appropriate
for any purpose under this Severance Agreement, including, but not limited to,
the determination of eligibility for and the amount of any benefit payable under
this Severance Agreement; and
(c) To interpret the terms and provisions of this
Severance Agreement and to determine any and all questions arising out of this
Severance Agreement or in connection with its administration. This authority
shall include, but is not limited to, the right to remedy or resolve possible
ambiguities, inconsistencies or omissions, by general rule or particular
decision.
23
(d) The Administrator shall exercise the powers conferred
by this Severance Agreement in its sole and absolute discretion, and all its
acts and determinations will be final and binding upon all interested parties
subject to the de novo review by arbitration as provided in this Severance
Agreement and Employment Agreement.
8. Benefit Claims and Appeal Procedures. Executive has the right to make
a written claim for benefits under this Severance Agreement. If all or part of
Executive's claim for benefits is denied, or if there is a dispute regarding
Executive's rights under this Severance Agreement, the Administrator will notify
Executive in writing of the reasons for the denial of Executive's claim. The
notice will refer to the appropriate provision of this Severance Agreement on
which the denial or decision is based. The notice will also describe how claims
are reviewed and outline the steps for an appeal. Usually, the Administrator
will give Executive written notice of its decision within ninety (90) days of
receipt of the claim. However, the Administrator may in some cases require
additional time to complete its review, due to special circumstances. The
Administrator will notify Executive if additional time is required for review of
the claim. If Executive disagrees with the Administrator's decision, Executive
may appeal and request a review of the case by the Administrator. Executive must
request a review of the claim in writing within sixty (60) days after the
Administrator notifies Executive of its decision. Executive's request must state
why Executive disagrees with the decision, and Executive must include any
information, questions or comments to support his appeal. Executive or his legal
representative may review any documents related to the claim. The Administrator
will review the appeal and notify Executive of its decision within sixty (60)
days after receipt of the appeal; however, the Administrator may in some cases
require additional time to complete its review, due to special circumstances.
The Administrator will notify Executive if additional time is required for
review of the appeal. The Administrator will notify Executive of its final
decision and the reasons for the decision.
9. Additional Information Regarding this Severance Agreement.
(a) This Severance Agreement shall not be amended except by a
written agreement executed by Executive and by an authorized officer of the
Company(other than Executive).
(b) The Employment Agreement and this Severance Agreement
provides the sole and exclusive agreement concerning severance benefits for
Executive in the event of a termination and replaces any and all prior plans,
policies and practices relating to severance pay that may exist now or may have
existed in the past.
(c) To the extent not preempted by ERISA, the Employment
Agreement and this Severance Agreement shall be governed by and construed
according to the laws of the state of North Carolina.
(d) If a provision of this Severance Agreement shall be held
illegal or invalid, the legality or invalidity shall not affect the remaining
provisions of this Severance Agreement, and this Severance Agreement shall be
construed and enforced as if the illegal or invalid provision had not been
included.
24
(e) Executive acknowledges that no representation, promise or
inducement has been made other than as set forth in the Employment Agreement and
this Severance Agreement, and that he does not enter into this Employment
Agreement and Severance Agreement in reliance upon any representation, promise
or inducement not set forth herein and the Employment Agreement. The Employment
Agreement and this Severance Agreement supersedes all prior negotiations and
understandings of any kind with respect to the subject matter and contains all
of the terms and provisions of the agreement between Executive and the Company
with respect to the subject matter hereof. Any representation, promise or
condition, whether written or oral, not specifically incorporated herein, shall
be of no binding effect.
10. Executive's Rights Under ERISA. As a participant under this
Severance Agreement, Executive is entitled to certain rights and protections
under ERISA. Executive may examine all documents relating to the Severance
Agreement without charge. These may include annual financial reports, plan
descriptions and all other official documents filed with the United States
Department of Labor (if any). Executive may obtain copies of documents relating
to this Severance Agreement and certain other information by writing to the
Administrator. The Administrator may impose a reasonable charge for the copies.
In addition to creating rights for the Executive as a participant under this
Severance Agreement, ERISA imposes certain duties on the people who are
responsible for operating this Severance Agreement. These people are called
"fiduciaries." The fiduciaries have a duty to operate the Severance Agreement
prudently and in the interest of the Executive. The Company may not terminate
Executive's employment or otherwise discriminate against Executive in any way to
prevent him from obtaining a severance benefit or exercising rights under ERISA.
Under ERISA, Executive may take the following steps to enforce his rights: (a)
if Executive requests certain materials from the administrator regarding this
Severance Agreement and does not receive them within 30 days, Executive may file
suit in a federal court; in such a case, the court may require the Administrator
to provide the materials and pay Executive up to $100 a day until Executive
receives the materials, unless the materials were not sent due to reasons beyond
the control of the Administrator; (b) if Executive's claim for benefits is
denied or ignored in whole or in part, Executive may file suit in federal court;
(c) if Executive is discriminated against for pursuing a benefit or exercising
ERISA rights, Executive may seek help from the United States Department of Labor
or file suit in a federal court. If Executive files a suit, the court will
decide who should pay court costs and legal fees. If Executive has any questions
about this statement or about ERISA rights, Executive should contact the
Administrator. Executive may also contact the nearest area office of the Pension
and Welfare Benefit Administration, United States Department of Labor.
11. Miscellaneous Information About this Severance Agreement. This
section provides general information about this Severance Agreement required by
the Employee Retirement Income Security Act of 1974 ("ERISA"). Participation in
this Severance Agreement is subject to the execution by the Executive of a
Settlement Agreement and Release with the Company. This Agreement shall not be
construed in any manner to give any Company employee other than the Executive
the right to severance benefits upon termination of employment.
Plan Sponsor: Trimeris, Inc.
Tax ID Number: 00-0000000
25
Plan Name: Trimeris, Inc. 1999 Chief Executive Employment
Agreement and Separation and Severance Plan
Plan Number: _______
Plan Year: Calendar year
Plan Type: Welfare benefit plan
Effective Date: March 12, 1999
Agent For Service
of Legal Process: Trimeris, Inc.
Attention: Secretary
IN WITNESS WHEREOF, the parties hereto have executed this Severance
Agreement under seal as of the date first set forth above (the individual party
adopting the word "SEAL" as his seal).
COMPANY:
TRIMERIS, INC.
By:_______________________________
Name:
Title:
EXECUTIVE:
____________________________(SEAL)
Name:
Address:
26
EXHIBIT 1
SETTLEMENT AGREEMENT AND RELEASE
THIS SETTLEMENT AGREEMENT AND RELEASE ("Settlement Agreement") sets out
the complete agreement and understanding between Trimeris, Inc. (the "Company")
and Xxxx X. Xxxxxxxxx ("Executive") regarding the termination of Executive's
employment with the Company.
I. RELEASE AND WAIVER: For and in consideration of the severance payments
described in that certain Separation and Severance Agreement dated as of
____________________________ between the Company and Executive (the "Severance
Agreement"), to be paid beginning no sooner than the eighth day following
execution of this document, Executive hereby releases, waives and forever
discharges the Company, its parent, affiliates and subsidiaries, and all of its
benefit plans, plan administrators, trustees, agents, subsidiaries, affiliates,
employees, officers, shareholders, successors and assigns (hereafter "the
Releasees") from any and all liability, actions, charges, causes of action,
demands, damages, attorneys fees or claims for relief or remuneration of any
kind whatsoever, whether known or unknown at this time, arising out of or in any
way connected with Executive's employment, or the termination of employment,
with the Company. These include, but are not limited to, any claim (including
related attorneys' fees and costs) under the Age Discrimination in Employment
Act, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities
Act, the Worker's Adjustment and Retraining Notification Act, the Equal Pay Act,
the Post Civil War Civil Rights Act, the Fair Labor Standards Act, the Family
and Medical Leave Act, the North Carolina Wage and Hour Act, the North Carolina
Hazardous Chemicals Right to Know Act, the North Carolina Retaliatory Employment
Discrimination Act, all as amended, or any other federal, state or local law or
ordinance, and any claim for benefits or other claims under the Employee
Retirement Income Security Act of 1974, as amended (except as expressly provided
below). This waiver, release and discharge also includes without limitation, any
wrongful or unlawful discharge claims, discipline or retaliation claims, any
claims relating to any contract of employment, whether express or implied, any
claims related to promotions or demotions, any claims for or relating to
relocation, compensation including commissions, short term or long term
incentives, the Company's Executive benefit plans and the management thereof
(except as expressly provided below), any claims for defamation, slander, libel,
invasion of privacy, misrepresentation, fraud, infliction of emotional distress,
any claims based on stress to the extent permitted by law, any claims for breach
of any covenant of good faith and fair dealing, and any other claims relating to
the Executive's employment with the Company and termination thereof. This
Settlement Agreement does not apply to any claims or rights that may arise under
the Age Discrimination in Employment Act after the date that this Settlement
Agreement is signed.
Executive expressly waives all claims, including those which he/she does
not know or suspect to exist in his/her favor as of the date of this Settlement
Agreement. As used in this Settlement Agreement, the parties understand the word
"claims" to include all actions, claims and grievances, whether actual or
potential, known or unknown, and specifically but not exclusively including all
claims against the Releasees arising from Executive's employment with the
Company, the termination thereof or any other conduct by the Releasees occurring
on or
27
prior to the date Executive signs this Settlement Agreement. All such claims are
forever barred by this Settlement Agreement whether they arise in contract or
tort or under a statute or any other law.
Executive also understands and agrees that this release extinguishes all
claims, whether known or unknown, foreseen or unforeseen, and expressly waives
any rights or benefits under any law or judicial decision providing that, in
substance, a general release does not extend to claims which a creditor does not
know or suspect to exist in his/her favor at the time of executing the release,
which if known by him must have materially affected his/her settlement with a
debtor. It is expressly understood and agreed by the parties that this
Settlement Agreement is in full accord, satisfaction and discharge of any and
all doubtful and/or disputed claims by Executive against the Releasees, and that
this Settlement Agreement has been signed with the express intent of
extinguishing all claims, obligations, actions or causes of action as herein
described.
The Executive's waiver of claims relating to or arising under the
Employee Retirement Income Security Act of 1974, as amended, or the Company's
401(K) PLAN, shall not be construed as a waiver of the Executive's right to
receive his/her vested benefits under such plan, if any, in accordance with the
terms and provisions of such plan, or as a waiver of the Executive's right to
reimbursement for covered expenses under and in accordance with the terms and
provisions of the Company's health or dental insurance plans, to the extent such
covered expenses were incurred during a period in which the Executive was
eligible to participate and in fact was participating in such plans.
II. VOLUNTARY AGREEMENT AND OTHER ACKNOWLEDGMENTS: Executive acknowledges that:
I have read this Settlement Agreement, and I understand its legal and binding
effect. I am knowingly and voluntarily executing this Settlement Agreement of my
own free will.
The severance benefits under the Severance Agreement are in addition to and in
excess of benefits to which I am otherwise entitled.
I have had the opportunity to seek, and the Company has expressly advised me to
seek, legal counsel prior to signing this Settlement Agreement.
I have been given at least 45 days from the date I received this form to
consider the severance benefits being offered to me and the terms of this
Settlement Agreement.
At the beginning of that 45 day period, I also received a description of: (1)
the class, unit, or group of individuals covered by the severance and separation
plan (if any), the eligibility factors for this program, and any time limits
applicable to the program; and (2) the job titles and ages of all individuals
being asked to execute this Settlement Agreement in exchange for payment of
severance benefits (if any) and the job titles and ages of all individuals in
the same job classification or organizational unit who are not being asked to
execute this Settlement Agreement.
I understand that in signing this Settlement Agreement, I am releasing the
Releasees from any and all claims I may have against them (except as expressly
provided herein), including but not limited to claims under the Age
Discrimination in Employment Act.
28
III. REVOCATION OF SETTLEMENT AGREEMENT: I understand that I can change my mind
and revoke my signature on this Settlement Agreement within seven days after
signing it by hand delivering notice of such revocation to the Chairman of the
Compensation Committee of the Company. I understand that if I revoke this
Settlement Agreement, I will not be entitled to any severance benefits under the
Severance Agreement. I understand that, unless properly revoked by me during
this seven-day period, the release and waiver in the first section above will
become effective seven days after I sign the Settlement Agreement.
VII. COMPLETE AGREEMENT: I acknowledge that no representation, promise or
inducement has been made other than as set forth in this Settlement Agreement,
and that I do not enter into this Settlement Agreement in reliance upon any
representation, promise or inducement not set forth herein. This Settlement
Agreement supersedes all prior negotiations and understandings of any kind with
respect to the subject matter and contains all of the terms and provisions of
agreement between the Executive and the Company with respect to the subject
matter hereof. Any representation, promise or condition, whether written or
oral, not specifically incorporated herein, shall be of no binding effect.
VIII. GOVERNING LAW: This Settlement Agreement shall be governed by the Employee
Retirement Income Security Act and, where applicable, the law of the State of
North Carolina.
IX. SEVERABILITY: In the event any provision of this Settlement Agreement shall
be held to be void, voidable, unlawful or, for any reason, unenforceable, the
remaining portions shall remain in full force and effect. The unenforceability
or invalidity of a provision of this Settlement Agreement in one jurisdiction
shall not invalidate or render that provision unenforceable in any other
jurisdiction. If Executive's release and waiver pursuant to Section I of this
Settlement Agreement is found to be unenforceable, however, Executive agrees
that he/she will either sign a valid release and waiver of claims in favor of
the Company and the Releasees or promptly return the severance benefits received
by Executive.
X. BINDING EFFECT: This Settlement Agreement is binding upon, and shall inure to
the benefit of, the parties and their respective heirs, executors,
administrators, successors and assigns.
XI. NO ADMISSIONS: This Settlement Agreement is not intended as, and shall not
be construed, as an admission that the Company and Releasees or any of them have
violated any federal, state or local law, ordinance or regulation, breached any
contract, or committed any wrong whatsoever against Executive.
AGREED AND UNDERSTOOD:
EXECUTIVE:
------------------------- -----------------------
Name: Xxxx X. Xxxxxxxxx Date
