Exhibit 10.33
ENGAGEMENT AGREEMENT
AGREEMENT made as of the 23rd day of June, 2004 between Hemispherx Biopharma,
Inc., a Delaware Corporation having an office at One Penn Center, 1617 JFK
Boulevard, Philadelphia, Pennsylvania 19103 (hereinafter referred to as the
"CORPORATION"), and Robert E. Peterson, an individual residing at 3232 West 72nd
Street, Tulsa, Oklahoma 74132 (hereinafter referred to as "PETERSON").
IN CONSIDERATION of the premises and mutual covenants and conditions herein
contained, the CORPORATION and PETERSON hereby agree as follows:
1. ENGAGEMENT The CORPORATION agrees to engage PETERSON, and PETERSON agrees to
serve the CORPORATION as a Chief Financial Officer for the CORPORATION upon the
terms and conditions hereafter set forth. The duties of PETERSON shall be
consistent with his position as an executive, and shall be those duties
customarily performed by an executive of his experience. The CORPORATION
originally engaged PETERSON in this capacity on April 15, 1993. This Agreement
basically incorporates and revises those terms outlined in the prior Engagement
Agreements.
2. TERM This Agreement becomes effective on July 1, 2004 and shall expire on
June 30, 2006 subject to provisions of Article 7 herein provided.
3. COMPENSATION AND OTHER BENEFITS
(a) For his services to the CORPORATION during the TERM, the CORPORATION
shall pay PETERSON a fee ("Fee") at the annual base rate of One Hundred Ninety
Eight Thousand ($198,000) Dollars. This annual base rate will be increased each
year to reflect the increase in the cost of inflation index for the preceding
year.
(b) Upon the CORPORATION receiving FDA approval for commercial application
of "Ampligen" (the CORPORATION'S primary product being developed), the
CORPORATION will pay PETERSON an additional bonus compensation in the sum of One
Hundred Thousand Dollars ($1000.000.00).
(c) The CORPORATION shall issue to PETERSON Options to purchase fifty
thousand (50,000) shares of Common Stock of Hemispherx Biopharma, Inc. with an
exercise price equal to the closing price of Hemispherx Biopharma's Common Stock
as traded on the American Stock Exchange on June 23, 2004 and expiring ten (10)
years from date of issue.
(d) The CORPORATION shall grant Peterson a bonus in each year that the
Chief Executive Officer is granted a bonus. Each bonus granted shall be a
percentage of Peterson's annual base compensation, with the percentage being
equal to that percentage of the Chief Executive Officer's annual base
compensation granted to the Chief Executive Officer as a bonus.
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(e) During the term of this Agreement, the CORPORATION shall grant
additional stock options to PETERSON at the same time and on the same terms and
conditions as those granted to other employees and/or executives.
(f) As an independent contractor, PETERSON will not participate in the
CORPORATION'S Group Medical program or 401K pension program.
4. SERVICES PETERSON agrees to serve the CORPORATION faithfully and to the best
of his ability, and shall devote eighty-five percent (85%) of his business time,
attention and energies to the business of the CORPORATION during the regular
business hours and at any other time during the week as reasonably requested by
the CORPORATION and/or required by the demands of his position. All services
required to be rendered by PETERSON may be rendered for the benefit of any of
the CORPORATION'S affiliates or subsidiaries, but no liability shall attach to
such affiliate or subsidiary for the payment of any compensation hereunder.
5. EXPENSES During the period of his employment, PETERSON will be reimbursed for
his reasonable and necessary expenses incurred by him pursuant to his engagement
hereunder, such expenses to include necessary travel and related costs incurred
in commuting to and from Tulsa, Oklahoma as well as lodging expenses while in
Philadelphia, Pennsylvania upon submission of appropriate receipts or vouchers
therefore.. All personal expenses of whatsoever kind or nature with respect to
commuting and staying in Philadelphia are to be defrayed and borne by PETERSON.
6. EMPLOYER'S AUTHORITY PETERSON agrees to observe and comply with the rules and
regulations of the CORPORATION as adopted by the CORPORATION'S Board of
Directors, either orally or in writing, respecting performance of his duties,
and to carry out and to perform orders, directions and policies stated by the
CORPORATION to him from time to time, either orally or in writing.
PETERSON will not make any commitments or purchases on behalf of the
CORPORATION, nor obligate the CORPORATION in any manner whatsoever, except at
those purchasing/approval levels delegated to the Chief Financial Officer by
Corporate policies approved by the Board of Directors.
7. TERMINATION This Agreement and PETERSON'S engagement hereunder shall be
terminated upon the happening of any of the following events:
(a) Whenever the CORPORATION and PETERSON shall mutually agree to
termination in writing;
(b) Upon the death of PETERSON;
(c) Peterson may, with written notice, terminate this Agreement at any
time after there has been a change in a majority of the membership
of the Board of Directors of the Corporation.
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(d) If PETERSON incurs a disability through physical or mental
incapacity which renders him incapable of performing the customary
duties of his employment for a period to exceed one (1) year. (Refer
to Section 8.)
(e) PETERSON gives ninety (90 days) written notice to the Corporation of
his intention to terminate this Agreement.
(f) PETERSON shall be terminable by the CORPORATION only for Cause. As
used in this Agreement, "Cause" shall be defined as follows:
(i) any breach by PETERSON of Sections of this Agreement relating to
confidential information, inventions, non-competition, non-solicitation of
clients, and non-solicitation of employees, respectively;
(ii) a failure or refusal by PETERSON to perform his duties set
forth in this Agreement or as reasonably assigned to him in the future by
the CEO or his designee;
(iii) any misappropriation of funds or other property of the
CORPORATION;
(iv) insubordination or dishonesty;
(v) conviction of PETERSON of a felony;
(vi) any intentional and willful conduct by PETERSON in his capacity
as a Chief Financial Officer of the CORPORATION which is injurious to the
CORPORATION; or
(vii) the continued inability of PETERSON to perform his duties by
reason of alcoholism or drug abuse.
Upon PETERSON'S resignation, death or termination of this Agreement for any of
the foregoing events or causes, PETERSON shall be entitled to receive any
compensation accrued but unpaid as of the date of termination, plus an
additional twelve (12) months compensation as severance pay to be paid on the
date of termination.
8. DISABILITY
(a) During a period of disability, the disabled PETERSON shall continue to
receive full compensation from the CORPORATION each month for the term of
such disability but not to exceed six (6) months; after the expiration of
said six (6) months period, PETERSON shall receive compensation at the
rate of fifty percent (50%) of his full compensation each Month for the
remaining term of such disability but not to exceed an additional six (6)
months; after the expiration of said one (1) year period, PETERSON shall
not be entitled to any
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additional compensation until the resumption of the normal duties of his
employment; provided, however, that if PETERSON is disabled as defined
herein, and thereafter resumes full time employment hereunder, and
thereafter becomes disabled again, any such resumed period of disability
shall, for the purpose of determining the percentage of full compensation
and duration of payment thereof to which PETERSON is then entitled, be
deemed a continuation of the prior period of disability unless a period of
at least six (6) continuous months of active full time employment elapsed
since the conclusion of the prior period of disability. Any amounts paid
hereunder to the disabled PETERSON shall be reduced by any disability
income insurance proceeds under any policies owned by or paid for by the
CORPORATION.
(b) Anything herein contained to the contrary notwithstanding, PETERSON
shall be conclusively deemed to be disabled within the meaning of this
Agreement during any period in which he received disability insurance
proceeds from an insurance carrier, the policies of which were owned or
paid for by the CORPORATION.
9. TRADE SECRETS AND NON-DISCLOSURE PETERSON hereby acknowledges that certain
trade secrets of the CORPORATION are valuable, special and unique assets of the
CORPORATION'S business. Such trade secrets include but are not limited to its
customer lists and the sources of its materials and products. PETERSON hereby
covenants that he will not, during or after the term of his employment, disclose
any of the foregoing secrets or any part thereof to any firm, person or
corporation or any entity for any reason or purpose whatsoever. In the event of
a breach or threatened breach by PETERSON of the provisions of this Paragraph,
the arbitration provisions of this Agreement to the contrary notwithstanding,
the CORPORATION shall be entitled to proceed in any court for an injunction
restraining PETERSON from disclosing, in whole or in part, any of the aforesaid
trade secrets, or from rendering such service to any person, firm, corporation,
association or any entity to whom such trade secrets, in whole or in part, have
been disclosed, or are threatened to be disclosed. Nothing herein contained
shall be construed as prohibiting the CORPORATION from pursuing any other
remedies for such breach or threatened breach, including the recovery of damages
from PETERSON and/or from proceeding pursuant to the arbitration provisions of
this Agreement.
10. NOTICES Any notices required or permitted to be given under this Agreement
shall be sufficient if in writing and if sent by registered or certified mail to
his residence in the case of PETERSON, or to the principal office of the
CORPORATION in the case of the CORPORATION.
11. ENTIRE AGREEMENT This instrument contains the entire agreement of the
parties. It may not be changed orally but only by an agreement in writing signed
by the party or parties against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
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12. ARBITRATION Any claim or controversy among or between the parties hereto
arising out of or pertaining to any matter contained in this Agreement, or any
difference as to the interpretation or performance of any of the provisions of
this Agreement shall be settled by arbitration in Philadelphia, PA, before three
(3) arbitrators of the American Arbitration Association under its then
prevailing rules. The arbitrators sitting in any such controversy shall not have
the authority or power to modify or alter any express condition or provision of
this Agreement, or any modification thereof, or to render any award which, by
its terms, has the effect of altering or modifying any express condition or
provision of this Agreement or modification thereof. No award may be made which
imposes liability contrary to the provisions hereof, or which is in excess of
specified measure of damages limiting claims against the parties hereto, and any
award in violation thereof shall be deemed a departure from the terms of the
submission, and shall be wholly void and unenforceable. It shall be a condition
precedent to the institution of said arbitration proceedings that the
proceedings be commenced within one (1) year from (i) the date the claim or
controversy arises; or (ii) the date of termination of your services or
employment, whichever is first to occur, and the failure to institute
arbitration proceeding within such period shall constitute an absolute bar to
the institution of any proceedings and a waiver of all claims. The award of the
arbitrators shall be final and binding, and judgment may be entered thereon in
any court of competent jurisdiction.
The parties consent to the jurisdiction of the State of Pennsylvania and the
United States District Court for the Eastern District of Pennsylvania for all
purposes in connection with arbitration, including the entry of judgment on any
award. The parties consent that any process or Notice of Motion or other
application to either of said courts, and any paper in connection with the
arbitration may be served by certified mail, return receipt requested, or by
personal service, or in such other manner as may be permissible under the rules
of the applicable court or arbitration tribunal provided a reasonable time for
appearance is allowed.
13. BINDING EFFECT This Agreement shall be binding upon and inure to the benefit
of the successors and assigns of the CORPORATION, and the heirs, representatives
and beneficiaries of PETERSON.
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14. PRIOR AGREEMENTS All prior engagement agreements between the parties
hereto are hereby revoked. However, the CORPORATION and PETERSON
acknowledge and recognize that PETERSON was initially engaged on a
part-time basis by the CORPORATION in 1989. This engagement was expanded
in 1993 when PETERSON agreed to devote more time to the CORPORATION as
Chief Financial Officer.
15. This Agreement was approved by the Corporation's Board of Directors on
June 23, 2004.
IN WITNESS WHEREOF, the parties hereto have set their respective hands and seals
as of the day and year first above written.
HEMISPHERX BIOPHARMA, INC.
By________________________________
WILLIAM A. CARTER
Chairman of the Board and Chief
Executive Officer
By________________________________
ROBERT E. PETERSON
An Individual
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