Exhibit 10.11
EMPLOYMENT AGREEMENT
This Agreement is entered into this 18th day of March, 2002 by and
between MYMETICS CORPORATION, a Delaware corporation (hereinafter referred to as
the "Company"), and ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (hereinafter referred to as "Executive")
under the following terms and conditions:
RECITALS:
WHEREAS, the Company and Executive desire to set forth the terms and
conditions on which (i) the Company shall employ Executive, (ii) Executive shall
render services to the Company, and (iii) the Company shall compensate Executive
for such services; and
WHEREAS, in connection with the employment of Executive by the Company,
the Company desires to restrict Executive's rights to compete with the business
of the Company;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements hereinafter set forth and intending to be legally bound hereby, the
parties hereto agree as follows:
AGREEMENT
1. EMPLOYMENT.
The Company hereby employs Executive and Executive hereby accepts
employment with the Company upon the terms and conditions hereinafter set forth.
2. TERM.
2.1 The initial term of this Agreement (the "Initial Term")
shall be for a one (1) year period commencing on the Effective Date (as defined
in Subsection 2.3 below) of this Agreement, subject, however, to termination as
provided herein in Sections 6 and 7 below.
2.2 Each year, prior to the anniversary date, the Company and
Executive shall meet to determine any additional compensation, if any, for the
remaining contract term.
2.3 The effective date of this Agreement shall be February
11, 2002 (the "Effective Date").
3. COMPENSATION.
3.1 For all services rendered by Executive under this
Agreement, the Company shall pay or cause one or more of its subsidiaries to pay
Executive during the term hereof a salary at the rate of One Hundred Seventy
Thousand Dollars ($170,000) per year. The Company shall pay such compensation to
Executive monthly in accordance with its standard practice for payment of
compensation to its employees.
3.2 Executive shall be entitled to periodic cash bonuses in
addition to stock bonuses in accordance with the Company's stock option and
incentive plans now in effect or hereafter adopted, any other incentive bonus
plans or other forms of compensation, at the discretion of the Company's Board
of Directors, dependent upon Employee's performance.
3.3 Executive shall be entitled to normal benefits for all
Company employees, plus additional benefits which may be added as the benefits
plan is developed.
3.4 All compensation shall be subject to customary withholding
tax and other employment taxes as are required with respect to compensation paid
by a corporation to an employee.
4. DUTIES AND RESPONSIBILITIES.
4.1 Executive shall, during the Term of this Agreement unless
otherwise agreed by management, devote his full attention and expend his best
efforts, energies,
and skills on a full-time basis, to the business of the Company and any
corporation controlled by the Company (each, a "Subsidiary"). The Company
acknowledges that Executive may from time to time be engaged in other business
activities separate from and outside the scope of the business of the Company.
The Company agrees that the devotion of reasonable amounts of time to such other
business activities will not violate the terms of this Agreement on the
conditions that (i) such activities are not corporate opportunities of the
Company; and (ii) such activities do not interfere with the performance of
Executive's duties hereunder. For purposes of this Agreement, the term the
"Company" shall mean the Company and all Subsidiaries.
4.2 During the Term of this Agreement, Executive shall serve
as the President and Chief Executive Officer of the Company or in such other
capacities as determined by the Board of Directors except as provided for under
Subsection 7.1. In the performance of all of his responsibilities hereunder,
Executive shall be subject to all of the Company's policies, rules, and
regulations applicable to its executive of comparable status and shall report
directly to, and shall be subject to, the direction and control of the Board of
Directors of the Company and shall perform such duties as shall be assigned to
him by the Board of Directors. In performing such duties, Executive will be
subject to and abide by, and will use his best efforts to cause other employees
of the Company to be subject to and abide by, all policies and procedures
developed by the Board of Directors.
4.3 To induce the Company to enter into this Agreement,
Executive represents and warrants to the Company that (i) Executive is not a
party or subject to any employment agreement or arrangement with other person,
firm, company, corporation or other business entity, (ii) Executive is subject
to no restraint, limitation or restriction by virtue of any law or rule of law
or otherwise which would impair Executive's right or ability (a) to enter the
employ of the Company, or (b) to perform fully his duties and obligations
pursuant to this Agreement.
5. RESTRICTIVE COVENANTS.
5.1 Executive acknowledges that (i) he has a major
responsibility for the operation, administration, development and growth of the
Company's business, (ii) the Company's business has become international in
scope, (iii) his work for the Company has brought him and will continue to bring
him into close contact with confidential information of the Company and its
customers, and (iv) the agreements and covenants contained in this Subsection
5.1 are essential to protect the business interests of the Company and that the
Company will not enter into this Agreement but for such agreements and
covenants. Accordingly, Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this
Agreement, during the Term of this Agreement and for a period of two years
thereafter Executive shall not, directly or indirectly, compete with respect to
any services or products of the Company which are either offered or are being
developed by the Company as of the date of termination; or, without limiting the
generality of the foregoing, by or become, or agree to be or become, interested
in or associated with, in any capacity (whether as a partner, shareholder,
owner, officer, director, Executive, principal, agent, creditor, trustee,
consultant, co-venturer or otherwise) any individual, corporation, firm,
association, partnership, joint venture or other business entity, which competes
with respect to any services or products of the Company which are either offered
or are being developed by the Company as of the date of termination; provided,
however, that Executive may own, solely as an investment, not more than one
percent (1%) of any class of securities of any publicly held corporation in
competition with the Company whose securities are traded on any securities
exchange.
5.1.2 During the Term of this Agreement and,
for a period of two years thereafter (the "Termination Period"), Executive shall
not, directly or indirectly, (i) induce or attempt to influence any employee of
the Company to leave its employ, (ii) aid or agree to aid any competitor,
customer or supplier of the Company in any attempt to hire any person who shall
have been employed by the Company within the one (1) year period preceding such
requested aid, (iii) induce or attempt to influence any person or business
entity who was a customer or supplier of the Company during any portion of said
period to transact business with a competitor of the Company in Company's
business, or (iv) induce or attempt to influence any of the research partners
and contract researchers of the Company, which had a contractual relationship
with the Company during the term of
this Agreement, to terminate or otherwise adversely affect their relationship
with the Company or any affiliate of the Company.
5.1.3 During the Term of this Agreement, the
Termination Period and any time thereafter, Executive shall not disclose to
anyone any information about the confidential or proprietary affairs of the
Company, including, without limitation, trade secrets, trade "know-how",
inventions, customer lists, business plans, operational methods, pricing
policies, marketing plans, sales plans, identity of suppliers or customers,
sales, profits or other financial information, which is confidential to the
Company or is not generally known in the relevant trade, nor shall Executive
make use of any such information for his own benefit.
5.2 If Executive breaches Subsection 5.1 (the "Restrictive
Covenants"), the Company shall have the following rights and remedies, each of
which shall be enforceable, and each of which is in addition to, and not in lieu
of, any other rights and remedies available to the Company at law or in equity.
5.2.1 Executive acknowledges and agrees that
in the event of a violation or threatened violation of any of the provisions of
Subsection 5.1.1, the Company shall have no adequate remedy at law and shall
therefore be entitled to enforce each such provision by temporary or permanent
injunctive or mandatory relief obtained in any court of competent jurisdiction
without the necessity or proving damages, posting any bond or other security,
and without prejudice to any other rights and remedies which may be available at
law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof,
is held to be invalid or unenforceable, the same shall not affect the remainder
of the covenant or covenants, which shall be given full effect, without regard
to the invalid or unenforceable portions. Without limiting the generality of the
foregoing, if any of the Restrictive Covenants, or any part thereof, is held to
be unenforceable because of the duration of such provision or the area covered
thereby, the parties hereto agree that the court making such determination shall
have the power to reduce the duration and/or area of such provision and, in its
reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer
jurisdiction to enforce the Restrictive Covenants upon the courts of any
jurisdiction within the geographical scope of such Restrictive Covenants. In the
event that the courts of any one or more of such jurisdictions shall hold such
Restrictive Covenants wholly unenforceable by reason of the breadth of such
scope or otherwise, it is the intention of the parties hereto that such
determination not bar or in any way affect the Company's right of the relief
provided above in the courts of any other jurisdictions within the geographical
scope of such Restrictive Covenants, as to breaches of such covenants in such
other respective jurisdictions, the above covenants as they relate to each
jurisdiction being, for this purpose, severable into diverse and independent
covenants.
6. TERMINATION.
6.1 Following the Initial Term, this Agreement shall
automatically be renewed for additional one-year terms on the anniversary date
of this Agreement (each a "Renewal Term" and, together with each Initial Term,
the "Term"), unless the Company or the Executive elects to terminate the
Agreement by giving 60 days prior written notice. At any time during the Initial
Term or any Renewal Term, either party may terminate this Agreement, for any
reason or no reason at all, upon 60 days prior written notice to the other
party; provided, that if the Company terminates the Executive during the Initial
Term for reasons other than for "Cause" (defined below), compensation as defined
in Sections 3.1 (base salary) above, shall continue for the remainder of the
Initial Term or six months, whichever is greater. If the Company terminates the
Executive during any Renewal Term for reasons other than for "Cause",
compensation as defined in Sections 3.1 (base salary) above, shall continue for
a period of 24 months from the effective date of such termination.
6.2 The Company also may terminate Executive's employment
under this Agreement effective immediately at any time for Cause. "Cause" shall
exist for such termination if Executive (i) is adjudicated guilty of illegal
activities involving moral turpitude by a court of competent jurisdiction, (ii)
commits any act of fraud or intentional misrepresentation that may harm the
Company, (iii) has engaged in serious misconduct, which conduct has, or would,
if generally known, materially adversely affect the good will or reputation of
the Company, (iv) is in material breach under this
Agreement, or (v) Executive habitually fails to perform the duties and
responsibilities of his employment as set forth in Section 4 of this Agreement
or as may be assigned or delegated to him from time to time by the Company, the
Board, or the Executive Committee of the Board.
6.3 If the Company terminates Executive's employment under
this Agreement pursuant to the provisions of Subsections 6.2, Executive shall
not be entitled to receive any severance pay.
6.4 If Executive's employment with the Company is terminated
as the result of Executive's purely voluntary resignation for reasons other than
those set forth in Section 7 below, Executive shall not be entitled to
compensation after the effective date of such resignation.
7. TERMINATION COMPENSATION.
7.1 Compensation as defined in Sections 3.1 (base salary)
above shall continue for a period of one (1) year following the date of
termination in the event the Executive resigns due to a substantial change in
ownership or Board of Directors membership as defined below.
7.2 A substantial change in ownership shall mean: (i) the sale
of over 50% of the corporation's assets, or (ii) a change in ownership of over
40% (in a block) of the outstanding stock of the Company or (iii) the
replacement or change of over 75% of the Board of Directors in one fiscal year.
8. EXPENSES.
8.1 Executive shall be entitled to reimbursement of all
reasonable expenses actually incurred in the course of his employment. Executive
shall submit to the Company a standardized expense report form, provided by the
Company, and shall attach thereto receipts for all expenditures. Expenses shall
include business travel.
8.2 The Company shall reimburse Executive within thirty (30)
days after submission by Executive of his expense report in correct and
appropriate form.
9. THE COMPANY'S AUTHORITY.
Executive agrees to observe and comply with the reasonable
rules and regulations of the Company as adopted by the Company's Board of
Directors, either orally or in writing, respecting performances of his duties
and to carry out and perform orders, directions, and policies stated by the
Board of Directors, to him from time to time, either orally or in writing.
10. PAID VACATION; SICK LEAVE; INSURANCE.
10.1 Executive shall be entitled to a paid vacation each year
equal to not less than four (4) weeks per year in addition to the paid holidays
on which the Company's offices are closed pursuant to Company policy relating to
paid holidays.
10.2 Executive shall be entitled to reasonable periods of paid
sick leave during the Term of the Agreement in accordance with the Company's
policy regarding such sick leave.
10.3 The Company shall provide Executive, at the Company's
expense, participation in group medical, accident and health insurance, and life
insurance plans of the Company as may be provided by the Company from time to
time to Company executives of comparable status, subject to, and to the extent
that, Executive is eligible under such benefit plans in accordance with their
respective terms.
11. LEGAL DEFENSE; AND INDEMNIFICATION.
The Company acknowledges that the medical/pharmaceutical
industry is a litigious industry whereby many regulatory fines, penalties and
third-party suits are directed at the individuals involved in ownership and
operations. The Company agrees to pay all legal fees, judgments, awards, bonds,
fines, penalties and costs related to the defense and outcome whereby Executive
was acting in his corporate capacity. The Company acknowledges that from time to
time the Executive becomes contingently liable for obligations of the Company.
The Company will make whole the Executive in case such contingent obligations
becomes direct. Also, in the event that Executive leaves the employ of the
Company for any reason, the Company will use its best efforts to remove the
Executive from such liabilities, whether contingent or direct.
12. MISCELLANEOUS.
12.1 The Company may, from time to time, apply for and take
out, in its own name and at its own expense, life, health, accident, disability
or other insurance upon Executive in any sum or sums that it may deem necessary
to protect its interests, and Executive agrees to aid and cooperate in all
reasonable respects with the Company in procuring any and all such insurance,
including without limitation, submitting to the usual and customary medical
examinations, and by filling out, executing and delivering such applications and
other instruments in writing as may be reasonably required by an insurance
company or companies to which an application or applications for such insurance
may be made by or for the Company.
12.2 This Agreement is a personal contract, and the rights and
interests of Executive hereunder may not be sold, transferred, assigned, pledged
or hypothecated except as otherwise expressly permitted by the provisions of
this Agreement. Executive shall not under any circumstances have any option or
right to require payment hereunder otherwise than in accordance with the terms
hereof. Except as otherwise expressly provided herein, Executive shall not have
any power of anticipation, alienation or assignment of payments contemplated
hereunder, and all rights and benefits of Executive shall be for the sole
personal benefit of Executive, and no other person shall acquire any right,
title or interest hereunder by reason of any sale, assignment, transfer, claim
or judgment or bankruptcy proceedings against Executive; provided, however, that
in the event of Executive's death, Executive's estate, legal representative or
beneficiaries (as the case may be) shall have the right to receive all of the
benefit that accrued to Executive pursuant to, and in accordance with, the terms
of this Agreement.
12.3 The Company shall have the right to assign this Agreement
to any successor of substantially all of its business or assets, and any such
successor and Executive shall be bound by all of the provisions hereof.
13. NOTICES.
All notices, requests, demands and other communications
provided for by this Agreement shall be in writing and (unless otherwise
specifically provided herein) shall be deemed to have been given three (3) days
after having been mailed in any general or branch United States Post office,
enclosed in a registered or certified postpaid envelope, addressed to the
parties stated below or to such changed address as such party may have fixed by
notice:
TO THE COMPANY: Mymetics Corporation
At the then current office address
for the Secretary or Acting Secretary
COPY TO: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
EXECUTIVE: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
14. ENTIRE AGREEMENT.
This Agreement supersedes any and all Agreements, whether oral
or written, between the parties hereto, with respect to the employment of
Executive by the Company and contains all of the covenants and Agreements
between the parties with respect to the rendering of such services in any manner
whatsoever. Each party to this Agreement acknowledges that no representations,
inducements, promises or agreements, orally or otherwise, have been made by any
party, or anyone acting on behalf of any party, which are not embodied herein,
and that no other agreement, statement or promise with respect to such
employment not contained in this Agreement shall be valid or binding. Any
modification of this Agreement will be effective only if it is writing and
signed by the parties hereto.
15. PARTIAL INVALIDITY.
If any provision in this Agreement is held by a court of
competent jurisdiction to be invalid, void, or unenforceable, the remaining
provisions shall nevertheless continue in full force and effect without being
impaired or invalidated in any way.
16. ATTORNEYS FEES.
Except with respect to paragraphs 5.3 and 5.4 which issues are
reserved for the court, any dispute regarding the negotiations leading up to the
execution of this Release and/or the interpretation or application of this
Agreement or the alleged breach hereof, or any act which allegedly has, or
would, violate any provision of this Agreement must be submitted to arbitration
before a neutral arbitrator. The arbitration shall be conducted in accordance
with the rules of American Arbitration Association. A written demand for
arbitration pursuant to Section 638 of the Code of Civil Procedure must be made
within sixty (60) days of the alleged breach. The results of arbitration will be
the exclusive, final and binding remedy for such claim or dispute.
17. GOVERNING LAW.
This Agreement will be governed by and construed in accordance
with the laws of the State of Delaware.
18. BINDING NATURE.
This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective representatives, heirs, successors
and assigns.
19. WAIVER.
No waiver of any of the provisions of this Agreement shall be
deemed, or shall constitute a waiver of any other provision, whether or not
similar, nor shall any waiver constitute a continuing waiver. No waiver shall be
binding unless executed in writing by the party making the waiver.
20. CORPORATE APPROVALS.
The Company represents and warrants that the execution of this
Agreement by its corporate officer named below has been duly authorized by the
Board of Directors of the Company, is not in conflict with any Bylaw or other
agreement and will be a binding obligation of the Company, enforceable in
accordance with its terms.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date above written.
MYMETICS CORPORATION
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Member of Board of Directors
EXECUTIVE:
/s/ ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇