1
Exhibit 10.15
EXECUTIVE SERVICES AGREEMENT
THIS EXECUTIVE SERVICES AGREEMENT (the "Agreement") is made and
entered into as of July 1, 1997, by and between ZymeTx, Inc., a Delaware
corporation (the "Company"), and Xxxxx X. Xxxxxxxxxx ("Xxxxxxxxxx").
W I T N E S S E T H
WHEREAS, Xxxxxxxxxx is currently serving as President and Chief
Executive Officer of the Company; and
WHEREAS, on July 24, 1996, the Company and Oklahoma Medical Research
Foundation ("OMRF") entered into that certain Employee Services Agreement (the
"OMRF Agreement"), pursuant to which, among other things, OMRF has leased the
services of Xxxxxxxxxx to the Company;
WHEREAS, the Company and Xxxxxxxxxx desire to enter into this
Agreement in connection with Xxxxxxxxxx'x continued service to the Company;
NOW THEREFORE, in consideration of the mutual promises and agreements
herein contained, and other good and valuable consideration, the adequacy of
which is hereby acknowledged, the parties hereby agree as follows:
1. ENGAGEMENT; DUTIES AND ACCEPTANCE.
1.1. Engagement by the Company. During the Term (as hereinafter
defined) and so long as Xxxxxxxxxx is employed by OMRF (the "OMRF Term"), the
Company agrees to lease the services of Xxxxxxxxxx from OMRF and Xxxxxxxxxx
shall serve in such executive position with the Company as may be determined by
the Company's Board of Directors. Following the expiration of the OMRF Term,
the Company hereby agrees to employ Xxxxxxxxxx during the Term in such an
executive position as may be determined by the Board of Directors of the
Company.
1.2 Duties. As an executive of the Company, Xxxxxxxxxx shall
render such duties as previously rendered and as he shall be directed to render
and perform by the Board of Directors of the Company.
1.3. Acceptance of Engagement by Xxxxxxxxxx. Xxxxxxxxxx hereby
accepts such engagement and shall render the services described above, whether
as OMRF's employee who is leased to the Company or as an employee of the
Company itself. Xxxxxxxxxx agrees to devote such time and attention necessary
to the performance of said services for the Company.
1.4. Continuation or Termination of Existing Contracts. On June
30, 1996, the Company, OMRF and Xxxxxxxxxx entered into that certain Invention
Disclosure and Assignment Agreement, a copy of which is attached hereto as
Annex "A" (the "Invention Disclosure Agreement") and the terms of which are
incorporated herein. In addition, on June 30, 1996, the Company and Xxxxxxxxxx
entered into that certain Non-Competition Agreement, a copy of which is
attached hereto as Annex "B" (the "Non-Competition Agreement") and the terms of
which are incorporated herein by reference. Further, on January 3, 1997, the
Company and Xxxxxxxxxx entered into that certain Incentive Stock Option
Agreement, a copy of which is attached hereto as Annex "C" (the "Stock Option
Agreement") and the terms of which are incorporated herein by reference. The
terms of such agreements shall continue in effect and are hereby ratified and
affirmed by the parties to this Agreement; provided, however, Xxxxxxxxxx and
the Company agree that the
2
term of the Non-Competition Agreement shall expire on the fifth anniversary of
the Term of this Agreement and Xxxxxxxxxx'x obligations under the Invention
Disclosure Agreement shall continue after the OMRF Term so long as Xxxxxxxxxx
is employed by the Company, whether or not the Term of this Agreement has
expired. Xxxxxxxxxx agrees that all other agreements and contracts, whether
written or oral, relating to the current engagement of Xxxxxxxxxx by the
Company will be terminated as of the commencement of the Term of this
Agreement.
2. TERM OF SERVICE. The term of Xxxxxxxxxx'x service under this
Agreement (the "Term") shall commence as of the date of this Agreement (the
"Commencement Date"), and shall continue through and expire on the second
anniversary of the Commencement Date (the "Termination Date") unless earlier
terminated as herein provided.
3. PARTICIPATION IN EMPLOYEE BENEFIT PLANS. During the Term,
Xxxxxxxxxx shall be permitted to participate in any group life, hospitalization
or disability insurance plan, health program, pension plan, similar benefit
plan or other so-called "fringe benefits" of the Company, which may be
available to employees of the Company generally on the same terms as such
employees, and shall continue to participate in all such plans described in
Schedule 3 attached hereto in which Xxxxxxxxxx presently participates;
provided, however, during the OMRF Term, the Company shall not be required to
provide benefits which duplicate those provided by OMRF. The Company and
Xxxxxxxxxx acknowledge the Company's grant of stock options under the Stock
Option Agreement.
4. COMPENSATION.
4.1. Annual Salary. In consideration of the observance by
Xxxxxxxxxx of the terms of this Agreement and the performance of his duties as
set forth herein, the Company shall pay to Xxxxxxxxxx, or reimburse OMRF during
the OMRF Term for, the sum of One Hundred Forty-five Thousand Dollars
($145,000) per year (the "Annual Salary") during the Term of this Agreement,
which payments after the OMRF Term shall be payable in accordance with the
payroll policies of the Company as such are from time to time in effect.
During the OMRF Term the Company shall make Annual Salary reimbursement in
accordance with the OMRF Agreement, and the Company shall have no obligation to
make direct payments of Annual Salary to Xxxxxxxxxx provided that reimbursement
of Annual Salary is made to OMRF. The Annual Salary shall be reviewed by the
Compensation Committee (the "Committee") on each anniversary of the
Commencement Date of this Agreement; provided, however, that in no event will
such review result in a decrease in the Annual Salary.
4.2. Bonus. At the time of each annual review, the
Committee shall consider the appropriateness for the payment of a bonus to
Xxxxxxxxxx equal to an amount not to exceed 50% of the previous year's Annual
Salary. At the time of each annual review, Xxxxxxxxxx and the Committee shall
mutually agree upon performance criteria and objectives against which actual
performance by Xxxxxxxxxx may be measured for purposes of determining a
possible bonus for the next fiscal year.
5. VACATIONS. Xxxxxxxxxx shall be entitled each year to a
vacation of four (4) weeks during which time his compensation shall be paid in
full. Unused vacation shall be carried over to future years in accordance with
standard Company vacation policy.
-2-
3
6. TERMINATION.
6.1. Termination upon Death. If Xxxxxxxxxx dies during
the Term, this Agreement shall terminate, and if death occurs after the OMRF
Term, Xxxxxxxxxx'x legal representatives shall be entitled to receive the
Annual Salary, accrued pro rata to the date of Xxxxxxxxxx'x death. If death
occurs during the OMRF Term, Xxxxxxxxxx'x legal representatives shall be
entitled to receive compensation in accordance with standard OMRF policy.
6.2. Termination for Cause. The Company has the right, at
any time during the Term, subject to all of the provisions hereof, exercisable
by serving notice, effective in accordance with its terms, to terminate
Xxxxxxxxxx'x service under this Agreement (whether or not services are leased
by OMRF) and to discharge Xxxxxxxxxx for "Cause" (as hereinafter defined). If
such right is exercised after the OMRF Term, the Company's obligation to
Xxxxxxxxxx shall be limited to the payment of unpaid Annual Salary accrued up
to the effective date specified in the Company's notice of termination; if
exercised during the OMRF Term, the Company's obligation shall be limited to
reimbursement to OMRF for such amount. As used in this Section 6.2, the term
"Cause" shall mean the occurrence of one or more of the following events: (i)
Xxxxxxxxxx'x willful and repeated failure or refusal to comply in any material
respect with the reasonable and lawful policies, standards or regulations from
time to time established by the Company, or to perform his duties in accordance
with this Agreement after notice to Xxxxxxxxxx of such failure; or (ii)
Xxxxxxxxxx engages in criminal conduct or engages in conduct with respect to
the Company that is dishonest, fraudulent or materially detrimental to the
reputation, character or standing of the Company.
6.3 Termination Without Cause. The Company may terminate
Xxxxxxxxxx'x service without Cause upon giving thirty (30) days written notice
of termination. In such event, (a) the Company shall, for each of the twelve
(12) months thereafter, pay to Xxxxxxxxxx his monthly payment of Annual Salary
in effect previous to such termination, (b) the Company shall pay Xxxxxxxxxx an
amount in cash equal to 50% of the previous bonus paid to him, and (c) any
stock options which were unvested but would vest within the twelve (12) months
following such notice of termination shall immediately vest and become
exercisable under the Stock Option Agreement.
6.4. Suspension upon Disability. If during the Term
Xxxxxxxxxx becomes physically or mentally disabled, whether totally or
partially, as evidenced by the written statement of a competent physician
licensed to practice medicine in the United States, so that Xxxxxxxxxx is
unable substantially to perform his services hereunder for a period of four (4)
consecutive months, the Company may at any time after the last day of the four
(4) consecutive months of disability, by written notice to Xxxxxxxxxx, suspend
the Term of Xxxxxxxxxx'x services hereunder and discontinue payments, or
reimbursements to OMRF, of the Annual Salary. If at any time Xxxxxxxxxx shall
no longer be disabled, as evidenced by the written statement of a competent
physician licensed to practice medicine in the United States, the Company shall
fully reinstate the engagement of Xxxxxxxxxx pursuant to this Agreement and
shall commence payment, or reimbursement to OMRF, of the Annual Salary and all
of the terms of this Agreement shall resume in full force for the balance of
the Term. Nothing in this Section 6.4 shall be deemed to extend the Term.
-3-
4
7. INSURANCE. The Company may, from time to time, apply for and
take out, in its own name and at its own expense, naming itself or others as
the designated beneficiary (which it may change from time to time), policies
for health, accident, disability or other insurance upon Xxxxxxxxxx in any
amount or amounts that it may deem necessary or appropriate to protect its
interest. In addition, the Company shall maintain a separate policy or benefits
under the same policy of the Company with Xx. Xxxxxxxxxx'x estate named as a
beneficiary for One Million Dollars ($1,000,000) of coverage. Xxxxxxxxxx agrees
to aid the Company in procuring such insurance by submitting to medical
examinations and by filling out, executing and delivering such applications and
other instruments in writing as may be reasonably be required by an insurance
company or companies to which any application or applications for insurance may
be made by or for the Company.
8. OTHER PROVISIONS.
8.1. Notices. Any notice or other communication required
or permitted hereunder shall be in writing and shall be delivered personally or
sent by certified, registered or express mail, postage prepaid. Any such notice
shall be deemed given when so delivered personally or, if mailed, the date of
receipt, as follows:
(i) If to the Company, to:
---------------------
ZymeTx, Inc.
000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
(ii) If to Xxxxxxxxxx, to:
--------------------
Xxxxx X. Xxxxxxxxxx
0000 X.X. 00xx Xx.
Xxxxxx, Xxxxxxxx 00000
Any party may change its address for notice hereunder by
notice to the other party hereto.
8.2. Entire Agreement. This Agreement and the Annexes
hereto contain the entire agreement between the parties with respect to the
subject matter hereof, and supersedes all prior agreements, written or oral,
with respect thereto.
8.3. Waivers and Amendments. This Agreement may be
amended, modified, superseded, canceled, renewed or extended, and the terms and
conditions hereof may be waived, only by a written instrument signed by the
parties or, in the case of a waiver, by the party waiving compliance. No delay
on the part of any party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any waiver on the part of any
party of any right, power or privilege hereunder, nor any single or partial
exercise of any right, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder.
-4-
5
8.4. Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Oklahoma applicable to
agreements made and to be performed entirely within such state.
8.5. Assignment. Xxxxxxxxxx may not delegate the
performance of any of his duties hereunder. Neither party hereto may assign
any rights hereunder without the written consent of the other party hereto.
8.6. Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
8.7. Headings. The headings in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
COMPANY: ZYMETX, INC.
By /s/ G. Xxxx Xxxxxx
--------------------------
G. Xxxx Xxxxxx,
Controller and Treasurer
XXXXXXXXXX: /s/ Xxxxx X. Xxxxxxxxxx
--------------------------
Xxxxx X. Xxxxxxxxxx
-5-
