EMPLOYMENT AGREEMENT
AGREEMENT between Ixion Biotechnology, Inc., a Delaware corporation
(the "Company"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (the "Executive"), dated as of August
31, 1994 (the "Agreement Date").
The Executive is currently employed as Chairman of the Board of
Directors and Chief Executive Officer of the Company. The Company wishes to
assure itself and the Executive of continuity of management both before or
after the event of a Change in Control of the Company, as hereinafter defined,
and to provide the Executive with the termination and other benefits set forth
in this Agreement in the event the Executive's employment with the Company
terminates under the circumstances described below.
NOW, THEREFORE, the Company and the Executive hereby agree as
follows:
1. OPERATION AND TERM OF AGREEMENT; CHANGE IN CONTROL
(A) Term. This Agreement shall be effective as of the Agreement
Date and shall continue in effect until the Expiration Date. The Expiration
Date shall initially be December 31, 1997, but commencing on January 1, 1997
and each January 1 thereafter, the Expiration Date shall automatically be
extended by one additional year unless, not later than September 30 of the
preceding year, the Company shall have given notice to the Executive that it
does not wish to extend the Expiration Date; provided, however, that if a
Change in Control shall have occurred prior to the original or extended
Expiration Date, the Expiration Date shall automatically be extended to the
third anniversary of the last day of the month in which the Change in Control
occurred.
(B) Change In Control. A change in Control means a change in
control of the Company which shall be deemed to have occurred if and when:
(i) the Company shall merge or consolidate with another
corporation in a transaction in which the Company is not the
surviving corporation, or the Company shall sell
substantially all of its assets to another corporation;
(ii) more than 35% of the Company's securities then entitled to vote
in the election of directors shall be acquired by any "person" (as
such term is used in Section 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended); or
(iii) during any period of 24 consecutive months commencing on the
Agreement Date, individuals who at the beginning of such period were
members of the Board of Directors of the Company shall cease for any
reason to constitute a majority of its Board of Directors.
2. CERTAIN DEFINITIONS
(A) Period of Employment. The Period of Employment means the period
of time commencing on the Agreement Date and ending on the Expiration Date or
the Termination Date, whichever is earlier.
(B) Contract Term. The Contract Term means the period of time
commencing on the Agreement Date and ending on the Expiration Date.
(C) Termination Date. The Termination Date means the date as of
which the Executive's employment with the Company shall cease or be deemed to
have ceased in the manner specified in Section 6 or Section 7.
3. EXECUTIVE'S RESPONSIBILITIES; LOCATION
(A) Position, Duties, Responsibilities. The Executive shall serve
in the position and have the duties and responsibilities of Chairman of the
Board and Chief Executive Officer.
(B) Best Efforts. During the Period of Employment, the Executive
shall devote substantially his full time, best efforts, and undivided
attention during normal business hours to the business and affairs of the
Company, except for reasonable vacations, illness, or incapacity. The
Executive is aware that reasonable performance objectives may be established
by the Company's Board of Directors in consultation with the Executive, for
Company-wide performance and for performance by the Executive. The Executive
agrees to work diligently throughout the Period of Employment to achieve any
such performance objectives that shall then exist.
(C) Principal Business Office. During the Period of Employment, the
Executive's principal business office shall be located in or near Gainesville,
Florida.
4. RESTRICTIVE COVENANTS
(A) Noncompetition. The Executive agrees that during the Period of
Employment and for the six-month period immediately following the Period of
Employment, the Executive shall not, directly or indirectly, in any capacity,
engage in any business which is substantially competitive with any business
then actively conducted by the Company or any of its affiliates or
subsidiaries, and the Executive shall not undertake to consult with or advise
any such competitive business or otherwise, directly or indirectly, engage in
any activity which is substantially competitive with or in any way adversely
and substantially affects any activity of the Company or any of its affiliates
or subsidiaries.
(B) Nondisclosure. Except as expressly provided herein, the
Executive agrees that during the Period of Employment and thereafter, the
Executive shall not make use of, disclose, divulge, or make accessible, to any
third party, any information of a secret or confidential nature known to the
Executive in the course of his employment with the Company or any of its
affiliates or subsidiaries until such information has come into the public
domain or has otherwise ceased to be secret or confidential.
(C) Inventions. All patentable and unpatentable inventions,
discoveries, and ideas, which are made or conceived by the Executive during
the term of this Agreement shall be the Company's sole and exclusive property
throughout the world. Promptly upon conception of such invention, discovery,
or idea, the Executive will disclose it to the Company which shall have full
power and authority to file and prosecute patent applications throughout the
world thereon and to procure and maintain patents thereon. The Executive
shall, at the Company's request and expense, execute documents and perform
such acts as counsel may deem advisable, to confirm in the Company all right,
title, and interest throughout the world, in and to, such invention,
discovery, or idea, and all patent applications, patents, and copyrights
thereon, and to enable and assist the Company in procuring, maintaining,
enforcing and defending patents, ▇▇▇▇▇ patents, copyrights, and other
applicable statutory protection throughout the world on any such invention,
discovery, or idea which may be patentable or copyrightable.
(D) Specific Performance and Injunctive Relief. The Executive
acknowledges and agrees that the Company or its affiliates and subsidiaries
will suffer irreparable injury if the provisions of this Section 4 are not
honored, that damages resulting from such injury will be incapable of being
precisely measured, and that the Company and its subsidiaries and affiliates
will not have an adequate remedy at law to redress the harm which such
violation shall cause. Accordingly, the Executive agrees that the Company
shall have the rights and remedies of specific performance and injunctive
relief, in addition to any other rights or remedies that may be available at
law or in equity, in respect of any failure, or threatened failure, on the
part of the Executive to comply with the provisions of this Section 4,
including, but not limited to, temporary restraining orders and temporary
injunctions to restrain any violation or threatened violation of this
Agreement by the Executive.
5. COMPENSATION, PERQUISITES, AND EMPLOYEE BENEFITS
(A) Base Compensation. For all substantially full time services
rendered during the Period of Employment, the Executive shall receive annual
base compensation at an initial rate of $75,000, which shall be increased, at
least annually, in accordance with the Company's regular administrative
practices generally applicable to its senior executives. At the Agreement
Date, such rate is acknowledged to be below the median base compensation as
reported by industry surveys relating to private companies of equivalent size.
Upon a determination by the Board of Directors that the Company has obtained
adequate initial financing, the Executive's base compensation shall be
increased to not less than the median base compensation as reported by the
most recent edition of Leadership in Biotechnology or any substantially
equivalent compensation survey chosen by the Board of Directors, and
thereafter, during the Period of Employment, shall not fall below such median
as reported from time to time in such survey. The Executive's cash base
compensation shall never be less than the base compensation paid to any other
senior management executive of the Company.
(B) Incentive Compensation. During the Period of Employment, the
Executive shall be and continue to be a full participant in the Company's
Annual Bonus Plan and Stock Option Plans (the "Incentive Plans"), as the
Incentive Plans are in effect from time to time with such improvements in the
Incentive Plans or other incentive compensation plans as may from time to time
be made in accordance with the practices of the Company. The Executive shall
be entitled to participate in any other incentive compensation plans generally
available to senior executives of the Company. If any of the Incentive Plans
are terminated or discontinued, the Executive shall be entitled to participate
in other incentive compensation plans with terms at least as favorable to the
Executive as the Incentive Plans in effect prior to the termination or
discontinuance of the Incentive Plans.
(C) Perquisites. During the Period of Employment, the Executive
shall be entitled to one club membership to be used for business purposes, and
shall be entitled to such other perquisites and fringe benefits, as shall be
approved by the Board of Directors. Upon a determination by the Board of
Directors that the Company has obtained adequate initial financing, the
Executive's perquisites shall include such perquisites generally available to
officers of his rank at companies of equivalent size and status in the
biotechnology industry, including without limitation a leased automobile,
first class air travel, additional club memberships, supplemental retirement
income, financial and legal counseling, and other perquisites.
(D) Employee Benefits. During the Period of Employment, the
Executive shall be entitled to participate in all employee benefit plans and
programs as in effect for senior executives of the Company ("Plans") under the
terms of the Plans, with such improvements in the Plans as may from time to
time be made in accordance with the practices of the Company. The Executive
shall be entitled to participate in any employee benefit plans and programs
generally available to senior executives of the Company. If any of the Plans
are terminated or discontinued, the Executive shall be entitled to participate
in other employee benefit plans with terms at least as favorable to the
Executive as the Plans as in effect prior to the termination or discontinuance
of the Plans.
(E) Other Obligations of the Company. Any increases in base and
incentive compensation, perquisites or employee benefits under this Agreement
or otherwise shall not diminish any other obligation of the Company hereunder.
6. DEATH OR DISABILITY
(A) Death. If the Executive should die during the Period of
Employment, his employment shall be deemed to have ceased on the last day of
the month in which death shall have occurred.
(B) Disability. "Disability" shall mean an illness or accident
which the Board of Directors determines in its discretion will or has
prevented the Executive from performing his duties under this Agreement for a
period of six consecutive months. In the event that the Executive incurs a
Disability during the Period of Employment, his employment shall be deemed to
have ceased on the last day of such six-month period.
7. TERMINATION
(A) Cause. Upon a determination by the Board of Directors, the
Company shall have the right at any time to terminate the Executive's
employment with the Company. The termination of the Executive's employment by
the Company during the Contract Term shall be deemed to be for "cause" only if
such termination shall be the result of any of the following:
(i) an act or acts of dishonesty by the Executive resulting
in conviction for a felony or conviction of a misdemeanor
involving moral turpitude;
(ii) a deliberate and intentional failure by the Executive
during the Period of Employment (except by reason of
incapacity due to illness or accident) to comply with the
provisions of this Agreement relating to the time and best
efforts to be devoted by the Executive to the affairs of the
Company;
(iii) the Executive's gross misconduct, if such conduct
results in demonstrably material injury to the Company; or
(iv) following a unanimous vote of the Board of Directors (the
Executive abstaining), the Board determines that the Executive
materially failed to meet the reasonable performance objectives
established by the Board for Company-wide performance and for
performance by the Executive;
provided that notice of such termination is given in accordance with Section
7(C) below.
(B) Good Reason. The Executive shall have the right at any time to
terminate his employment with the Company. Termination by the Executive shall
be deemed to be for "Good Reason" only if such termination shall be the result
of the following:
(i) a reduction during the Period of Employment in the
current level of the Executive's aggregate compensation,
including his annual base compensation, Annual Bonus Plan
awards, Stock Option Plan awards, employee benefit plan
coverages, and perquisites (other than a reduction in awards
or benefits that is generally applicable to participants in
a plan in accordance with the terms of the plan);
(ii) a diminishment during the Period of Employment in the
Executive's position, powers, authority, duties, or
responsibilities, or the business to which those powers,
authority, duties, or responsibilities apply; removal during
the Period of Employment of the Executive from the highest
office held on or after the Agreement Date; or change during
the Period of Employment in the Executive's chain of
supervision as it existed as of the Agreement Date (unless
as a result of, and only during, Executive's Disability); or
(iii) a material beach of this Agreement by the Company;
provided that notice of the Executive's election to terminate his employment
under this Agreement is given in accordance with Section 7(C) below. Failure
to elect to terminate with respect to one event giving rise to Good Reason
does not preclude the Executive from making the election with respect to a
subsequent event.
(C) Termination Procedure.
(1) Notice.
(a) Notice of termination of employment under this Agreement
shall be provided in writing by the Company or the Executive, as applicable,
and shall specify the date as of which the Executive's employment shall be
deemed to have ceased, which date shall in no event be earlier than 60 days
from the date of such notice.
(b) In the event that the Company elects to terminate employment,
the Company shall provide to the Executive the notice described in Section
7(C)(1)(a) above. If termination is alleged to be for Cause, such notice
shall also state that the Executive was guilty of conduct set forth in Section
7(A), with the particulars thereof specified in detail.
(c) In the event that the Executive elects to terminate
employment, the Executive shall provide to the Company the notice described in
Section 7(C)(1)(a) above. If termination is alleged to be for Good Reason,
such notice shall also specify the reason for such termination, as set forth
in Section 7(B), with the particulars thereof specified in detail, and shall
be given, except in the case of a continuing breach, within three calendar
months after the most recent event giving rise to Good Reason.
(2) Cure.
(a) In the case of the Executive's alleged breach or gross
misconduct set forth in Sections 7(A)(ii) or (iii), the Executive shall be
given the opportunity to remedy such alleged breach or gross misconduct within
30 days from his receipt of the notice referred to above, or take all
reasonable steps to that end during such 30-day period and thereafter.
(b) In the case of the Executive's allegation of Good Reason, the
Company shall be given the opportunity to remedy the alleged Good Reason
within 30 days from its receipt of the notice referred to above, or take all
reasonable steps to that end during such 30-day period and thereafter.
(3) Arbitration. In the event that the Executive's employment
shall be terminated by the Company and such termination is alleged to be for
Cause, the Executive shall have the right, in addition to all other rights and
remedies provided by law or equity, to seek arbitration as described below.
In the event that the Executive's employment shall be terminated by the
Executive and such termination is alleged to be for Good Reason, the Company
shall have the right, in addition to all other rights and remedies provided by
law or equity, to seek arbitration as described below. Such arbitration shall
be sought in Alachua County, State of Florida, under the rules of the American
Arbitration Association, by serving notice to arbitrate upon the other party
no more than 60 days after such party received the notice of termination
referred to above.
8. CONSEQUENCES OF TERMINATION, DEATH OR DISABILITY
(A) Termination by the Company Other Than for Cause or by the
Executive for Good Reason. In the event of a termination by the Company of
the Executive's employment during the Contract Term other than for Cause or by
the Executive for Good Reason, the Company shall, as liquidated damages, pay
to the Executive and provide him, in lieu of all other rights, remedies,
damages, and relief to which he might otherwise be entitled under this
Agreement, with the benefits described below in this Section 8(A):
(1) Severance. A lump-sum payment in an amount equal to (i) the
aggregate base compensation at the then current rate payable through the
Expiration Date but not less than one times Executive's base compensation in
effect on the Termination Date or, (ii) in event of a Change of Control, the
lesser of such amount and 299% of the "base amount" of the Executive as
determined under section 280G of the Internal Revenue Code of 1986. This
amount shall be reduced by any severance payments made to the Executive under
any other employment contract or severance arrangement with the Company.
(2) Annual Incentive Compensation. A payment in respect of the
annual incentive compensation of the Executive of the following amounts:
(a) any Annual Bonus payments awarded for a year prior to the
year in which the Termination Date occurs but not paid as of the Termination
Date, which amount shall not be less than the Executive's annual base
compensation for such year multiplied by item (ii) of Section 8(A)(2)(b)
below; and
(b) an amount in respect of the annual incentive compensation
that would have been earned in respect of the year in which such Termination
Date occurs, in an amount calculated by multiplying (i) the rate of annual
base compensation in effect for the Executive immediately prior to the
Termination Date by (ii) the average of the annual awards under the Annual
Bonus Plan payable in respect of the two calendar years immediately preceding
the year for which payment is made, with each such award expressed as a
percentage of the annual base compensation paid to the Executive for the
respective calendar years.
(3) Stock Option Plan. With respect to the Company's Stock
Option Plan, the following:
(a) All unvested options shall immediately vest on the
Termination Date;
(b) Any option which is unexerciseable shall be accelerated to
become immediately exercisable on the Termination Date; and
(c) All unexercised options shall remain exercisable for the
maximum period then permitted by the Internal Revenue Code of the United
States.
(4) Restricted Stock; Right to Purchase Stock. All unvested
restricted stock shall immediately vest on the Termination Date. Executive
shall have the right to convert all, or a portion, of any outstanding balances
of any loan to the Company, or any deferred compensation account into voting
common stock of the Company at a price equal to the lowest price (after
adjustment for stock splits or stock dividends) at which common stock has been
sold (other than pursuant to the exercise of outstanding options under the
Stock Option Plan, the Board Retainer Plan, or any similar plan) at any time
during the 24 months immediately preceding the Termination Date. Such right
shall be exercisable not later than 60 days after the Termination Date.
(5) Other Compensation and Benefits. With respect to
compensation and benefits other than those specified in this Section 8, the
Executive shall receive the amounts and arrangements, if any, ordinarily
provided to senior executives of the Company upon termination of employment in
accordance with the plans, programs, and practices of the Company applicable
to senior executives, as in effect on the Termination Date or, at Executive's
election, on the date of a Change in Control. In addition, the Executive
shall receive the amounts and arrangements provided upon termination of
employment in accordance with the Company's Deferred Compensation Plan, the
subordinated note agreement, and any other agreement between the Company and
the Executive executed on or after the Agreement Date.
(B) Disability or Death.
(1) Disability. In the event of the Executive's Disability
during the Period of Employment, the Executive shall be entitled to the
compensation and benefits provided for in Sections 5(A), (C) and (D) of this
Agreement for the Period of Employment. Payment shall be without prejudice to
any other payments due in respect of the Executive's death or Disability.
(2) Death. In the event of the death of the Executive during the
Period of Employment, the Executive's representative shall be entitled to the
compensation provided in Section 5(A) of this Agreement through the Period of
Employment. Payments shall be without prejudice to any other payment due in
respect of the Executive's death or Disability.
(3) Incentive Compensation. In the event of the Executive's
Disability or death during the Period of Employment, the Company shall pay the
Executive or his legal representative, in addition to the payments required by
this Section 8(B): an award under the Annual Bonus Plan, determined in
accordance with Section 8(A)(2) on a pro-rata basis, for the portion of the
calendar year prior to the Termination Date (or, in the case of Disability,
the earlier of the Termination Date and the Expiration Date).
(4) Reduction of Payments. The amount of any payments due under
this Section 8(B) shall be reduced by any payments to which the Executive is
entitled for the same period because of disability under any disability
benefit plan of the Company providing salary continuation.
(C) Termination by the Company for Cause or by the Executive Other
Than for Good Reason. In the event of a termination by the Company of the
Executive's employment during the Contract Term for Cause or by the Executive
other than for Good Reason, the Executive shall be entitled to the
compensation and benefits ordinarily provided to senior executives of the
Company upon termination of employment in accordance with the plans, programs,
and practices of the Company applicable to senior executives as in effect on
the Termination Date of the date of the Change in Control, at Executive's
election.
(D) Time of Payment. All lump-sum payments to be made by the
Company under this Section 8 shall be made within five days after the
Termination Date. Annuity payments shall commence on the last day of the
calendar month in which the Termination Date occurs.
9. INTEREST ASSUMPTIONS
Determination of any present values relating to this Agreement for
purposes of sections 280G and 4999 of the Internal Revenue Code shall be based
upon a discount rate equal to 120 percent of the applicable Federal rate
(determined under section 1274(d) of the Internal Revenue Code of 1986 and the
regulations thereunder), compounded semiannually. The Executive shall be
deemed to have elected the discount rate as in effect on the Agreement Date.
The Company hereby agrees to use the discount rate that is deemed to be
elected by the Executive.
10. WITHHOLDING
All payments required to be made by the Company hereunder to the
Executive shall be subject to the withholding of such amounts, if any,
relating to tax, excise tax, and other payroll deductions as the Company may
reasonably determine it should withhold pursuant to any applicable law or
regulation.
11. INDEMNIFICATION AND INSURANCE; LEGAL EXPENSES
(A) Indemnification and Insurance. The Company will indemnify the
Executive (including payment of expenses in advance of final disposition of
the proceeding) to the fullest extent permitted by the laws of the State of
Florida and the Certificate of Incorporation and By-Laws of the Company, in
each case as in effect on the date of the Change in Control or on the
Termination Date, whichever affords greater protection to the Executive; and
the Executive shall be entitled to the protection of any insurance policies
the Company may elect to maintain generally for the benefit of its directors
and officers, against all costs, charges, and expenses whatsoever incurred or
sustained by him in connection with any action, suit, or proceeding to which
he may be made a party by reason of his being or having been a director,
officer, or employee of the Company or any of its subsidiaries or affiliates
or his serving or having served any other enterprise as a director, officer,
or employee at the request of the Company. The Company shall cause to be
maintained in effect for not less than six years from the Termination Date
policies of directors' and officers' liability insurance of at least the same
coverage as those policies, if any, maintained by the Company on the
Termination Date or the date of the Change in Control and containing terms and
conditions which are no less advantageous than such policies, or if such
coverage is not available, the best available coverage for equal cost to the
Company.
(B) Legal Expenses. In the event of any litigation, arbitration, or
other proceeding between the Company and the Executive with respect to the
subject matter of this Agreement or the enforcement of the Executive's rights
hereunder, the Company shall reimburse the Executive, regardless of the
outcome, for all of his reasonable costs and expenses relating to such
litigation, arbitration, or other proceeding, including, without limitation,
reasonable attorneys' fees and expenses. In no event shall the Executive be
required to reimburse the Company for any of the costs or expenses relating to
such litigation, arbitration, or other proceeding.
12. NOTICES
All notices, requests, demands and other communications provided for
by this Agreement shall be in writing and shall be sufficiently given if and
when mailed in the continental United States by registered or certified mail
or personally delivered to the party entitled thereto at the address stated
below or to such changed address as the addressee may have given by a similar
notice:
To the Company: Ixion Biotechnology, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
To the Executive: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇.▇. ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
13. REGISTRATION RIGHTS
(A) Mandatory Registration under the Act. Provided the Company is
then a public company, promptly after the Company's receipt of a request, made
by the Executive at any time during the Contract Term or prior to the third
anniversary of the Termination Date, whichever is later, to register under the
Securities Act of 1933 (the "Act"), at least 100,000 shares of Company common
stock owned by Executive, to enable such Executive to make an underwritten or
other public secondary offering thereof, the Company shall cause a
registration statement to be filed with the Securities and Exchange
Commission (the "Commission") with respect to the number of such shares
specified in the request, and shall use its best efforts to cause the
registration statement to become effective. The Company shall not be required
to cause more than one registration statement to be filed pursuant to this
Section 13(A). The Company shall be entitled to include other securities of
the Company to be offered either by the Company or other stockholders of the
Company in any such registration statement; provided, however, that the
Company or the holder or holders of other securities of the Company to be
registered, as the case may be, shall agree to execute and deliver the
underwriting agreement, if any, to be executed and delivered in connection
with any such registration and the Executive requesting the registration shall
have control of such registration and may require that any such other
securities of the Company not be included in the registration statement if he
is advised by the investment banking firm managing the underwriting that it
reasonably believes that such inclusion would adversely affect the offering of
the shares to be covered by the proposed registration statement. The Company
shall be entitled to postpone the filing of any such registration statement
for a reasonable period of time if the Company is, at the time at which it
receives any such request by Executive, conducting or is about to conduct, an
offering of its securities, and the Company is advised by its investment
banking firm that such offering would be adversely affected by the
registration requested.
(B) Inclusion in Other Registrations. If, at any time during the
period referred to in section 13(A) above, the Company shall determine or be
required to register any shares of its common stock (whether on behalf of
itself or any other person) under the Act on Forms ▇-▇, ▇-▇, ▇-▇, ▇▇-▇, or SB-
2 (or if such forms are rescinded by the Commission, the forms which supplant
such forms), excluding any registration for the offering and sale of
securities of the Company to its employees, it will notify Executive in order
that he may request that all or a part of the any shares of common stock owned
by him be included in the registration statement. If requested by the
Executive in writing within 20 days after the Company's notice, the Company
will include the requested number of shares in such registration statement.
Any such request shall include the agreement of the Executive requesting the
registration to execute and deliver the underwriting agreement, if any, to be
executed and delivered in connection with such registration. The Company may,
however, decline to include all or a part of the requested number of shares in
a registration statement pursuant to this section if it is advised by the
investment banking firm managing the underwriting that such inclusion would
adversely affect the offering of the shares to be covered by the proposed
registration statement.
The Company shall use its best efforts to file such post-effective
amendments to any registration statement described in this Section 13(B) as
shall be necessary to keep it effective until six months after the effective
date of the registration statement or the date on which all of the shares of
the Purchasers covered thereunder shall have been sold, whichever is earlier.
As a condition to the Company's obligation under this Section 13(B)
to cause a registration statement or amendment to be filed or shares to be
included in a registration statement, the Executive shall provide such
information and execute such documents as may reasonably be required in
connection with such registration. In addition, the Company shall not be
required to include such shares in a registration statement if it shall have
received opinions of its and the Executive's counsel to the effect that the
proposed disposition of such shares may be effected without registration under
the Act.
14. GENERAL PROVISIONS
(A) Determinations of Value. Whenever, under this Agreement, it is
necessary to determine whether one benefit is less than, equal to, or larger
than another in value (whether or not such benefits are provided under this
Agreement), such determination shall be made using the assumptions described
in Section 9.
(B) Other Existing Agreements. Except as specifically set forth
in this Agreement, this Agreement shall supersede any right under any other
agreement relating to terms of employment between the Company and the
Executive existing as of the Agreement Date.
(C) Limitation. This Agreement shall not confer any right or
impose any obligation on the Executive to continue in the employ of the
Company, or limit the right of the Company or the Executive to terminate his
employment.
(D) Company Set-Off and Counterclaim. The Company shall have no
right of set-off or counterclaim in respect of any claim, debt, or obligation
against any payments provided for in this Agreement.
(E) Assignment of Interest. No right to or interest in any
payments shall be assignable by the Executive; provided, however, that this
provision shall not preclude him from designating one or more beneficiaries to
receive any amount that may be payable after his death and shall not preclude
his executor or administrator from assigning any right hereunder to the person
or persons entitled thereto.
(F) Amendment, Modification and Waiver. No provision of this
Agreement may be amended, modified or waived unless such amendment,
modification or waiver shall be agreed to in writing signed by the Executive
and by a duly authorized Company officer.
(G) Enforceability. If any provision of this Agreement shall be
determined to be invalid or unenforceable by a court of competent
jurisdiction, the remaining provisions of this Agreement shall remain in full
force and effect to the fullest extent permitted by law.
(H) Entirety of Agreement. This Agreement constitutes the entire
agreement between the Company and the Executive relating to the subject matter
hereof. Any compensation or benefits to which the Executive is entitled under
this Agreement shall be provided based solely upon its terms, without regard
to any materials used in the preparation or consideration of this Agreement,
including any summary of terms or estimate of amounts relating to this
Agreement.
(I) Company and Successors. This Agreement shall be binding upon
and inure to the benefit of the Company and any successor of the Company
including, without limitation, any corporation or corporations acquiring
directly or indirectly all or substantially all of the assets of the Company,
whether by merger, consolidation, sale, or otherwise (and such successor shall
thereafter be deemed "the Company" for the purposes of this Agreement), but
shall not otherwise be assignable by the Company.
(J) Definition of Executive. The word "Executive" shall,
wherever appropriate, include his dependents, beneficiaries, and legal
representatives.
(K) Conflict of Law. The validity, interpretation, performance and
enforcement of this Agreement shall be governed by the laws of the State of
Florida, without giving effect to the principles of conflict of laws thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
IXION BIOTECHNOLOGY
By
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President
[SEAL]
ATTEST:
Secretary
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Executive
Employwg.Agr