EXHIBIT 99.1
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Agreement made as of the 8th day of July, 1998, by and between
ADVANCED VIRAL RESEARCH CORP., a Delaware corporation, with offices located at
1250 East Hallandale Beach Blvd., Hallandale, FL 33009, (the "Corporation") and
DR. SHALOM Z. HIRSCHMAN, with an address at 5240 Blackstone Avenue, Riverdale,
New York 10471 (the "Employee"):
W I T N E S E T H:
PREAMBLE
A. After serving as a part time Consultant to the Corporation, the employee
entered into an Employment Agreement dated October 14, 1996 with the Corporation
(the "Original Employment Agreement") and the parties have been governed thereby
until the date hereof.
B. By this amended and restated employment agreement (the "Agreement") the
parties intend to amend, modify and extend the Original Employment Agreement;
from thereafter the date hereof, the relationship of the Corporation and the
employee will be governed solely by the provisions of this Agreement which shall
supersede in its entirely the Original Employment Agreement, such document
becoming of no further force and effect.
NOW THEREFORE it is agreed as follows:
1. DUTIES OF EMPLOYEE AND CORPORATION:
a) The Employee is hereby employed by the Corporation to serve in
the capacity of Chief Executive Officer and President. The Corporation shall
cause Employee to be nominated to serve as a director of the Corporation for the
duration of his term of employment as set forth herein, and any extension or
amendment of this Agreement.
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b) During the term of the Agreement, Dr. Bernard Friedland and William
Bregman agree that they shall vote all shares owned or voted by them in favor of
Employee as a member of the Board of Directors of the Corporation. This
agreement by Dr. Friedland and Mr. Bregman shall not restrict or otherwise limit
their right to sell or otherwise transfer their shares to third parties without
restriction; provided, however, that any such purchaser or other transferee in a
private transaction or series of transactions involving five percent (5%) or
more of the then outstanding shares of the Corporation shall continue to be
bound by the provisions of this subparagraph 1(b).
During the term of the Agreement, Employee shall vote all shares owned
or voted by him in favor of Bernard Friedland and William Bregman, and each of
them, as a member of the Board of Directors of the Corporation for such period
of time as each such person seeks to serve. This agreement by Employee shall not
restrict or otherwise limit his right to sell or otherwise transfer his shares
(or options to purchase shares, as the case may be) to third parties; provided,
however, that any such purchaser or other transferee of shares in a private
transaction or series of transactions involving 5% or more of the outstanding
shares of the Corporation shall continue to be bound by the provisions of this
Subparagraph 1(b).
c) In addition to the foregoing duties, Employee shall also serve as
the Corporation's Chief Scientific Officer and Chairman of its Scientific
Advisory Board. When the Corporation reaches an appropriate state of maturity,
Employee will use his best efforts to constitute a Scientific Advisory Board
with the most suitable available persons in exercise of his discretion from time
to time. His suggested appointments to the Scientific Advisory Board will be
subject to approval of the Board of Directors, which approval will not be
unreasonably withheld.
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d) It is expressly agreed by the parties that the duties of the
Employee, in his capacity as Chief Executive Officer, President and a director
of the Corporation shall include supervising day to day operations of the
Corporation, including management of scientific, medical, financial, regulatory
and corporate matters, subject always to existing Board policy.
e) It is expressly agreed that Employee's duties shall also include
the authority to establish an appropriate laboratory, executive and other
facilities for the Corporation, consistent with its business goals and
objectives, as well as its financial resources. The Employee is also authorized
and directed by this Agreement to lead the Corporation's efforts to raise
additional capital by means consistent with and appropriate to the Corporation's
objectives, as determined from time to time by its Board of Directors. Nothing
contained herein shall require Employee to relocate outside of the New York
metropolitan area.
f) During the term of this Agreement, Employee shall take no action
which shall preclude Bernard Friedland and William Bregman from being nominees
as directors of the Corporation and Employee shall vote all shares owned or
voted by him in favor of Bernard Friedland and William Bregman as members of the
Board of Directors of the Corporation.
2. DEVOTION OF TIME TO EMPLOYMENT: The Employee shall devote his full
business time and attention to the business and affairs of the Corporation as
shall be necessary to carry out his duties hereinabove, and as may be amended
from time to time consistent with the Corporation's business development.
3. COMPENSATION AND BENEFITS:
a) The Corporation shall pay to the Employee as compensation for his
services an annual salary at $325,000 per year, payable in biweekly installments
commencing October 18, 1996.
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b) The Corporation, during the term of this Agreement only, shall
purchase, at its expense, a major medical insurance policy, disability policy
and dental policy insuring the Employee and his dependents, which policy shall
be reasonably acceptable to the parties hereto. The Corporation shall also
purchase a term life insurance policy at least in the amount of $1,000,000, with
a beneficiary to be designated by the Employee, and Employee shall cooperate
with the Corporation to purchase a "key man" life insurance policy, with the
Corporation as beneficiary.
c) The Corporation agrees that, in addition to presently outstanding
Options granted to Employee, it shall take such action as may be necessary to
permit Employee to be entitled to participate in stock option or stock bonus
plans or similar plans including plans for stock appreciation rights (SAR's) as
are established by the Corporation (collectively, the "Stock Plans").
d) Upon execution of this Agreement, the Company will take such action
as is necessary to issue to the Employee previously approved options to purchase
23 million shares of its common stock at an exercise price of $0.27 per share.
The term of the options would be for a period of 10 years from the date of
issuance (or 90 days after the Employee terminates his employment or the
employment of the Employee is terminated for cause (as such term is hereinafter
defined)). The options granted pursuant to this subparagraph will vest on the
first to occur of (i) the day an IND number is obtained from and approved by the
United States FDA so that human research can be commenced, (ii) the occurrence
of a Change of control (as hereinafter defined), or (iii) the signing of an
agreement relating to co-marketing pursuant to which one or more third parties
commit to make payments to the Company and/or its subsidiaries of $15,000,000 or
more (each of the foregoing is hereinafter referred to as a "Vesting Event").
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For purposes of this subparagraph (d), the term "Change of Control"
means the occurrence of any of the following: (A) the consummation of any
transaction the result of which is that any person or group (as such term is
used in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended),
other than the Employee, Bernard Friedland or William Bregman or any affiliate
thereof or any group comprised of any of the foregoing, owns, directly or
indirectly, 51% of the Common Equity (as hereinafter defined) of the Company,
(B) the Company consolidates with, or merges with or into, another person (other
than a direct or indirect wholly-owned subsidiary) or any person consolidates
with, or merges with or into, the Company, in any such event pursuant to a
transaction in which the outstanding Voting Stock (as hereinafter defined) of
the Company, as the case may be, is converted into or changed for cash,
securities or other property, other than any such transaction where the
outstanding Voting Stock of the Company, as the case may be, is converted into
or exchanged for Voting Stock of the surviving or transferee corporation and the
beneficial owners of the Voting Stock of the Company immediately prior to such
transaction own, directly or indirectly, not less than a majority of the Voting
Stock of the surviving or transferee corporation immediately after such
transaction, (C) the Company, either individually or in conjunction with one or
more subsidiaries sells, assigns, conveys, transfers, leases or otherwise
disposes of, or the subsidiaries sell, assign, convey, transfer, lease or
otherwise dispose of, all or substantially all of the properties and assets of
the Company and its subsidiaries, taken as a whole (either in one transaction or
a series of related transactions), including capital stock of the subsidiaries,
to any person (other than the Company or a wholly owned subsidiary of the
Company), or (D) during any two (2) year period commencing subsequent to the
date of this Agreement, individuals who at the beginning of such period
constituted the Board of Directors of the Company (together with any new
directors whose election by such Board of Directors or whose nomination for
election by the stockholders of
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the Company was approved by a vote of two-thirds of the directors then still in
office) who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved cease for any
reason to constitute a majority of the Board of Directors then in office;
provided, however, that a person shall not be deemed to have ceased being a
director for such purpose if such person shall have resigned or died. For
purposes of this subparagraph 3(d)(i), (x) the term "Common Equity" of the
Company means all capital stock of the Company that is generally entitled to
vote in the election of directors and (ii) the term "Voting Stock" of the
Company mean securities of any class of capital stock of the Company entitling
the holders thereof to vote in the election of members of the Board of Directors
of the Company.
e) All other option agreements between the Company and the Employee
which currently are in existence will be amended to increase the terms thereof
so that they will be co-extensive with the term of the options granted pursuant
to subparagraph (d) hereof.
f) The Employee shall receive a one-time bonus of $100,000 upon the
occurrence of the first Vesting Event, if such Vesting Event shall occur during
the term of this Agreement.
g) Commencing in December 1998, and annually thereafter, the Board of
Directors of the Company shall evaluate its performance during the year, both
scientifically and financially (including its aggregate market capitalization),
and the contribution of the Employee with respect to such performance. Based
upon such evaluations, the Board of Directors shall consider and take
appropriate action with respect to granting a performance bonus to the Employee
if it determines that a bonus is warranted.
4. TERMS OF AGREEMENT: Subject to the provisions of paragraph 10
hereof regarding termination, the term of this employment shall commence on the
date first set forth above,
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and shall continue until December 31, 2000. It shall automatically be extended
for consecutive periods of one-year each unless either the Company or the
Employee shall have given notice to the other at least two years in advance that
such automatic extension shall be vitiated; it is intended hereby that except as
provided at paragraph 10 hereby at least two years notice shall be given from
one party to the other of the termination of the arrangement created herein.
5. AUTOMOBILE: The Corporation shall lease or purchase for the Employee,
at Employee's discretion, an automobile selected and to be used by Employee,
having a list price not in excess of $40,000, it being understood and agreed
that such automobile shall be necessary by Employee in the conduct of the
Corporation's business as a condition of his employment. The Corporation shall
pay for all gas, oil, repairs and maintenance, as well as the lease or purchase
payments, as applicable.
6. REIMBURSABLE EXPENSES: Except as herein otherwise provided, the
Corporation shall reimburse the Employee for all expenses, or the Employee is
entitled to charge to the Corporation all expenses incurred by him, in and about
the course of his employment by the Corporation, provided that said expenses are
deductible under the current tax law and sufficient proof is furnished by
Employee. Such expenses shall include but not be limited to:
a) License fees, membership dues in professional organizations, and
subscriptions to professional journals.
b) The Employee's necessary travel, hotel and entertainment expenses
incurred in connection with overnight, out-of-town trips for educational,
professional, financial, or other related meetings, and/or in connection with
other events that contribute to the benefit of the Corporation in the reasonable
determination of the Employee.
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c) The Employee's necessary travel and entertainment expenses in
connection with in-town events for education, professional, financial, or other
related meetings or in connection with other events that contribute to the
benefit of the Corporation in the reasonable determination of the Employee.
d) All other expenses that may be pre-approved by the Board of
Directors.
7. VACATION: The Employee shall be entitled to such vacation as shall be
authorized by the Corporation from time to time, but not less than four (4)
weeks during each calendar year.
8. SICK OR OTHER LEAVE: If the Employee becomes so disabled as to be
unable to perform his functions hereof, he shall be entitled to disability leave
for a period of at least [4] consecutive months or [6] months in any 12 month
period. At the expiration of any such period of disability, either party shall
have the right to terminate the Employment arrangement created hereby as if it
had expired in the normal course; provided, however, that such event of
disability shall not be deemed to have caused a premature expiration of any
options theretofore granted to the Employee.
9. PATENTS: The parties agree that if any patents shall be developed by
Employee or any patents shall result from the knowledge Employee acquires while
performing his duties to the Corporation under this Agreement, Employee agrees
to assign such patents to the Corporation.
10. TERMINATION OF AGREEMENT:
a) The Corporation may terminate this Agreement at any time "for
cause" if: the Employee becomes unfit to properly render services to Corporation
hereunder because of alcohol or drug related abuses, as defined under and is
consistent with applicable laws; conviction of a crime or moral turpitude that
constitutes a felony under federal or state law; material breach of
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this Agreement which is not cured within sixty (60) days after written notice is
given by Corporation to Employee. Such termination except for material breach
shall be effective sixty (60) days after the delivery of written notice thereof
to the Employee, or at such later time as may be designated in said notice. The
Employee shall vacate the offices of the Corporation on or before such effective
date unless such termination for cause may be subject to cure by Employee. All
compensation due hereunder shall cease as of said effective date of the
termination, except accrued compensation that shall remain unpaid at such date,
and except for the continued right of Employee to exercise stock options, or
receive benefits under stock bonus plans or SAR's (collectively, the "Stock
Rights") as shall not be vested at the date of any termination hereunder,
subject to the discretion of the Board of Directors to cancel such Stock Rights.
b) (i) The Employee may elect to terminate this Agreement at any time
for cause provided he delivers written notice of such intention to terminate not
less than sixty (60) days prior to the date of such termination. As used in this
subparagraph 10(b)(i), the term "for cause" shall mean if Corporation materially
changes Employee's duties, responsibilities or working conditions or takes any
other actions which impede Employee in the performance of his duties hereunder.
If the Employee terminates this Agreement for cause, Corporation shall be
required to pay Employee the compensation, remuneration, benefits and allowance
and expenses specified in paragraphs 3, 5, 6 and 7 hereinabove for the remainder
of the term of this Agreement.
(ii) The Employee may elect to terminate this Agreement at any
time not for cause provided he delivers written notice of such intention to
terminate not less than sixty (60) days prior to the date of such termination.
All compensation and other benefits shall cease as of the effective date
specified in such notice.
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11. LIMITATIONS ON AUTHORITY: Without the express written consent from the
Board of Directors of the Corporation, and other than in the ordinary course of
business, the Employee shall have not apparent or implied authority to:
a) Pledge the credit of the Corporation or any of its other employees.
b) Bind the Corporation under any note, mortgage or other monetary
obligation under a monetary instrument.
c) Release or discharge any debt due the Corporation unless the
Corporation has received the full amount thereof.
d) Sell, mortgage, transfer or otherwise dispose of all or
substantially all of the assets of the Corporation.
12. COVENANT NOT TO COMPETE AND CONFIDENTIALITY:
a) In order to induce the Corporation to enter into an employment
relationship, but if and only if this Agreement is terminated by Corporation for
cause as specified in paragraph 10(a) or by Employee without cause as specified
in paragraph 10(b)(ii) and under no other circumstance, Employee covenants and
agrees for a period of three (3) years after termination of Employee's
employment, Employee will not directly or indirectly, as sole proprietor,
independent contractor, employee, consultant, agent, partner or joint venturer,
or as an officer, director, stockholder, agent, servant or employee of any firm,
person, entity, partnership or corporation, or otherwise, engage or participate
in or attempt to engage or participate in any manner in the same, a similar or a
directly or indirectly competitive business, to that of Corporation.
b) If and only if this Agreement is terminated by Corporation for
cause as specified in paragraph 10(a) or by Employee without cause as specified
in paragraph 10(b)(ii) and under no other circumstance, for a period of one (1)
year from and after the termination of
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Employee's employment, the Employee agrees that he shall refrain from soliciting
and shall not, directly or indirectly, as sole proprietor, independent
contractor, employee, consultant, agent, partner, or joint venturer, or as an
officer, director, stockholder, agent or employee of any firm, person, entity,
partnership or corporation, or otherwise solicit the employees of the
Corporation to leave the service of Corporation.
c) The parties agree that all information concerning the Corporation's
product, RETICULOSE, is highly confidential and is the sole and exclusive
property of the Corporation. The parties acknowledge that Employee shall have
access to confidential information concerning the Corporation and specifically
concerning RETICULOSE, including methodology of manufacture of RETICULOSE, among
other confidential data and information. Employee expressly agrees to refrain
from disclosing to any person or entity, other than at the direction and
approval of the Board of Directors, any confidential information regarding
RETICULOSE, either directly or indirectly, or seek to exploit RETICULOSE, other
than through and with the approval of the Corporation.
d) (i) It is agreed and understood by and among the parties to this
Agreement that the restrictive covenants and agreements set forth in
subparagraphs (a), (b) and (c) of this paragraph 12 are each individually
essential elements of this Agreement and that, but for agreement of the Employee
to comply with such covenants and agreements, the Corporation would not have
agreed to employ Employee. Further, Employee expressly acknowledges that the
restrictions contained in subparagraphs (a), (b) and (c) of this paragraph 12
are reasonable and necessary to accomplish the mutual objectives of the parties
associated with the employment relationship and to protect the Corporation's
legitimate interests and protecting its business and business relationships.
Employee further acknowledges that enforcement of the restrictions
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contained herein will not deprive him, or any of his agents, servants or
employees, or any of them, of the ability to earn a reasonable living and that
any violation of the restrictions contained in this Agreement will cause
irreparable injury to Corporation. Such covenants and agreements of the Employee
shall be construed as agreements independent of any other provision of this
Agreement and of each other. The existence of any claim or cause of action of
the Employee against the Corporation, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the Corporation
of such restrictive covenants and agreements.
(ii) It is agreed by the parties hereto that if any portion of the
restrictive covenants and agreements set forth in subparagraphs (a), (b) and (c)
of this paragraph 12 are held to be invalid, unreasonable, arbitrary or against
public policy, then each such agreement shall be considered divisible both as to
time, geographical area and any other relevant feature, with each month of a
specified period being deemed a separate period of time and each geographical
market area being deemed a separate geographical area, it being the intention of
the parties that a lesser period of time, geographical area or other relevant
feature shall be enforced as long as the same is not unreasonable, arbitrary or
against public policy. The parties hereto further agree that, in the event any
court of competent jurisdiction determines that a specified time period, a
specified geographical area or any other relevant feature is unreasonable,
arbitrary or against public policy, a lesser time period, geographical area or
other relevant feature which is determined to be reasonable, non-arbitrary and
not against public policy may be enforced against the Employee and Employee
agrees to be bound thereby.
(iii) The parties hereto agree that damages at law, including but
not limited to monetary damages, will be insufficient remedy to the Corporation
in the event that the restrictive covenants of subparagraphs (a), (b) and (c) of
this paragraph 12 are violated and that, in
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addition to any remedies or rights that may be available to the Corporation, all
of which other remedies or rights shall be deemed to be cumulative, retained by
Corporation and not waived by the enforcement of any remedy available hereunder,
including but not limited to the right to sue of monetary damages; Corporation
also shall be entitled, upon application to a court of competent jurisdiction,
to obtain injunctive relief, including but not limited to a temporary
restraining order or temporary, preliminary or permanent injunction, to enforce
the provisions of this paragraph as well as an equitable accounting of all
profits or benefits arising out of any such violation, all of which shall
constitute rights and remedies to which the Corporation may be entitled.
e) Employee recognizes that the restrictions set forth in this
paragraph are reasonable and properly required for the adequate protection of
the business of the Corporation.
13. SURVIVAL OF REPRESENTATIONS AND WARRANTIES: The warranties,
representations, covenants and agreements set forth herein shall be continuous
and shall survive the termination of this Agreement or any part hereof.
14. ENTIRE AGREEMENT: This Agreement contains the entire understanding
between the parties hereto with respect to the transactions contemplated hereby,
and this Agreement supersedes in all respects all written or oral understandings
and agreements heretofore existing between the parties hereto.
15. AMENDMENT AND WAIVER: This Agreement may not be modified or amended
except by an instrument on writing duly executed by the parties hereto. No
waiver of compliance with any provision or condition hereof and no consent
provided for herein shall be effective unless evidenced by an instrument in
writing duly executed by the party hereto sought to be charged with such waiver
or consent.
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16. NOTICES: Notices and requests required or permitted hereunder shall be
deemed to be delivered hereunder if mailed with postage prepaid or delivered, in
writing as follows:
If to the Corporation: 1250 East Hallandale Beach Boulevard,
Hallandale, Florida 33009 or such other address as the Corporation shall
designate in writing.
If to Employee: 5240 Blackstone Avenue, Riverdale, New York 10471.
17. COUNTERPARTS: This Agreement may be executed in one or more
counterparts, and all such counterparts shall constitute one and the same
instrument.
18. CAPTIONS: Captions used herein are for convenience only and are not a
part of this Agreement and shall not be used in construing it.
19. EXECUTION OF DOCUMENTS: At any time and from time to time, the parties
hereto shall execute such documents as are necessary to effect this Agreement.
20. ARBITRATION: Any controversy or claim arising out of or relating to
this Agreement, or the breach thereof, or regarding the failure or refusal to
perform the whole or any part of this Agreement shall be settled by arbitration.
In the event that the Arbitration is initiated by the Employee, it shall be
commenced in Dade County, Florida, or in such other County and State of
jurisdiction as the Corporation shall then have its corporate headquarters. In
the event the arbitration is initiated by the Corporation, it shall be commenced
in New York City. Any such arbitration shall be held in accordance with the
rules of the American Arbitration, and the judgment upon the award rendered may
be entered in any court having jurisdiction hereof. Any decision made by an
arbitrator or by the arbitrators under this provision shall be enforceable as a
final and binding decision as if it were a final decision or decree of a court
of competent jurisdiction.
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21. GENERAL PROVISIONS:
a) Assignability. This Agreement shall not be assignable by any of the
parties to this Agreement without the prior written consent of all other parties
to this Agreement.
b) Governing Law. This Agreement has been negotiated and prepared and
shall be performed in the State of Florida, and the validity, construction and
enforcement of, and the remedies under, this Agreement shall be governed in
accordance with the laws of the State of Florida (except that if any choice of
law provision under Florida law would result in the application of the law of a
state or jurisdiction other than the State of Florida, such provision shall not
apply).
c) Severability of Provisions. The invalidity or unenforceability of
any particular provision hereof shall not affect the remaining provisions of
this Agreement, and this Agreement shall be construed in all respect as if such
invalid or unenforceable provision were omitted.
d) Successors and Assigns. The rights and obligations of the parties
hereunder shall inure to the benefit of, and be binding and enforceable upon the
respective heirs, successors, assigns and transferees of either party.
e) Reliance. All representations and warranties contained herein, or
any certificate or other instrument delivered in connection herewith, shall be
deemed to have been relied upon by the parties hereto, notwithstanding any
independent investigation made by or on behalf of such parties.
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IN WITNESS WHEREOF, the undersigned have hereunto caused this
Agreement to be executed the day and year first above written.
ADVANCED VIRAL RESEARCH CORP.
By: /s/ William Bregman (Seal)
------------------------------------
William Bregman, Secretary Treasurer
EMPLOYEE
By: /s/ Shalom Z. Hirschman (Seal)
------------------------------------
Shalom Z. Hirschman
(For purposes of Section 1(b) only)
/s/ Bernard Friedland /s/ William Bregman
- -------------------------- --------------------------
Bernard Friedland William Bregman
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