Employment Agreement By and Between Epimmune Inc. and Bonnie Mills
Table of Contents
| Page | ||||||
1. |
EMPLOYMENT | 1 | ||||
2. |
LOYAL AND CONSCIENTIOUS PERFORMANCE; NONCOMPETITION | 2 | ||||
3. |
COMPENSATION OF THE EXECUTIVE | 3 | ||||
4 |
TERMINATION | 5 | ||||
5. |
CONFIDENTIAL AND PROPRIETARY INFORMATION; NONSOLICITATION | 10 | ||||
6. |
ASSIGNMENT AND BINDING EFFECT | 10 | ||||
7. |
NOTICES | 10 | ||||
8. |
CHOICE OF LAW | 11 | ||||
9. |
INTEGRATION | 11 | ||||
10. |
AMENDMENT | 11 | ||||
11. |
WAIVER | 11 | ||||
12. |
SEVERABILITY | 12 | ||||
13. |
INTERPRETATION; CONSTRUCTION | 12 | ||||
14. |
REPRESENTATIONS AND WARRANTIES | 12 | ||||
15. |
COUNTERPARTS | 12 | ||||
16. |
ARBITRATION | 12 | ||||
17. |
TRADE SECRETS OF OTHERS | 13 | ||||
18. |
ADVERTISING WAIVER | 13 | ||||
i
EXECUTION COPY
This
Employment Agreement (this “Agreement”) is made and entered into as of June 6,
2005 by and among EPIMMUNE INC., a Delaware corporation (the
“Company”) and Xxxxxx Xxxxx (the
“Executive”). This Agreement shall become
effective (the “Effective Date”) as of the closing date
of that certain Share Exchange Agreement made and entered into as of March 15, 2005 (the “Exchange
Agreement”), as amended, between the Company and certain shareholders of IDM, S.A., a société
anonyme organized under the laws of France (“IDM”). The Company and the Executive are hereinafter
collectively referred to as the “Parties”,
and individually referred to as a “Party”. Those
capitalized terms used herein and not otherwise defined shall have the meanings given to such terms
in the Exchange Agreement.
Recitals
A. The Executive currently serves as Vice President, Executive Director, Clinical Operations
of IDM.
B. The Company desires assurance of the association and services of the Executive in order
to retain the Executive’s experience, skills, abilities, background and knowledge, and is willing
to engage the Executive’s services on the terms and conditions set forth in this Agreement.
C. The Executive desires to be in the employ of the Company, and is willing to accept such
employment on the terms and conditions set forth in this Agreement.
Agreement
In consideration of the foregoing Recitals and the mutual promises and covenants herein
contained, and for other good and valuable consideration, the Parties, intending to be legally
bound, agree as follows:
1. Employment.
1.1 Term. The Company hereby employs the Executive, and the Executive
hereby accepts employment by the Company, upon the terms and conditions set forth in this
Agreement. The term of this Agreement shall begin on the Effective Date and shall continue
until it is terminated pursuant to Section 4 herein (the
“Term”).
1.2 Title. The Executive shall have the title of Vice President, Clinical
Operations and General Manager of U.S. Operations of the Company and shall serve in such
other capacity or capacities as such officer(s) of the Company to whom the Executive reports
may from time to time prescribe.
1.3 Duties. The Executive shall do and perform all services, acts or things
necessary or advisable to manage and conduct the business of the Company and which are
normally associated with the position of Vice President, Clinical Operations and General Manager
of U.S. Operations of the Company.
1.4 Policies and Practices. The employment relationship between the Parties
shall be governed by the policies and practices established by the Company and the Company’s
Board of Directors (the “Board”). The Executive shall acknowledge in writing that she has read
the Company’s Employee Handbook that will govern the terms and conditions of her
employment with the Company, along with this Agreement. In the event that the terms of this
Agreement differ from or are in conflict with the Company’s policies or practices or the
Company’s Employee Handbook, this Agreement shall control.
1.5 Location. Unless the Parties otherwise agree in writing, during the Term,
the Executive shall perform the services the Executive is required to perform pursuant to this
Agreement at the Company’s offices, located in Irvine, California; provided, however, that the
Company may from time to time require the Executive to travel temporarily to other locations
in connection with the Company’s business.
2. Loyal and Conscientious Performance; Noncompetition.
2.1 Loyalty. During the Executive’s employment by the Company, the
Executive shall devote the Executive’s full business energies, interest, abilities and
productive time to the proper and efficient performance of the Executive’s duties under this Agreement.
2.2 Covenant not to Compete. In exchange for the consideration provided
herein and any benefit the Executive receives as a result of the Exchange Agreement, the
Executive will not, during the Term and during any Good Reason or Without Cause Severance
(as these terms are hereinafter defined) Period specified by this Agreement, if severance is
paid, engage in competition with the Company and/or any of its controlled Affiliates (as defined
below), either directly or indirectly, in any manner or capacity, as adviser, principal,
agent, affiliate, promoter, partner, officer, director, employee, stockholder, owner, co-owner,
consultant, or member of any association or otherwise, in any phase of the business of developing,
manufacturing and marketing of cancer vaccines or related products or services, except with
the prior written consent of the Board. For purposes of this
Agreement, “Affiliate,” means,
with respect to any specific entity, any other entity that, directly or indirectly, through one or
more intermediaries, controls, is controlled by or is under common control with such specified
entity.
2.3 Agreement not to Participate in Company’s Competitors. During the
Term and during any Good Reason or Without Cause Severance Period specified by this
Agreement, if severance is paid, the Executive agrees not to acquire, assume or participate
in, directly or indirectly, any position, investment or interest known by the Executive to be
adverse or antagonistic to the Company, its business or prospects, financial or otherwise or in any
company, person or entity that is, directly or indirectly, in competition with the business of
the Company or any of its Affiliates. Ownership by the Executive, in professionally managed funds
over which the Executive does not have control or discretion in investment decisions, or as a
passive investment, of less than two percent (2%) of the outstanding shares of capital stock
of any corporation with one or more classes of its capital stock listed on a national securities
2.
exchange or publicly traded on the Nasdaq Stock Market or in the over-the-counter market (a
“Publicly Traded Company”) shall not constitute a breach of this Section 2.3.
3. Compensation of the Executive.
3.1 Base Salary. The Company shall pay the Executive a base salary at the
annualized rate of two hundred thirty thousand ($230,000) per year (“Base Salary”), less
payroll deductions and all required withholdings, payable in regular periodic payments in accordance
with the Company’s normal payroll practices. Such base salary shall be prorated for any
partial year of employment on the basis of a 365-day fiscal year.
3.2 Annual Bonus. The Executive shall be entitled to earn a bonus on an
annual basis, the payment of which shall be based on the satisfaction of annual performance
objectives established by the Board or the Compensation Committee of the Board in its sole
discretion (the “Annual Bonus”). The target amount for the Annual Bonus with respect to fiscal
year 2005 shall be equal to 25% of the Base Salary. The Board or Compensation Committee will
have the discretion to determine the target bonus levels in future years. The Annual Bonus
shall
be payable within 60 days following the last day of the Company’s fiscal year.
3.3 Changes to Compensation. The Executive’s compensation may be
changed from time to time by mutual agreement of the Executive and the Company.
3.4
Employment Taxes. All of the Executive’s compensation shall be subject
to customary withholding taxes and any other employment taxes as are commonly required to be
collected or withheld by the Company.
3.5 Benefits. The Executive shall, in accordance with Company policy and
the terms of the applicable plan documents, be eligible to participate in benefits under any
executive benefit plan or arrangement which may be in effect from time to time and made
available to the Company’s executive or key management employees.
3.6 Restricted Stock Grant. Pursuant to the terms of the Company’s 2000
Stock Plan, as amended (the “Plan”), the Company shall grant to the Executive the right to
receive a total of fifty thousand (50,000) shares of the common stock of the Company (the
“Common Stock”) which right shall vest as to 50,000 shares on the date forty-two months
following the Effective Date, provided that the Executive remains a full time employee of the
Company without break or interruption in service. Any shares subject to the restricted stock
grant that have vested will be issued to the Executive on the earlier of (a) the Executive’s
separation from service (as such term is used in Section 409A(a)(2)(A)(i)) of the Internal
Revenue Code of 1986, as amended (the “Code”)), provided that, if the Executive’s separation
occurs on a date during which executive officers of the Company are prohibited by Company
policy or applicable securities or exchange rules from trading the stock of the Company, the
vested shares shall not be issued until the next business day during which trading is not
prohibited; and (b) forty-eight (48) months from the Effective Date; provided that, if the
forty-eight month anniversary of the Effective Date occurs on a date during which executive officers
of the Company are prohibited by Company policy or applicable securities or exchange rules from
3.
trading the stock of the Company, the vested shares shall not be issued until the next
business day during which trading is not prohibited. Notwithstanding the foregoing, the issuance
of the vested shares shall be made in a manner that complies with the requirements of Code Section
409A, which may include, without limitation, deferring the issuance of such shares for six (6)
months after the Executive’s separation from service; provided, however, that nothing in this
sentence shall require the issuance of vested shares to the Executive earlier than they would
otherwise be issued under this Agreement.
3.6.1 Accelerated Vesting. Notwithstanding the foregoing vesting schedule, the vesting of
shares pursuant to the restricted stock grant shall be accelerated as follows, provided that on
each of the following events the Executive remains a full time employee of the Company without
break or interruption in service on the applicable vesting date: (i) upon the closing of a
financing which raises net additional capital for the Company of at least five million dollars
($5,000,000.00) within twelve (12) months after the Effective
Date (the “Initial Financing”) ten
thousand (10,000) shares shall immediately vest; (ii) upon the filing by the Company of a marketing
approval application with the Food and Drug Administration or the European Agency for the
Evaluation of Medicinal Products with respect to the Company’s Mepact product within eighteen (18)
months after the Effective Date, twenty-five thousand (25,000) shares shall immediately vest; (iii)
upon the closing of a second financing which raises net additional capital for the Company of at
least five million dollars ($5,000,000.00) within twenty-four (24) months after the Effective Date,
five thousand (5,000) shares shall immediately vest; and (iv) upon approval by the Food and Drug
Administration or the European Agency for the Evaluation of Medicinal Products of the marketing of
the Company’s Mepact product prior to the third anniversary of the Effective Date, ten thousand
(10,000) shares shall immediately vest. For purposes of the additional vesting provided in this
Section 3.6.1, the accelerated vesting, if any, shall be with respect to shares scheduled to vest
last in time.
3.7 Option Grant. Subject to approval by the Board, the Company shall
grant to the Executive on the Effective Date as soon as practicable following the Effective
Date
an Option (the “Option”) to purchase one hundred fifty thousand (150,000) shares of Common
Stock. The Option shall vest over a four-year period commencing on the date of grant, with 25%
of the shares subject to the Option vesting on the first anniversary of the date of grant, and
the
balance of the shares subject to the Option vesting ratably on a daily basis during the next
36
months thereafter, provided that the Executive remains a full time employee of the Company
without break or interruption in service as of the vesting dates. Except as provided in this
Agreement, the Option shall be granted pursuant to and be subject to the terms and conditions
of
the Plan.
3.8 Prior Stock Options. As to any outstanding options to purchase the
ordinary shares of IDM (the “IDM Ordinary Shares”) granted to the Executive prior to the
Effective Date for which the Executive receives substitute options under the Plan (the “Pre-
Exchange Options”) which have a per share exercise price that is equal to or greater than the
fair
market value of the Company Shares on the Effective Date (the
“UnderWater Options”), the
UnderWater Options shall be exercisable by the Executive until the later of (i) December 31,
2007, or (ii) three (3) months following the effective date of the Executive’s termination of
employment with the Company.
4
4. Termination.
4.1 Termination By the Company. The Executive’s employment with the
Company may be terminated under the following conditions:
4.1.1 Termination for Death or Disability. The Executive’s
employment with the Company shall terminate effective upon the date of the Executive’s death
or “Complete Disability” (as defined in Section 4.5.1 hereof), provided, however, that this
Section 4.1.1 shall in no way limit the Company’s obligations to provide such reasonable
accommodations to the Executive as may be required by law.
4.1.2 Termination by the Company For Cause. The Company may
terminate the Executive’s employment under this Agreement for “Cause” (as defined in
Section 4.5.3) by delivery of written notice to the Executive specifying the Cause or Causes
relied upon for such termination, provided that such notice is delivered within two (2) months
following the occurrence of the Company learning of any event or events constituting “Cause”.
Any notice of termination given pursuant to this Section 4.1.2 shall effect termination as of
the
date of the notice or such date as specified in the notice.
4.1.3 Termination by the Company Without Cause. The Company
may terminate the Executive’s employment under this Agreement at any time and for any reason,
or no reason. Such termination shall be effective on the date the Executive is so informed or
as
otherwise specified by the Company.
4.2 Termination By The Executive. The Executive may terminate her
employment with the Company at any time and for any reason or no reason, including, but not
limited, under the following conditions:
4.2.1 Good Reason. The Executive may terminate her employment
under this Agreement for “Good Reason” (as defined below in Section 4.5.2 hereof) by delivery
of written notice to the Company specifying the “Good Reason” relied upon by the Executive for
such termination, provided that such notice is delivered within two (2) months following the
occurrence of any event or events constituting Good Reason.
4.2.2 Without Good Reason. The Executive may terminate the
Executive’s employment hereunder for other than “Good Reason” upon sixty (60) days written
notice to the Company.
4.3 Termination by Mutual Agreement of the Parties. The Executive’s
employment pursuant to this Agreement may be terminated at any time upon a mutual agreement
in writing of the Parties. Any such termination of employment shall have the consequences
specified in such agreement.
4.4 Compensation Upon Termination.
4.4.1 Death or Complete Disability. If the Executive’s employment shall be terminated by
death or Complete Disability as provided in Section 4.1.1 hereof, i) the
5.
Company shall pay to the Executive, and/or the Executive’s heirs, the Executive’s Base Salary and
accrued and unused vacation benefits earned through the date of termination at the rate in effect
at the time of termination, less standard deductions and withholdings, ii) any shares subject to
the restricted stock grant that have vested as of the Executive’s death or Complete Disability as
provided under Section 3.6 hereof shall be delivered to the Executive’s estate as soon as
practicable, iii) the Executive shall fully vest in her Pre-Exchange Options and the Executive’s
outstanding stock options shall expire in accordance with the terms of the applicable award
agreements (as amended by Section 3.8 hereof), and iv) the Company shall thereafter have no further
obligations to the Executive and/or the Executive’s heirs under this Agreement, except to the
extent that the Executive is eligible for benefits pursuant to any insurance policies maintained by
the Company in connection with her death or Complete Disability, and except as otherwise provided
by law.
4.4.2 For Cause. If the Executive’s employment shall be terminated by
the Company for Cause, then i) the Company shall pay the Executive’s Base Salary and accrued
and unused vacation benefits earned through the date of termination at the rate in effect at
the
time of termination, less standard deductions and withholdings, ii) the Executive’s right to
receive unvested shares as provided in Section 3.6 hereof immediately shall expire, iii) the
Executive’s outstanding stock options shall expire in accordance with the terms of the
applicable
award agreements (as amended by Section 3.8 hereof), and iv) the Company shall thereafter have
no further obligations to the Executive under this Agreement, except as provided by law.
4.4.3 Resignation Without Good Reason. If the Executive’s
employment hereunder shall be terminated by the Executive without Good Reason, then i) the
Company shall pay the Executive’s Base Salary and accrued and unused vacation benefits earned
through the date of termination at the rate in effect at the time of termination, less
standard
deductions and withholdings, ii) the Executive’s right to receive unvested shares as provided
in
Section 3.6 hereof immediately shall expire, iii) the Executive shall fully vest in her Pre-
Exchange Options and the Executive’s outstanding stock options shall expire in accordance with
the terms of the applicable award agreements (as amended by Section 3.8 hereof), and iv) the
Company shall thereafter have no further obligations to the Executive under this Agreement,
except as provided by law and with respect to the delivery of vested shares under Section 3.6
hereof.
4.4.4 With Good Reason. If the Executive resigns with Good Reason,
then the Company shall pay the Executive’s Base Salary and accrued and unused vacation earned
through the date of termination, at the rate in effect at the time of termination subject to
standard
deductions and withholdings. In addition, subject to the limitations stated in Section 4.4.6
herein
and upon the Executive’s furnishing to the Company, and not revoking, an effective waiver and
release of claims (a form of which is attached hereto as
Exhibit A) (the “Release”), the
Executive shall be entitled to:
(i) continued payment of the Executive’s annual Base Salary in effect at the time of
termination for a period beginning upon the Effective Date specified in Exhibit A and continuing
until the earlier of i) twelve (12) months thereafter or, ii) the date on which the Executive
begins full-time employment with or in an entity or endeavor other than the Company
6.
(the “Good Reason Severance Period”), less standard deductions and withholdings, paid pursuant to
the Company’s standard payroll practices; and
(ii) in the event the Executive elects continued coverage under COBRA in accordance with
applicable law, the Company will reimburse the Executive for the same portion of Executive’s COBRA
health insurance premium as the percentage of health insurance premiums that it paid during the
Executive’s employment during the Good Reason Severance Period; and
(iii) the accelerated and full vesting of all Pre-Exchange Options such that the Pre-Exchange
Options shall be fully vested and exercisable as of the Effective Date specified in Exhibit A (the
Pre-Exchange Option will otherwise be governed by the terms of the applicable stock option
agreement and plan, as amended by Section 3.8 hereof); and
(iv) with respect to any unvested portion of the restricted stock grant specified in Section
3.6 above and the Option specified in Section 3.7 above (collectively, the “Awards”),the
accelerated vesting of the Awards such that the Awards shall be fully vested and exercisable as of
the effective date of the Release.
4.4.5 Without Cause. If the Company terminates the Executive’s employment without Cause, the
Company shall pay the Executive’s Base Salary and accrued and unused vacation earned through the
date of termination, at the rate in effect at the time of termination subject to standard
deductions and withholdings. In addition, subject to the limitations stated in Section 4.4.6 herein
and upon the Executive’s furnishing to the Company, and not revoking, an effective waiver and
release of claims (a form of which is attached hereto as Exhibit A), the Executive shall be
entitled to:
(i) continuation of the Executive’s annual Base Salary in effect at the time of termination
for a period beginning upon the Effective Date of the Release and continuing for twelve (12)
months thereafter (the “Without Cause Severance Period”), less standard deductions and
withholdings, paid pursuant to the Company’s standard payroll practices, or, at the Executive’s
option, payment in a lump sum of the Executive’s annual Base Salary, less standard deductions and
withholdings, within five (5) business days following the Effective Date of the Release; and
(ii) in the event the Executive elects continued coverage under COBRA in accordance with
applicable law, the Company will reimburse the Executive for the same portion of Executive’s COBRA
health insurance premium as the percentage of health insurance premiums that it paid during the
Executive’s employment for up to the maximum period permitted under COBRA or Cal-COBRA, or the
Without Cause Severance Period, whichever is shorter, or, if earlier, until the Executive begins
full-time employment with or in an entity or endeavor other than the Company;
(iii) the accelerated and full vesting of all Pre-Exchange Options such that the Pre-Exchange
Options shall be fully vested and exercisable as of the Effective Date of
7.
the Release (the Pre-Exchange Option will otherwise be governed by the terms of the applicable
stock option agreement and plan, as amended by Section 3.8 hereof); and
(iv) with respect to any unvested portion of the Awards, the accelerated vesting of the
Awards such that the Awards shall be fully vested and exercisable as of the Effective Date of the
Release.
4.4.6 Covenant Not to Compete. Notwithstanding any provisions in this Agreement to the
contrary, the Company’s obligations and the Executive’s rights pursuant to Sections 4.4.3, 4.4.4
and 4.4.5 shall cease and be rendered a nullity immediately should the Executive violate any
provision of Section 2.2 herein, or should the Executive violate the terms and conditions of the
Executive’s Proprietary Information and Inventions Agreement.
4.5 Definitions. For purposes of this Agreement, the following terms shall have the
following meanings:
4.5.1 Complete Disability. “Complete Disability” shall mean the
inability of the Executive to perform the Executive’s duties under this Agreement, whether
with
or without reasonable accommodation, because the Executive has become permanently disabled
within the meaning of any policy of disability income insurance covering employees of the
Company then in force. In the event the Company has no policy of disability income insurance
covering employees of the Company in force when the Executive becomes disabled, the term
“Complete Disability” shall mean the inability of the Executive to perform the Executive’s
duties under this Agreement, whether with or without reasonable accommodation, by reason of
any incapacity, physical or mental, which the Board, based upon medical advice or an opinion
provided by a licensed physician acceptable to the Board, determines to have incapacitated the
Executive from satisfactorily performing all of the Executive’s usual services for the
Company,
with or without reasonable accommodation, for a period of at least one hundred twenty (120)
days during any twelve (12) month period (whether or not consecutive). Based upon such
medical advice or opinion, the determination of the Board shall be final and binding and the
date
such determination is made shall be the date of such Complete Disability for purposes of this
Agreement.
4.5.2 Good Reason. “Good Reason” for the Executive to terminate the
Executive’s employment hereunder shall mean the occurrence of any of the following events:
(i) without the Executive’s consent, a significant reduction in the Executive’s duties,
position, authority, or responsibilities relative to the duties, position, authority, or
responsibilities in effect immediately prior to such reduction;
(ii) without the Executive’s consent, the relocation of the Executive’s principal place of
business to a point more than thirty-five (35) miles from its location in Irvine, California;
(iii) a reduction by the Company of the Executive’s base salary as initially set forth herein
or as the same may be increased from time to time, provided that if such
8.
reduction occurs in connection with a Company-wide decrease in Executive salaries and the percent
decrease in the Executive’s base salary does not exceed the percent decrease in base salary of any
other executive of the Company such reduction will not constitute Good Reason to terminate
Executive’s employment for purposes of this Agreement; or
(iv) without the Executive’s consent, a failure by the Company to obtain from any successor,
before the succession takes place, an agreement to assume the obligations and perform all of the
terms and conditions of this Agreement.
4.5.3 Cause. “Cause” for the Company to terminate Executive’s employment hereunder shall mean
the occurrence of any of the following events, as determined reasonably and in good faith by the
Board or a committee designated by the Board:
(i) the Executive’s willful and habitual failure to attend to her duties as assigned by the
Board or officers of the Company to whom she reports;
(ii) misconduct by the Executive which materially and adversely reflects upon her
ability to perform her duties for the Company;
(iii) the Executive’s conviction of, or plea of guilty or nolo contendere to, a felony that
is likely to inflict or has inflicted material injury on the business of the Company;
(iv) the Executive’s engaging or in any manner participating in any activity which violates
any provisions of Section 2 hereof or the Executive’s Proprietary Information and Inventions
Agreement with the Company; or
(v) the Executive’s commission of any fraud against the Company, its controlled Affiliates,
employees, agents or customers or use or intentional appropriation for her personal use or benefit
of any funds or properties of the Company not authorized by the Board to be so used or
appropriated.
4.6 Survival of Certain Sections. Sections 2.2, 4.4.3, 4.4.4, 4.4.5, and 4.4.6,
and 16 of this Agreement will survive the termination of this Agreement.
4.7 Parachute Payment. If any payment or benefit the Executive would
receive pursuant to this Agreement, any other agreement or arrangement or otherwise
(“Payment”) would (i) constitute a “parachute payment” within the meaning of Code Section
280G, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of
the
Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The
“Reduced Amount” shall be either (x) the largest portion of the Payment that would result in
no
portion of the Payment being subject to the Excise Tax or (y) the largest portion of the
Payment,
which such amount, after taking into account all applicable federal, state and local
employment
taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal
rate),
results in the Executive’s receipt, on an after-tax basis, of the greater amount of the
Payment
notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a
reduction in payments or benefits constituting “parachute payments” is necessary so that the
9.
Payment equals the Reduced Amount, reduction shall occur in the following order unless the
Executive elects in writing a different order (provided, however, that such election shall be
subject to Company approval if made on or after the effective date of the event that triggers the
Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards;
reduction of employee benefits. In the event that acceleration of vesting of stock award
compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse
order of the date of grant of the Executive’s stock awards unless the Executive elects in writing
a different order for cancellation.
An accounting firm agreed upon by the Company and the Executive shall perform the foregoing
calculations. The Company shall bear all expenses with respect to the determinations by such
accounting firm required to be made hereunder.
The accounting firm engaged to make the determinations hereunder shall provide its
calculations, together with detailed supporting documentation, to the Executive and the Company
within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is
triggered (if requested at that time by the Executive or the Company) or such other time as
requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is
payable with respect to a Payment, either before or after the application of the Reduced Amount,
it shall furnish the Executive and the Company with an opinion reasonably acceptable to the
Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith
determinations of the accounting firm made hereunder shall be final, binding and conclusive upon
the Executive and the Company.
5. Confidential And Proprietary Information; Nonsolicitation.
As a condition of employment the Executive agrees to execute and abide by the Proprietary
Information and Inventions Agreement attached hereto as Exhibit B.
6. Assignment and Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Executive and the
Executive’s heirs, executors, personal representatives, assigns, administrators and legal
representatives. Because of the unique and personal nature of the Executive’s duties under this
Agreement, neither this Agreement nor any rights or obligations under this Agreement shall be
assignable by the Executive. This Agreement shall be binding upon and inure to the benefit of the
Company and its successors, assigns and legal representatives. Any such successor of the Company
will be deemed substituted for the Company under the terms of this Agreement for all purposes. For
this purpose, “successor” means any person, firm, corporation or other business entity which at any
time, whether by purchase, merger or otherwise, directly or indirectly acquires all or
substantially all of the assets or business of the Company.
7. Notices.
All notices or demands of any kind required or permitted to be given by the Company or the
Executive under this Agreement shall be given in writing and shall be personally
10.
delivered (and receipted for) or faxed during normal business hours or mailed by certified
mail, return receipt requested, postage prepaid, addressed as follows:
If to the Company:
Epimmune Inc.
0000 Xxxxx Xxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
(000) 000-0000
(000) 000-0000 fax
Attention: Xxxx-Loup Romet-Lemonne
Epimmune Inc.
0000 Xxxxx Xxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
(000) 000-0000
(000) 000-0000 fax
Attention: Xxxx-Loup Romet-Lemonne
If to the Executive:
at the Executive’s last known residential address on file with the Company.
Any such written notice shall be deemed given on the earlier of the date on which such notice is
personally delivered or three (3) days after its deposit in the United States mail as specified
above. Either Party may change its address for notices by giving notice to the other Party in the
manner specified in this section.
8. Choice of Law.
This Agreement is made in San Diego, California. This Agreement shall be construed and
interpreted in accordance with the internal laws of the State of California.
9. Integration.
This Agreement, including Exhibits A and B, the Executive’s stock option agreements, and the
Plan, as well as the Employee Handbook contains the complete, final and exclusive agreement of the
Parties relating to the terms and conditions of the Executive’s employment and the termination of
the Executive’s employment, and supersedes all prior and contemporaneous oral and written
employment agreements or arrangements between the Parties. To the extent this Agreement conflicts
with the terms of the Employee Handbook, this Agreement controls.
10. Amendment.
This Agreement cannot be amended or modified except by a written agreement signed by the
Executive and the Company.
11. Waiver.
No term, covenant or condition of this Agreement or any breach thereof shall be deemed
waived, except with the written consent of the Party against whom the wavier is claimed, and any
waiver or any such term, covenant, condition or breach shall not be deemed to be a waiver of any
preceding or succeeding breach of the same or any other term, covenant, condition or breach.
11.
12. Severability.
The finding by a court of competent jurisdiction of the unenforceability, invalidity or
illegality of any provision of this Agreement shall not render any other provision of this
Agreement unenforceable, invalid or illegal. Such court shall have the authority to modify or
replace the invalid or unenforceable term or provision with a valid and enforceable term or
provision, which most accurately represents the Parties’ intention with respect to the invalid or
unenforceable term, or provision.
13. Interpretation; Construction.
The headings set forth in this Agreement are for convenience of reference only and shall not
be used in interpreting this Agreement. This Agreement has been drafted by legal counsel
representing the Company, but the Executive has been encouraged to consult with, and has consulted
with, the Executive’s own independent counsel and tax advisors with respect to the terms of this
Agreement. The Parties acknowledge that each Party and its counsel has reviewed and revised, or
had an opportunity to review and revise, this Agreement, and the normal rule of construction to
the effect that any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Agreement.
14. Representations and Warranties.
The Executive represents and warrants that the Executive is not restricted or prohibited,
contractually or otherwise, from entering into and performing each of the terms and covenants
contained in this Agreement, and that the Executive’s execution and performance of this Agreement
will not violate or breach any other agreements between the Executive and any other person or
entity.
15. Counterparts.
This Agreement may be executed in two counterparts, each of which shall be deemed an
original, all of which together shall contribute one and the same instrument.
16. Arbitration.
To ensure the rapid and economical resolution of disputes that may arise in connection with
the Executive’s employment with the Company, the Executive and the Company agree that any and all
disputes, claims, or causes of action, in law or equity, arising from or relating to Executive’s
employment, or the termination of that employment, will be resolved, to the fullest extent
permitted by law, by final, binding and confidential arbitration in San Diego, California conducted
by the Judicial Arbitration and Mediation Services/Endispute, Inc. (“JAMS”), or its successors,
under the then current rules of JAMS for employment disputes; provided that the arbitrator shall:
(a) have the authority to compel adequate discovery for the resolution of the dispute and to award
such relief as would otherwise be permitted by law; and (b) issue a written arbitration decision
including the arbitrator’s essential findings and conclusions and a statement of the award.
Accordingly, the Executive and the Company hereby waive any right to a jury trial. Both the
Executive and the Company shall be entitled to all rights and remedies that either the Executive or
the Company would be entitled to pursue in a court of
12.
law. The Company shall pay all fees in excess of those which would be required for filing a
dispute if the dispute was decided in a court of law. Nothing in this Agreement is intended to
prevent either the Executive or the Company from obtaining injunctive relief in court to prevent
irreparable harm pending the conclusion of any such arbitration. Notwithstanding the foregoing,
the Executive and the Company each have the right to resolve any issue or dispute involving
confidential, proprietary or trade secret information, or intellectual property rights, by Court
action instead of arbitration.
17. Trade Secrets Of Others.
It is the understanding of both the Company and the Executive that the Executive shall
not divulge to the Company and/or its subsidiaries any confidential information or trade secrets
belonging to others, including the Executive’s former employers, nor shall the Company and/or its
Affiliates seek to elicit from the Executive any such information. Consistent with the foregoing,
the Executive shall not provide to the Company and/or its Affiliates, and the Company and/or its
Affiliates shall not request, any documents or copies of documents containing such information.
18. Advertising Waiver.
For so long as she remains employed, the Executive agrees to permit the Company, and persons
or other organizations authorized by the Company to use, publish and distribute advertising or
sales promotional literature concerning the products and/or services of the Company, or the
machinery and equipment used in the provision thereof, in which the Executive’s name and/or
pictures of the Executive taken in the course of the Executive’s provision of services to the
Company appear. The Executive hereby waives and releases any claim or right the Executive may
otherwise have arising out of such use, publication or distribution.
13.
In Witness Whereof, the Parties have executed this Agreement as of the date first
above written.
| Epimmune Inc. | ||||
By: |
/s/ Xxxxxx X. De Vaere | |||
Title: |
Chief Financial Officer | |||
Dated: |
June 6, 2005 | |||
| Executive: | ||||
| /s/ Xxxxxx Xxxxx | ||||
| Xxxxxx Xxxxx | ||||
| Dated: July 21, 2005 | ||||
14.
EXHIBIT A
RELEASE AND WAIVER OF CLAIMS
In consideration of the payments and other benefits set forth in the Employment Agreement
dated June 6, 2005 (the “Employment Agreement”), to which this form is attached, I, Xxxxxx Xxxxx,
hereby furnish Epimmune Inc., a Delaware Corporation (the
“Company”), with the following release
and waiver (“Release and Waiver”).
In exchange for the consideration provided to me by the Employment Agreement that I am not
otherwise entitled to receive, I hereby generally and completely release the Company and its
directors, officers, employees, shareholders, partners, agents, attorneys, predecessors,
successors, parent and subsidiary entities, insurers, Affiliates, and assigns from any and all
claims, liabilities and obligations, both known and unknown, that arise out of or are in any way
related to events, acts, conduct, or omissions occurring prior to my signing this Release and
Waiver. This general release includes, but is not limited to: (1) all claims arising out of or in
any way related to my employment with the Company or the termination of that employment; (2) all
claims related to my compensation or benefits from the Company, including salary, bonuses,
commissions, vacation pay, expense reimbursements, severance pay, fringe benefits, stock, stock
options, or any other ownership interests in the Company; (3) all claims for breach of contract,
wrongful termination, and breach of the implied covenant of good faith and fair dealing; (4) all
tort claims, including claims for fraud, defamation, emotional distress, and discharge in
violation of public policy; and (5) all federal, state, and local statutory claims, including
claims for discrimination, harassment, retaliation, attorneys’ fees, or other claims arising under
the federal Civil Rights Act of 1964 (as amended), the federal Americans with Disabilities Act of
1990, the federal Age Discrimination in Employment Act of 1967 (as
amended) (“ADEA”), and the
California Fair Employment and Housing Act (as amended).
I also acknowledge that I have read and understand Section 1542 of the California Civil Code
which reads as follows: “A general release does not extend to claims which the creditor does not
know or suspect to exist in her favor at the time of executing the
release, which if known by him must have materially affected her settlement with the debtor.” I hereby expressly waive and
relinquish all rights and benefits under that section and any law of any jurisdiction of similar
effect with respect to any claims I may have against the Company.
I acknowledge that, among other rights, I am waiving and releasing any rights I may have
under ADEA, that this Release and Waiver is knowing and voluntary, and that the consideration
given for this Release and Waiver is in addition to anything of value to which I was already
entitled as an executive of the Company. If I am 40 years of age or older upon execution of this
Release and Waiver, I further acknowledge that I have been advised, as required by the Older
Workers Benefit Protection Act, that: (a) the release and waiver granted herein does not relate to
claims under the ADEA which may arise after this Release and Waiver is executed; (b) I should
consult with an attorney prior to executing this Release and Waiver; and (c) I have twenty-one
(21) days from the date of termination of my employment with the Company in which to consider this
Release and Waiver (although I may choose voluntarily to execute this Release and Waiver earlier);
(d) I have seven (7) days following the execution of this Release and Waiver to
revoke my consent to this Release and Waiver; and (e) this Release and Waiver shall not be
effective until the seven (7) day revocation period has expired, which shall be the eighth day
following my execution of this Release and Waiver (the “Effective Date”).
I acknowledge my continuing obligations under my Proprietary Information and Inventions
Agreement, a copy of which is attached to the Employment Agreement as Exhibit B. Pursuant to the
Proprietary Information and Inventions Agreement I understand that among other things, I must not
use or disclose any confidential or proprietary information of the Company and I must immediately
return all Company property and documents (including all embodiments of proprietary information)
and all copies thereof in my possession or control. I understand and agree that my right to the
severance pay and other benefits I am receiving in exchange for my agreement to the terms of this
Release and Waiver is contingent upon my continued compliance with my Proprietary Information &
Inventions Agreement.
This Release and Waiver, including Exhibit B to the Employment Agreement, constitutes the
complete, final and exclusive embodiment of the entire agreement between the Company and me with
regard to the subject matter hereof. I am not relying on any promise or representation by the
Company that is not expressly stated herein. This Release and Waiver may only be modified by a
writing signed by both me and a duly authorized officer of the Company.
Date:
|
By: | |||||||||
| Xxxxxx Xxxxx |
2
