EXHIBIT 10.2
AGREEMENT
AGREEMENT made and entered into in New York, New York, by and between
Antigenics Inc. (the "Company"), a Delaware corporation with a principal place
of business at 630 Fifth Ave. Suite 2100 New York, NY, and Kerry Wentworth (the
"Executive"), effective as of the 20th day of February, 2007 (the "Effective
Date") (the "Agreement"). Words or phrases which are initially capitalized or
are within quotation marks shall have the meanings provided in Section 14 below
and as provided elsewhere herein.
WHEREAS, the operations of the Company and its Affiliates are a complex
matter requiring direction and leadership in a variety of arenas;
WHEREAS, the Executive is possessed of certain experience and expertise
that qualify him/her to provide the direction and leadership required by the
Company; and
WHEREAS, subject to the terms and conditions hereinafter set forth, the
Company therefore wishes to continue to employ the Executive and the Executive
wishes to continue such employment;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
promises, terms, provisions and conditions set forth in this Agreement, the
parties hereby agree:
1. Employment. Subject to the terms and conditions set forth in this
Agreement, the Company hereby offers and the Executive hereby accepts continued
employment.
2. Term. Subject to earlier termination as hereafter provided, this
Agreement shall have an original term of one year commencing on the Effective
Date hereof and shall be automatically extended thereafter for successive terms
of one year each, unless either party provides notice to the other at least
ninety (90) days prior to the expiration of the original or any extension term
this Agreement is not to be extended. The term of this Agreement, as from time
to time extended or renewed, is hereafter referred to as "Term".
3. Capacity and Performance.
(a) During the Term hereof, the Executive shall be employed by the
Company on a full-time basis and shall perform such duties and responsibilities
on behalf of the Company and its Affiliates as may be designated from time to
time consistent with his/her position. In addition, and without further
compensation, the Executive shall serve as a director and/or officer of one or
more of the Company's Affiliates if so elected or appointed from time to time.
(b) During the Term hereof, the Executive shall devote his/her best
efforts, business judgment, skill and knowledge to the advancement of the
business and interests of the Company and its Affiliates and to the discharge of
his/her duties and responsibilities hereunder. The Executive shall not engage in
any other business activity or serve in any industry, trade, professional,
governmental or academic position during the Term of this Agreement, except as
may be approved by the Board of Directors of the Company (the "Board") or its
designee.
4. Compensation and Benefits. As compensation for all services performed
by the Executive under and during the Term hereof and subject to performance of
the Executive's duties and of the obligations of the Executive to the Company
and its Affiliates, pursuant to this Agreement or otherwise:
(a) Base Salary. During the Term hereof, the Company shall pay the
Executive a minimum base salary at the rate of $220,000 per annum, payable in
accordance with the payroll practices of the Company for its executives and
subject to increase by the Board, in its sole discretion. Such base salary, as
from time to time increased, is hereafter referred to as the "Base Salary". The
Board shall review the Base Salary no less than annually.
(b) Incentive and Bonus Compensation. During the Term hereof, the
Executive shall be entitled to participate in the Company's Executive Incentive
Plan to the extent eligible and in accordance with the terms thereof, as such
terms may be modified or amended by the Company from time to time; provided,
however, that nothing contained herein shall obligate the Company to continue
such incentive compensation program. The Executive's target incentive bonus
under the Executive Incentive Plan is 35% of his/her Base Salary. Such target
may be modified by the Company from time to time, in its sole discretion. Any
compensation paid to the Executive under the Executive Incentive Plan shall be
in addition to the Base Salary.
(c) Stock Options. The Executive has been granted options to
purchase shares of common stock of the Company. At the discretion of the
Compensation Committee of the Board, the Executive may be granted additional
options to purchase shares of stock of the Company in the future. Any existing
or future grants, shall be governed by the terms of the applicable Company stock
option plan, as amended from time to time, and any stock option certificate,
stock option agreement, and other restrictions generally applicable to Company
stock options.
(d) Vacations. During the Term hereof, the Executive shall be
entitled to four weeks of vacation per annum, to be taken at such times and
intervals as shall be determined by the Executive, subject to the reasonable
business needs of the Company.
(e) Other Benefits. During the Term hereof and subject to any
contribution therefor generally required of employees (including executives) of
the Company, the Executive shall be entitled to participate in any and all
employee benefit plans from time to time in effect for employees of the Company
generally, except to the extent such plans are in a category of benefit
otherwise provided to the Executive. Such participation shall be subject to (i)
the terms of the applicable plan documents, (ii) generally applicable Company
policies and (iii) the discretion of the Board or any administrative or other
committee provided for in or contemplated by such plan. The Company may alter,
modify, add to or delete its employee benefit plans at any time as it, in its
sole judgment, determines to be appropriate, without recourse by the Executive.
(f) Business Expenses. The Company shall pay or reimburse the
Executive for all reasonable, customary and necessary business expenses incurred
or paid by the Executive in the performance of his/her duties and
responsibilities hereunder, subject to any maximum annual limit and other
restrictions on such expenses as set forth in the Company's Travel Policy
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as may be amended from time to time, and to such reasonable substantiation and
documentation as may be specified by the Company from time to time.
5. Termination of Employment and Severance Benefits. Notwithstanding the
provisions of Section 2 hereof, but subject to Section 6 hereof, the Executive's
employment hereunder shall terminate prior to the expiration of the Term under
the following circumstances:
(a) Death. In the event of the Executive's death during the Term
hereof, the Executive's employment hereunder shall immediately and automatically
terminate. In the event of the Executive's death during the Term hereof, the
Company shall pay to the Executive's designated beneficiary or, if no
beneficiary has been designated by the Executive, to his/her estate, any earned
and unpaid Base Salary and accrued but unused vacation through the date of
his/her death.
(b) Disability.
(i) The Company may terminate the Executive's employment
hereunder, upon notice to the Executive, in the event that the Executive
becomes disabled during his/her employment hereunder through any illness,
injury, accident or condition of either a physical or psychological nature
and, as a result, is unable to perform substantially all of his/her duties
and responsibilities hereunder, with or without a reasonable
accommodation, for ninety (90) days during any period of three hundred and
sixty-five (365) consecutive calendar days.
(ii) The Board may designate another employee to act in the
Executive's place during any period of the Executive's disability.
Notwithstanding any such designation, the Executive shall continue to
receive the Base Salary in accordance with Section 4(a) and benefits in
accordance with Section 4(e), to the extent permitted by the then-current
terms of the applicable benefit plans, until the Executive becomes
eligible for disability income benefits under the Company's disability
income plan or until the termination of his/her employment, whichever
shall first occur.
(iii) While receiving disability income payments under the
Company's disability income plan, the Executive shall not be entitled to
receive any Base Salary under Section 4(a) hereof, but shall continue to
participate in Company benefit plans in accordance with Section 4(e) and
the terms of such plans, until the termination of his/her employment.
(iv) If any question shall arise as to whether during any
period the Executive is disabled through any illness, injury, accident or
condition of either a physical or psychological nature so as to be unable
to perform substantially all of his/her duties and responsibilities
hereunder, the Executive may, and at the request of the Company shall,
submit to a medical examination by a physician selected by the Company to
whom the Executive or his/her duly appointed guardian, if any, has no
reasonable objection to determine whether the Executive is so disabled and
such determination shall for the purposes of this Agreement be conclusive
of the issue. If such question shall arise
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and the Executive shall fail to submit to such medical examination, the
Company's determination of the issue shall be binding on the Executive.
(v) In the event the Company terminates the Executive's
employment hereunder due to disability, the Company shall pay to the
Executive any accrued and unpaid Base Salary and accrued but unused
vacation through the date of termination.
(c) By the Company for Cause. The Company may terminate the
Executive's employment hereunder for Cause at any time upon fourteen (14) day
notice to the Executive setting forth in reasonable detail the nature of such
Cause. The following, as determined by the Company in its reasonable judgment,
shall constitute Cause for termination:
(i) The Executive's failure to perform (other than by reason
of disability), or negligence in the performance of, his/her duties and
responsibilities to the Company or any of its Affiliates; or
(ii) Material breach by the Executive of any provision of this
Agreement; or
(iii) Other conduct by the Executive that is materially
harmful to the business, interests or reputation of the Company or any of
its Affiliates.
Upon the giving of notice of termination of the Executive's employment
hereunder for Cause, the Company shall have no further obligation or liability
to the Executive, other than for Base Salary earned and unpaid and accrued
vacation earned but not taken at the date of termination.
(d) By the Company Other than for Cause. The Company may terminate
the Executive's employment with the Company other than for Cause at any time
upon notice to the Executive. In the event of such termination, the Company
shall either (i) pay the Executive the benefits payable under an executive
severance plan, if such a plan is in place on the date of termination and if the
Executive is eligible for such benefits under such a plan or, if the present
value to the Executive is greater, (ii) continue to pay the Executive his Base
Salary, at the rate in effect on the date of termination, until the conclusion
of a period of twelve (12) months following the date of termination. In
addition, the Company shall pay to the Executive in one lump sum an amount equal
to the higher of (x) the Executive's target incentive bonus under the Executive
Incentive Plan for the year in which the Executive's employment is terminated or
(y) the actual incentive bonus paid to the Executive, if any, under the
Executive Incentive Plan for the last full fiscal year preceding the year in
which the Executive's employment is terminated; and shall also, until the
conclusion of a period of twelve (12) months following the date of termination,
pay the full premium cost of the Executive's participation in the Company's
group medical and dental insurance plans, provided that the Executive is
entitled to continue such participation under applicable law and plan terms. The
Company will also provide the Executive with an outplacement assistance benefit
in the form of a lump-sum payment of $15,000 plus an additional lump-sum payment
in an amount sufficient, after giving effect to all federal, state and other
taxes with respect to such additional payment, to make Executive whole for all
taxes
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(including withholding taxes) on such outplacement assistance benefit.
Furthermore, at the sole discretion of the Compensation Committee of the Board,
any unvested options to purchase Company stock may be accelerated.
(e) By the Executive for Reduction in Salary or Benefits. The
Executive may terminate his/her employment hereunder based on a material
reduction in Base Salary or benefits due in accordance with the terms of this
Agreement ("Compensation Reduction"), provided that Executive provides notice to
the Company setting forth in reasonable detail the nature of such Compensation
Reduction, and provided further that the Company shall have thirty (30) days
from such notice to cure such reduction. In the event of termination in
accordance with this Section 5(e), the Company shall either (i) pay the
Executive the benefits payable under an executive severance plan, if such a plan
is in place on the date of termination and if the Executive is eligible for such
benefits under such a plan or, if the present value to the Executive is greater,
(ii) continue to pay the Executive his Base Salary, at the rate in effect on the
date of termination, until the conclusion of a period of twelve (12) months
following the date of termination. In addition, the Company shall pay to the
Executive in one lump sum an amount equal to the higher of (x) the Executive's
target incentive bonus under the Executive Incentive Plan for the year in which
the Executive's employment is terminated or (y) the actual incentive bonus paid
to the Executive, if any, under the Executive Incentive Plan for the last full
fiscal year preceding the year in which the Executive's employment is
terminated; and shall also, until the conclusion of a period of twelve (12)
months following the date of termination, pay the full premium cost of the
Executive's participation in the Company's group medical and dental insurance
plans, provided that the Executive is entitled to continue such participation
under applicable law and plan terms. The Company will also provide the Executive
with an outplacement assistance benefit in the form of a lump-sum payment of
$15,000 plus an additional lump-sum payment in an amount sufficient, after
giving effect to all federal, state and other taxes with respect to such
additional payment, to make Executive whole for all taxes (including withholding
taxes) on such outplacement assistance benefit. In addition, at the sole
discretion of the Compensation Committee of the Board, any unvested options to
purchase Company stock may be accelerated.
(f) By the Executive Other than for a Compensation Reduction. The
Executive may terminate his/her employment hereunder at any time upon sixty (60)
days' notice to the Company, unless such termination would violate any
obligation of the Executive to the Company under a separate severance agreement.
In the event of termination of the Executive pursuant to this Section 5(f), the
Board may elect to waive the period of notice, or any portion thereof, and, if
the Board so elects, the Company will pay the Executive his/her Base Salary for
the notice period (or for any remaining portion of the period).
(g) Upon a Change of Control.
(i) If a Change of Control occurs on the date of such Change
in Control, fifty-percent (50%) of any stock options previously granted to
the Executive that are outstanding and unvested as of that date shall
become vested and exercisable,
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provided that the Executive is employed by the Company on the date of such
Change in Control.
(ii) If a Change of Control occurs and within eighteen (18)
months following such Change of Control, the Company terminates the
Executive's employment other than for Cause, or the Executive terminates
his/her employment as a result of a Compensation Reduction or for Good
Reason (as defined herein), then, in lieu of any payments to or on behalf
of the Executive under Section 5(d) or 5(e) hereof, the Company shall pay
to the Executive in one lump sum an amount equal to (A) eighteen (18)
months Base Salary at the rate in effect on the date of termination, plus
(B) 150% of the higher of (x) the Executive's target incentive bonus under
the Executive Incentive Plan for the year in which the Executive's
employment is terminated or (y) the actual incentive bonus paid to the
Executive, if any, under the Executive Incentive Plan for the last full
fiscal year preceding the year in which the Executive's employment is
terminated; and shall also, until the conclusion of a period of eighteen
(18) months following the date of termination, pay the full premium cost
of the Executive's participation in the Company's group medical and dental
insurance plans, provided that the Executive is entitled to continue such
participation under applicable law and plan terms. In addition, any
outstanding unvested options granted to the Executive as of the date of
the Change in Control shall become vested and shall be exercisable for
ninety (90) days following termination of the Executive's employment. The
Company will also provide the Executive with an outplacement assistance
benefit in the form of a lump-sum payment of $15,000 plus an additional
lump-sum payment in an amount sufficient, after giving effect to all
federal, state and other taxes with respect to such additional payment, to
make Executive whole for all taxes (including withholding taxes) on such
outplacement assistance benefit.
(iii) All payments required to be made by the Company
hereunder to Executive or his/her dependents, beneficiaries, or estate
will be subject to the withholding of such amounts relating to tax and/or
other payroll deductions as may be required by law.
In the event that it is determined that any payment or benefit
provided by the Company to or for the benefit of Executive, either under
this Agreement or otherwise, will be subject to the excise tax imposed by
Section 4999 of the Internal Revenue Code or any successor provision(s)
("Section 4999"), the Company will, prior to the date on which any amount
of the excise tax must be paid or withheld, make an additional lump-sum
payment (the "Gross-up Payment") to Executive in an amount sufficient,
after giving effect to all federal, state and other taxes and charges
(including interest and penalties, if any) with respect to the gross-up
payment, to make Executive whole for all taxes (including withholding
taxes) and any associated interest and penalties, imposed under or as a
result of Section 4999.
Determinations under this Section 5(g)(iii) will be made by an
accounting firm engaged by the Company (the "Firm"). The determinations of
the Firm will be
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binding upon the Company and Executive except as the determinations are
established in resolution (including by settlement) of a controversy with
the Internal Revenue Service to have been incorrect. All fees and expenses
of the Firm will be paid by the Company.
If the Internal Revenue Service asserts a claim that, if
successful, would require the Company to make a Gross-up Payment or an
additional Gross-up Payment, the Company and Executive will cooperate
fully in resolving the controversy with the Internal Revenue Service. The
Company will make or advance such Gross-up Payments as are necessary to
prevent Executive from having to bear the cost of payments made to the
Internal Revenue Service in the course of, or as a result of, the
controversy. The Firm will determine the amount of such Gross-up Payments
or advances and will determine after final resolution of the controversy
whether any advances must be returned by Executive to the Company. The
Company will bear all expenses of the controversy and will gross Executive
up for any additional taxes that may be imposed upon Executive as a result
of its payment of such expenses.
(iv) For the purpose of this Section 5(g), a "Change in
Control" shall mean: (A) the acquisition by any Organization of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange
Act) of 50% or more of the common stock of the Company; provided, however,
that for purposes of this subsection (A), an acquisition shall not
constitute a Change in Control if it is: (x) by a Benefit Plan sponsored
or maintained by the Company or an entity controlled by the Company or (y)
by an entity pursuant to a transaction that complies with clauses (x), (y)
and (z) of subsection (C) of this Section 5(g)(iv); or (B) individuals
who, as of October 1, 2006, constitute the Board (the "Incumbent Board")
cease for any reason to constitute at least a majority of the Board;
provided, however, that any individual becoming a director subsequent to
October 1, 2006 whose election, or nomination for election by the
Company's stockholders, was approved by a vote of at least a majority of
the directors then comprising the Incumbent Board (or a majority of the
members of a nominating committee who are members of the Incumbent Board)
shall be treated as a member of the Incumbent Board unless he or she
assumed office as a result of an actual or threatened election contest
with respect to the election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of an
Organization other than the Board; or (C) consummation of a merger or
consolidation involving the Company, or a sale or other disposition of all
or substantially all of the assets of the Company, (a "transaction") in
each case unless, immediately following such transaction, (x) the
beneficial owners of the common stock of the Company outstanding
immediately prior to such transaction beneficially own, directly or
indirectly, more than 50% of the combined voting power of the outstanding
voting securities of the entity resulting from such transaction
(including, without limitation, an entity which as a result of such
transaction owns the Company or all or substantially all of the Company's
assets either directly or through one or more subsidiaries), (y) no
Organization (excluding any entity resulting from such transaction or any
Benefit Plan of the Company or such entity resulting from such
transaction) beneficially owns, directly or indirectly, 50% or more of the
combined voting power of the then outstanding voting securities of such
entity and (z)
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at least a majority of the members of the board of directors or similar
board of the entity resulting from such transaction were members of the
Incumbent Board at the time of the execution of the initial agreement, or
of the action of the Board, providing for such transaction; or (D)
approval by the stockholders of the Company of a complete liquidation or
dissolution of the Company. For purposes of the foregoing: "Benefit Plan"
means any employee benefit plan, including any related trust; "Board"
means the Board of Directors of the Company; "Exchange Act" means the
Securities Exchange Act of 1934, as amended; and "Organization" means any
individual, entity or group (within the meaning of Section 13(d)(3) or
Section 14(d)(2) of the Exchange Act).
(h) Effect of Failure to Renew by Company. In the event the Company
chooses not to renew the Term hereof, such failure to renew shall be treated as
a termination by the Company other than for "Cause" unless the Company gives
notice that the failure to renew is for "Cause" as defined in Section 5(c).
(i) To the extent any payment under Section 5 shall be required to
be delayed following separation from service to comply with the "specified
employee" rules of Section 409A of the Internal Revenue Code, it shall be
delayed (but not more than is required to comply with such rules).
6. Effect of Termination. The provisions of this Section 6 shall apply to
termination due to the expiration of the Term hereof, termination pursuant to
Section 5 or otherwise.
(a) Payment(s) by the Company and contributions to the cost of the
Executive's continued participation in the Company's group health and dental
plans that may be due to the Executive under Section 5 shall constitute the
entire obligation of the Company to the Executive. In order to receive any
payments or any other benefits under Section 5(d) or 5(e) or 5(g) or 5(h), the
Executive must first execute a General Release of Claims in a form acceptable to
the Company.
(b) Except for medical and dental insurance coverage continued
pursuant to Section 5(d) or 5(e) or 5(g) or 5(h) hereof, benefits shall
terminate pursuant to the terms of the applicable benefit plans based on the
date of termination of the Executive's employment without regard to any
continuation of Base Salary or other payment to the Executive following such
date of termination.
(c) Provisions of this Agreement shall survive any termination if so
provided herein or if necessary or desirable fully to accomplish the purposes of
such provision, including without limitation the obligations of the Executive
under Sections 7, 8, 9 and 13 hereof. The obligation of the Company to make
payments to or on behalf of the Executive under Section 5(d) or 5(e) or 5(g) or
5(h) hereof is expressly conditioned upon the Executive's continued full
performance of obligations under Sections 7, 8 and 9 hereof. The Executive
recognizes that, except as expressly provided in Section 5(d) or 5(e) or 5(g) or
5(h), no compensation is earned by, or in any way owing to, Executive after
termination of employment.
(d) Any lump-sum payments to be made to the Executive hereunder
shall be
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made as soon as administratively practicable and in any event no later than
2-1/2 months after the end of the year in which the Executive becomes entitled
to such payment.
(e) To the extent any payment hereunder shall be required to be
delayed until six months following separation from service to comply with the
"specified employee" rules of Section 409A of the Internal Revenue Code, it
shall be delayed (but not more than is required) to comply with such rules, and
shall promptly after such delay be paid with interest at a reasonable market
rate as determined by the Company.
7. Confidential Information.
(a) The Executive acknowledges that the Company and its Affiliates
continually develop Confidential Information, that the Executive may develop
Confidential Information for the Company or its Affiliates and that the
Executive may learn of Confidential Information during the course of employment.
The Executive will comply with the policies and procedures of the Company and
its Affiliates for protecting Confidential Information and shall never disclose
to any Person or to any governmental agency or political subdivision of any
government (except as required by applicable law or for the proper performance
of his/her duties and responsibilities to the Company and its Affiliates), or
use for his/her own benefit or gain, any Confidential Information obtained by
the Executive incident to his/her employment or other association with the
Company or any of its Affiliates. The Executive understands that the restriction
shall continue to apply after his/her employment terminates, regardless of the
reason for such termination.
(b) All documents, records, tapes and other media of every kind and
description relating to the business, present or otherwise, of the Company or
its Affiliates and any copies, in whole or in part, thereof (the "Documents"),
whether or not prepared by the Executive, shall be the sole and exclusive
property of the Company and its Affiliates. The Executive shall safeguard all
Documents and shall surrender to the Company at the time his/her employment
terminates, or at such earlier time or times as the Board or its designee may
specify, all Documents then in the Executive's possession or control.
(c) The Executive acknowledges and agrees that all Confidential
Information and proprietary materials that are provided by the Company to the
Executive under this Agreement are and shall remain the exclusive property of
the Company or the third party entrusting such Confidential Information or
proprietary materials to the Company.
8. Restricted Activities. The Executive agrees that some restrictions on
his/her activities during and after his/her employment are necessary to protect
the goodwill, Confidential Information and other legitimate interests of the
Company and its Affiliates:
(a) While the Executive is employed by the Company and for the
greater of (i) twelve (12) months after his/her employment terminates or (ii)
the period during which the Executive is receiving payments under Section 5(d)
or 5(e) or 5(g) or 5(h) (the "Non-Competition Period"), the Executive shall not,
directly or indirectly, whether as owner, partner, investor, consultant, agent,
employee, co-venturer or otherwise, compete with the Company or
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any of its Affiliates or undertake any planning for any business competitive
with the Company or any of its Affiliates. Specifically, but without limiting
the foregoing, the Executive agrees not to engage in any manner in any activity
that is directly or indirectly competitive with the business of the Company or
any of its Affiliates as conducted or under consideration at any time during the
Executive's employment. Restricted activity includes without limitation
accepting employment or a consulting position with any Person who is, or at any
time within twelve (12) months prior to the termination of the Executive's
employment has been, a competitor or a customer of the Company or any of its
Affiliates. For the purposes of this Section 8, the business of the Company and
its Affiliates shall include all Products and the Executive's undertaking shall
encompass all items, products and services that may be used in substitution for
Products. The foregoing shall not prohibit the Executive's passive ownership of
two percent (2%) or less of the equity securities of any publicly traded
company.
(b) The Executive agrees that, during his/her employment with the
Company or any Affiliate of the Company, he/she will not undertake any outside
activity, whether or not competitive with the business of the Company or its
Affiliates, that could reasonably give rise to a conflict of interest or
otherwise interfere with his/her duties and obligations to the Company or any of
its Affiliates.
(c) The Executive further agrees that while he/she is employed by
the Company or any Affiliate of the Company and thereafter during the
Non-Competition Period, the Executive will not hire or attempt to hire any
employee of the Company or any of its Affiliates, assist in such hiring by any
Person, encourage any such employee to terminate his/her or her relationship
with the Company or any of its Affiliates or solicit or encourage any customer
or vendor of the Company or any of its Affiliates to terminate its relationship
with them, or, in the case of a customer, to conduct with any Person any
business or activity which such customer conducts or could conduct with the
Company or any of its Affiliates.
9. Assignment of Rights to Intellectual Property. The Executive shall
promptly and fully disclose, if he/she has not done so already, all Intellectual
Property to the Company. The Executive shall maintain adequate records (whether
written, electronic, or otherwise) to document the Intellectual Property,
including without limitation the conception and reduction to practice of all
inventions, and shall make such records available to the Company upon request.
The Company shall have sole ownership of all Intellectual Property and all such
records with respect thereto. The Executive hereby assigns, conveys, and grants
to the Company (or as otherwise directed by the Company), and agrees to assign,
convey and grant to the Company (or as otherwise directed by the Company), all
of his/her right, title, and interest in and to the Intellectual Property and
any and all patents, patent applications, and copyrights relating to the
Intellectual Property. The Executive agrees to execute any and all applications
for domestic and foreign patents, copyrights or other proprietary rights and to
do such other acts (including without limitation the execution and delivery of
instruments of further assurance or confirmation) requested by the Company to
assign the Intellectual Property to the Company and to permit the Company to
enforce any patents, copyrights or other proprietary rights to the Intellectual
Property. The Executive will not charge the Company for time spent in complying
with these obligations. All copyrightable works that the Executive creates shall
be considered
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"work made for hire".
The Executive recognizes that the protection of the Intellectual Property of the
Company against unauthorized disclosure and use is of critical importance to the
Company, and therefore, the Executive agrees to use his/her best efforts and
exercise utmost diligence to protect and safeguard the Intellectual Property of
the Company and its Affiliates, if any, and, except as may be expressly required
by the Company in connection with the Executive's performance of his/her
obligations to the Company under this Agreement, the Executive shall not, either
during the Term of this Agreement or thereafter, directly or indirectly, use for
his/her own benefit or for the benefit of another, or disclose to another, any
of such Intellectual Property.
10. Notification Requirement. Until the conclusion of the Non-Competition
Period the Executive shall give notice to the Company of each new business
activity he/she plans to undertake, at least twenty-one (21) days prior to
beginning any such activity. Such notice shall state the name and address of the
Person for whom such activity is undertaken and the nature of the Executive's
business relationship(s) and position(s) with such Person. The Executive shall
provide the Company with such other pertinent information concerning such
business activity as the Company may reasonably request in order to determine
the Executive's continued compliance with his/her obligations under Sections 7,
8 and 9 hereof.
11. Enforcement of Covenants. The Executive acknowledges that he/she has
carefully read and considered all the terms and conditions of this Agreement,
including the restraints imposed upon him/her pursuant to Sections 7 and 8
hereof. The Executive agrees that said restraints are necessary for the
reasonable and proper protection of the Company and its Affiliates and that each
and every one of the restraints is reasonable in respect to subject matter,
length of time and geographic area. The Executive further acknowledges that,
were he/she to breach any of the covenants contained in Sections 7 or 8 hereof,
the damage to the Company would be irreparable. The Executive therefore agrees
that the Company, in addition to any other remedies available to it, shall be
entitled to preliminary and permanent injunctive relief against any breach or
threatened breach by the Executive of any of said covenants, without having to
post bond. The parties further agree that, in the event that any provision of
Section 7 or 8 hereof shall be determined by any court of competent jurisdiction
to be unenforceable by reason of its being extended over too great a time, too
large a geographic area or too great a range of activities, such provision shall
be deemed to be modified to permit its enforcement to the maximum extent
permitted by law.
12. Conflicting Agreements. The Executive hereby represents and warrants
that the execution of this Agreement and the performance of his/her obligations
hereunder will not breach or be in conflict with any other agreement to which
the Executive is a party or is bound and that the Executive is not now subject
to any covenants against competition or similar covenants that would affect the
performance of his/her obligations hereunder. The Executive will not disclose to
or use on behalf of the Company any proprietary information of a third party
without such party's consent.
13. Indemnification. The Company shall indemnify the Executive to the
extent
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provided in its then current Articles or By-Laws. The Executive agrees to
promptly notify the Company of any actual or threatened claim arising out of or
as a result of his/her employment with the Company.
14. Definitions. For purposes of this Agreement, the following definitions
apply:
(a) "Affiliates" means all persons and entities directly or
indirectly controlling, controlled by or under common control with the Company,
where control may be by either management authority or equity interest.
(b) "Confidential Information" means any and all information of the
Company and its Affiliates that is not generally known by others. Confidential
Information includes without limitation such information relating to (i) the
development, research, testing, manufacturing, marketing and financial
activities of the Company and its Affiliates, (ii) the Products, (iii) the
costs, sources of supply, financial performance and strategic plans of the
Company and its Affiliates, (iv) the identity and special needs of the customers
of the Company and its Affiliates and (v) the people and organizations with whom
the Company and its Affiliates have business relationships and those
relationships. Confidential Information also includes comparable information
that the Company or any of its Affiliates have received belonging to others or
which was received by the Company or any of its Affiliates with any
understanding that it would not be disclosed.
(c) "Good Reason" means: (i) the relocation of the Executive's
principal office, without his/her prior consent, to a location more than thirty
(30) miles from its location on the day prior to the Change in Control; (ii)
failure of the Company to continue the Executive in the position held
immediately prior to the Change of Control; or (iii) material and substantial
diminution in the nature or scope of the Executive's responsibilities, duties or
authority; however, the Company's failure to continue the Executive's
appointment or election as a director or officer of any of its Affiliates and
any diminution of the business of the Company or any of its Affiliates,
including without limitation the sale or transfer of any or all of the assets of
the Company or any of its Affiliates, shall not constitute "Good Reason".
(d) "Intellectual Property" means inventions, discoveries,
developments, methods, processes, compositions, works, concepts and ideas
(whether or not patentable or copyrightable or constituting trade secrets)
conceived, made, created, developed or reduced to practice by the Executive
(whether alone or with others, whether or not during normal business hours or on
or off Company premises) during the Executive's employment and during the period
of twelve (12) months immediately following termination of his/her employment
that relate to either the Products or any prospective activity of the Company or
any of its Affiliates.
(e) "Person" means an individual, a corporation, an association, a
partnership, an estate, a trust and any other entity or organization, other than
the Company or any of its Affiliates.
(f) "Products" mean all products planned, researched, developed,
under development, tested, manufactured, sold, licensed, leased or otherwise
distributed or put into use
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by the Company or any of its Affiliates, together with all services provided or
planned by the Company or any of its Affiliates, during the Executive's
employment.
15. Withholding. All payments made by the Company under this Agreement
shall be reduced by any tax or other amounts required to be withheld by the
Company under applicable law.
16. Assignment. Neither the Company nor the Executive may make any
assignment of this Agreement or any interest herein, by operation of law or
otherwise, without the prior written consent of the other; provided, however,
that the Company may assign its rights and obligations under this Agreement
without the consent of the Executive in the event that the Company shall
hereafter affect a reorganization, consolidate with, or merge into, any other
Person or transfer all or substantially all of its properties or assets to any
other Person. This Agreement shall inure to the benefit of and be binding upon
the Company and the Executive, their respective successors, executors,
administrators, heirs and permitted assigns.
17. Severability. If any portion or provision of this Agreement shall to
any extent be declared illegal or unenforceable by a court of competent
jurisdiction, then the remainder of this Agreement, or the application of such
portion or provision in circumstances other than those as to which it is so
declared illegal or unenforceable, shall not be affected thereby, and each
portion and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
18. Waiver. No waiver of any provision hereof shall be effective unless
made in writing and signed by the waiving party. The failure of either party to
require the performance of any term or obligation of this Agreement, or the
waiver by either party of any breach of this Agreement, shall not prevent any
subsequent enforcement of such term or obligation or be deemed a waiver of any
subsequent breach.
19. Notices. Any and all notices, requests, demands and other
communications provided for by this Agreement shall be in writing and shall be
effective when delivered in person or deposited in the United States mail,
postage prepaid, registered or certified, and addressed to the Executive at
his/her last known personal address on the books of the Company or, in the case
of the Company, at its principal place of business, attention of Senior
Attorney, or to such other address as either party may specify by notice to the
other actually received.
20. Entire Agreement. This Agreement constitutes the entire agreement
between the parties and supersedes all prior communications, agreements and
understandings, written or oral, with respect to the terms and conditions of the
Executive's employment, excluding any obligations with respect to the securities
of the Company or the grant of any stock options and the Employee Nondisclosure
Agreement dated October 14, 2003 by and between the Executive and the Company
(the "Nondisclosure Agreement").
21. Amendment. This Agreement may be amended or modified only by a written
instrument signed by the Executive and by an expressly authorized representative
of the Company.
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22. Headings. The headings and captions in this Agreement are for
convenience only and in no way define or describe the scope or content of any
provision of this Agreement.
23. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be an original and all of which together shall
constitute one and the same instrument.
24. Governing Law. This is a contract and shall be construed and enforced
under and be governed in all respects by the laws of the Commonwealth of
Massachusetts, without regard to the conflict of laws principles thereof.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, this Agreement has been executed as a sealed
instrument by the Company, by its duly authorized representative, and by the
Executive, as of the date first above written.
THE EXECUTIVE: ANTIGENICS INC., a Delaware corporation
/s/ Kerry Wentworth By: /s/ Garo H. Armen
- ---------------------------- -----------------------------------
Kerry Wentworth
Name: Garo H. Armen
Title: Chairman and CEO
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