EMPLOYMENT AGREEMENT
THIS AGREEMENT is made June 1, 1996, by and between BioTime, Inc. (the
"Company"), and Judith Segall (the "Employee").
W I T N E S S E T H:
WHEREAS, the Company desires to employ Employee, and Employee is
willing to accept such employment, all on the terms and subject to the
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the terms and conditions
hereinafter set forth, the parties hereto agree as follows:
1. Employment. The Company hereby employs Employee, and Employee hereby
accepts employment with the Company on the terms and conditions herein set
forth.
2. Term of Agreement. This Agreement shall commence on June 1, 1996 and
shall continue in effect until December 31, 2000 (the "Expiration Date"), unless
terminated pursuant to the express provisions of this Agreement.
3. Renewal. This Agreement shall be renewed automatically for an
additional one (1) year period on January 1, 2001 and on each anniversary
thereof, unless one party gives the other advance written notice of non-renewal
at least sixty (60) days prior to such date. Either party may elect not to renew
this Agreement with or without cause.
4. Position; Duties. Employee shall be employed in the position and
shall perform the duties and functions set forth on EXHIBIT A, and such
additional duties and functions as are normally carried out by an executive in a
comparable position with a developer of pharmaceutical or medical products, and
as the Board of Directors or a duly authorized officer of the Company shall from
time to time reasonably determine. Employee shall devote his or her best
efforts, skills and abilities, on a full-time basis, exclusively to the
Company's business pursuant to, and in accordance with, reasonable business
policies and procedures, as fixed from time to time by the Board of Directors of
the Company (the "Board of Directors"). Employee covenants and agrees that he or
she will faithfully adhere to and fulfill such policies as are established from
time to time by the Board of Directors.
5. Compensation
5.1 Salary and Bonuses. During the term of this Agreement, the
Company shall pay to the Employee:
5.1.1 Base Salary. A base annual salary (the "Base
Salary") in the following amounts: Eighty-Five Thousand Dollars ($85,000) during
the calendar year beginning
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January 1, 1996; Ninety-Two Thousand Dollars ($92,000) during the calendar year
beginning January 1, 1997; Ninety-Nine Thousand Dollars ($99,000) during the
calendar year beginning January 1, 1998; One Hundred Six Thousand Dollars
($106,000) during the calendar year beginning January 1, 1999; and One Hundred
Thirteen Thousand Dollars ($113,000) during the calendar year beginning January
1, 2000. The Base Salary shall be payable in equal semi-monthly installments or
in such other installments as may be agreed upon between the parties. The Base
Salary may be increased from time to time in the discretion of the Board of
Directors.
5.1.2 Financing Bonus. Employee shall receive a
one-time cash bonus in the amount of Twenty-Five Thousand Dollars ($25,000) if
the Company receives at least One Million Dollars ($1,000,000) of equity
financing from a pharmaceutical company. Such bonus shall be paid within thirty
(30) days after the Company has received such $1,000,000. For the purpose of
this paragraph the following provisions shall apply: (a) all payments made by a
pharmaceutical company on an installment basis, or upon the exercise of options,
warrants or other rights will be aggregated; and (b) in the event of an exchange
or conversion of any debt security or evidence of indebtedness for or into any
equity security of the Company, the indebtedness so converted or exchanged
(including all principal and accrued interest) shall be deemed paid to the
Company as equity financing on the date of such exchange or conversion. The term
"equity financing" means the payment of cash to the Company for the purchase of
(a) shares of capital stock of any class of the Company (whether or not
convertible into another class of capital stock of the Company), and (b) any
option, warrant or other security (other than a debt security or instrument
evidencing indebtedness of the Company) entitling the holder thereof to purchase
or otherwise acquire capital stock.
5.1.3 Other Bonuses. The Company may pay Employee such
bonuses, if any, as the Board of Directors may, from time to time determine.
5.2 Benefit Plans. Employee shall be eligible (to the extent
he or she qualifies) to participate in any retirement, pension, life, health,
accident and disability insurance, stock option plan or other similar employee
benefit plans which may be adopted by the Company (or any other member of a
consolidated group of which the Company is a part) for its executive officers or
other employees; provided, that Employee shall not be eligible to participate in
the Company's 1992 Stock Option Plan (or any similar stock option or stock
purchase plan) so long as Employee is a member of the Stock Option Committee (or
other committee governing such stock option or stock purchase plan) appointed by
the Board of Directors.
5.3 Expense Reimbursement. The Company shall reimburse
Employee for all reasonable expenses incurred by Employee in connection with the
performance of his or her employment duties, subject to the Company's policies
and procedures in effect from time to time, and provided that Employee submits
supporting vouchers.
5.4 Vacation; Sick Leave. Employee shall be entitled to four
weeks of vacation, without reduction in compensation, during each calendar year.
Such vacation shall be taken at
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such time as is consistent with the needs and policies of the Company. All
vacation days shall accrue based upon days of service. The Company may, from
time to time, adopt policies governing the disposition of unused vacation days
remaining at the end of the Company's fiscal year; which policies may govern
whether unused vacation days will be paid, lost, or carried over into subsequent
fiscal years. Employee shall also be entitled to leave from work, without
reduction in compensation, due to illness to the extent allowed by the Company
consistent with its policies and procedures and subject to the provisions of
this Agreement governing termination due to disability, sickness or illness.
6. Termination. This Agreement shall terminate prior to the Expiration
Date upon the happening of any of the following events:
6.1 Death. Automatically and without notice upon the death of
Employee;
6.2 Voluntary Termination by Employee. By Employee voluntarily
leaving the employ of the Company with or without the consent of the Company
(which Employee shall be entitled to do upon thirty (30) days written notice);
6.3 Disability. Upon written notice of termination from the
Company to Employee, after Employee becomes disabled, either totally or
partially, for a period of ninety (90) days during any one hundred fifty (150)
day period, so that he or she is prevented from performing his or her principal
duties pursuant to this Agreement; provided, that the Company's obligation to
pay the compensation due under Section 5 shall continue until this Agreement is
so terminated.
6.4 For Cause. Upon discharge of Employee, on written notice,
by the Board of Directors on grounds of: (i) conviction of a crime of moral
turpitude; (ii) deliberate failure to carry out the reasonable policies of the
Board of Directors, as they may relate to Employee's duties under this
Agreement; (iii) chronic alcohol or drug abuse; (iv) fraud, embezzlement or
misappropriation of Company assets; (v) disloyal, dishonest or illegal conduct
in the course of his or her employment; or (vi) a material default or breach of
any of the covenants made by Employee in this Agreement. The written notice
delivered by the Board of Directors shall specify the ground for termination and
shall be supported by a statement of all relevant facts constituting cause for
termination. Any termination under this Section 6.4 shall be deemed a
termination for "cause".
6.5 Notice and Opportunity to Cure. If the Company intends to
terminate this Agreement under clause (ii) or (vi) of Section 6.4, and if all of
Employee's acts or omissions giving rise to such determination to terminate this
Agreement are, in the reasonable determination of the Board of Directors,
susceptible to substantially complete cure by Employee within a period of thirty
(30) days, the written notice given to Employee pursuant to Section 6.4 shall
state that the effective date of termination shall be thirty (30) days from the
date of such notice, and such notice shall be rescinded if Employee effects a
substantially complete cure within such thirty (30) day period.
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6.6 Payment of Compensation After Termination . Upon the
occurrence of any events set forth in Sections 6.1 through 6.4 hereof or Section
6.8, the Company shall be obligated to pay to Employee (or Employee's estate in
the event of Employee's death) (i) the compensation due him or her under Section
5.1.1 up to the date of termination; (ii) any unpaid bonus previously awarded by
the Board of Directors; and (iii) compensation for any earned but unused
vacation, which compensation shall be paid at the Base Salary rate in effect at
the time such unused vacation accrued.
6.7 Payment Upon Termination by the Company Without Cause. In
the event this Agreement is terminated by the Company for a reason other than
one of those set forth in Section 6.3 or Section 6.4 or Section 6.8, the Company
shall be required to continue to pay Employee, as severance compensation, the
compensation due him or her under Section 5.1.1, for the unexpired term of this
Agreement (without regard to Section 3). Such severance compensation shall be
paid for a period equal to the number of weeks remaining in the unexpired term
of this Agreement (without regard to Section 3). Employee may elect to receive
the severance compensation (or such part of the severance compensation as shall
then remain unpaid) in a lump sum. Such election may be made by written notice
to the Company, and if such election is made the lump sum shall be paid by the
Company within ten (10) days after such notice.
6.8 Change of Control. Notwithstanding the foregoing, the
Company or its successor, or Employee may terminate this Agreement, with or
without cause, in connection with a Change of Control of the Company. In the
event of such a termination, the Company shall pay Employee on the date of
termination a lump sum payment equal to the greater of (a) 2.99 times Employee's
"Base Amount" and (b) the compensation due him or her under Section 5.1.1 for
the unexpired term of this Agreement (without regard to Section 3). Such payment
shall be in addition to any unpaid amounts otherwise then due Employee under
Section 5 of this Agreement. Any termination of this Agreement, except
termination under Sections 6.1 through 6.4, within twelve months after either
(i) the earliest date on which the Company enters into a letter of intent,
memorandum of agreement, or similar document leading to a Change of Control, or
(ii) the effective date of a Change of Control, shall be deemed conclusively to
be a termination in connection with a Change of Control. If the Company or its
successor causes a material reduction in Employee's responsibilities or
compensation after a Change of Control, then Employee may at Employee's option
terminate this Agreement under Section 6.2 any time within one hundred eighty
(180) days after such reduction, and such resignation shall be deemed a
termination by the Company in connection with a Change of Control and shall
entitle Employee to the benefits of this Section 6.8. For purposes of this
Agreement, the following definitions shall apply.
6.8.1 "Change of Control" means (i) the acquisition of
Voting Securities of the Company by a Person or an Affiliated Group entitling
the holder thereof to elect a majority of the directors of the Company;
provided, that an increase in the amount of Voting Securities held by a Person
or Affiliated Group who previously held sufficient Voting Securities to elect a
majority of the directors shall not constitute a Change of Control; and
provided, further, that an
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acquisition of Voting Securities by one or more Persons acting as an underwriter
in connection with a sale or distribution of such Voting Securities shall not
constitute a Change of Control under this clause (i); (ii) the sale of all or
substantially all of the assets of the Company; or (iii) a merger or
consolidation of the Company with or into another corporation or entity in which
the stockholders of the Company immediately before such merger or consolidation
do not own, in the aggregate, Voting Securities of the surviving corporation or
entity (or the ultimate parent of the surviving corporation or entity) entitling
them, in the aggregate (and without regard to whether they constitute an
Affiliated Group) to elect a majority of the directors or persons holding
similar powers of the surviving corporation or entity (or the ultimate parent of
the surviving corporation or entity); provided, however, that in no event shall
any transaction described in clauses (i), (ii) or (iii) be a Change of Control
if all of the Persons acquiring Voting Securities or assets of the Company or
merging or consolidating with the Company are one or more direct or indirect
subsidiary or parent corporations of the Company.
6.8.2 "Voting Securities" means shares of capital stock
or other equity securities entitling the holder thereof to regularly vote for
the election of directors (or for person performing a similar function if the
issuer is not a corporation), but does not include the power to vote upon the
happening of some condition or event which has not yet occurred.
6.8.3 "Person" means any natural person or any
corporation, partnership, limited liability company, trust, unincorporated
business association or other entity.
6.8.4 "Affiliated Group" means (i) a Person and one or
more other Persons in control of, controlled by, or under common control with
such Person; and (ii) two or more Persons who, by written agreement among them,
act in concert to acquire Voting Securities entitling them to elect a majority
of the directors of the Company.
7. Renegotiation. Employee shall be entitled to seek a modification of
this Agreement prior to the Expiration Date if the market value of the Company's
outstanding capital stock exceeds $75,000,000. The Company will negotiate in
good faith with Employee in connection with any such request by the Employee for
such a modification of this Agreement.
8. Intellectual Property Agreement. Employee acknowledges that the
Intellectual Property Agreement previously executed and delivered by Employee
shall remain in effect and shall not be affected by the terms of this Agreement
or the termination of this Agreement.
9. Entire Agreement. The provisions of this Agreement, including the
exhibits attached to this Agreement, constitute the entire agreement between
Employee and the Company with respect to the subject matter of this Agreement,
and supersede any prior oral understanding. No modification, supplement or
discharge of this Agreement shall be effective unless in writing and executed on
behalf of the party to be charged.
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10. Waiver. No waiver by either party of any condition, term or
provision of this Agreement shall be deemed to be a waiver of any proceeding or
succeeding breach of the same or of any other condition, term or provision of
this Agreement.
11. Assignability. This Agreement, and the rights and obligations of
the parties under this Agreement, may not be assigned by Employee. The Company
may assign any of its rights and obligations under this Agreement to any
successor or surviving corporation resulting from a merger, consolidation, sale
of assets or stock, or other corporate reorganization, upon condition that the
assignee shall assume, either expressly or by operation of law, all of the
Company's obligations under this Agreement.
12. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
13. Construction. This Agreement shall be construed in accordance with
the laws of the State of California.
14. Survival. This Section 14 and the covenants and agreements
contained in Sections 5.3, 6.6, 6.7, and 6.8 of this Agreement shall survive
termination of Employee's employment.
15. Notices. Any notices or other communication required or permitted
to be given under this Agreement shall be in writing and shall be sent by United
States mail, first class certified or registered postage prepaid, return receipt
requested, or personally delivered to the parties at the following addresses:
To the Company: BioTime, Inc.
935 Pardee Street
Berkeley, California 94710
Attention: President
To Employee: Judith Segall
935 Pardee Street
Berkeley, California 94710
A notice sent by certified or registered mail shall be deemed delivered on the
fourth day after deposit in the United States mail, postage prepaid, and
addressed as aforesaid. Any party may change its address for notice by giving
notice to the other party in the manner provided in this Section.
16. Unenforceable Provisions. If all or part of any one or more of the
provisions contained in this Agreement is for any reason held to be invalid,
illegal, or unenforceable in any respect, the invalidity, illegality, or
unenforceability shall not affect any other provisions, and this
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Agreement shall be equitably construed as if it did not contain the invalid,
illegal, or unenforce able provision.
17. Section Headings. Section headings are for the convenience of the
parties and do not form a part of this Agreement.
18. Section and Other References. References in this Agreement to
Sections, subsections, and Exhibits are references to sections and subsections
in this Agreement and exhibits attached to this Agreement unless specified
otherwise.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
/s/ Judith Segall
EMPLOYEE: ___________________________
Judith Segall
COMPANY: BIOTIME, INC.
/s/ Victoria Bellport
By: __________________________
Chief Financial Officer
Title: _______________________
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EXHIBIT A
DUTIES AND RESPONSIBILITIES
The Corporate Secretary shall be responsible for the keeping the
corporate records as specified in the bylaws of the Company. In such capacity,
she shall keep, or cause to be kept, at the principal executive office of the
Company, a book of minutes of all meetings of directors and shareholders, with
the time and place of holding, whether regular of special, and if special, how
authorized, the notice thereof given or the waivers of notice, the names of
those present at directors' meetings, the number of shares present or
represented at shareholders' meetings and proceedings thereof. She shall keep,
or cause to be kept, at the principal executive office of the Company, or at the
office of the Company's transfer agent, a share register, as specified in the
Company's bylaws. She shall also keep, or cause to be kept, at the principal
executive office of the Company, the original or a copy of the bylaws as amended
or otherwise altered to date, certified by her. She shall give, or cause to be
given, notice of all meetings of shareholders and directors required to be given
by law or the bylaws. She shall have charge of the seal of the Company and have
such other powers and perform such other duties as may from time to time be
prescribed by the board or the bylaws.
She will also serve as the Vice President of Technology. In such
capacity, and subject to the ultimate authority of the Board of Directors, she
will be involved in the procurement, development, management and maintenance of
Company-operated facilities, laboratories, offices and equipment. She will
participate in the acquisition and use of new apparatus and instrumentation,
including those areas of communications and computer sciences. She will attend
scientific meetings, present scientific papers and discussions and interface
with the mass and professional media. She will participate in and manage company
experimentation, scientific services, and product manufacturing, especially in
the areas of clinical and nutritional chemistry, electronics and computer
sciences. She will work with technical and non-technical management in designing
company policy and direction. She will participate in the design and activities
of the Company's marketing programs.
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