Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made effective as of
this 23rd day of October, 2006 (the "Effective Date"), by and between
ImmuneRegen BioSciences, Inc., a Delaware corporation (the "Company"), and Hal
Siegel, an individual ("Employee"), with reference to the following facts:
RECITALS
WHEREAS, the Company desires that Employee be employed as Senior
Director of Product Development and Regulatory Affairs of the Company; and
WHEREAS, Employee is willing to be employed by the Company and provide
services to the Company under the terms and conditions herein stated.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter contained, and for other good and valuable consideration,
it is hereby agreed by and between the parties hereto as follows:
AGREEMENT
1. EMPLOYMENT, SERVICES, AND DUTIES
1.1 EMPLOYMENT. The Company hereby employs Employee as Senior Director of
Product Development and Regulatory Affairs of the Company and Employee
hereby accepts such employment as of the Effective Date upon the
terms, covenants and conditions set forth herein. Employee shall
render his/her services to the Company by and subject to the
instructions and directions of the Company's President and Chief
Executive Officer to whom Employee shall directly report.
1.2 DUTIES. Employee shall perform all duties assigned to him/her by the
Company's President and Chief Executive Officer to the best of his/her
ability and in a manner satisfactory to the Company.
1.3 TIME AND EFFORTS. Employee shall devote his/her full-time efforts,
attention, and energies to the business of the Company.
Notwithstanding the foregoing, Employee may perform services for other
persons, businesses and organizations, provided that the performance
of such services does not interfere and is not inconsistent with the
Employee's performance of his/her duties and obligations under this
Agreement, including without limitation, the Employee's duties and
obligations under Section 6 of this Agreement. Subject to the
limitations of the preceding sentence, the Company hereby acknowledges
and agrees that (a) Employee provides consulting services to Zila,
Inc. and (b) employee's continuing service to Zila, Inc. during the
term of this Agreement shall be permitted.
2. TERM
The term of employment under this Agreement ("Term of Employment") shall
commence on the Effective Date and, subject to the provisions of Section 4
below, shall continue for two years.
3. COMPENSATION
As the total consideration for Employee's services rendered hereunder,
Employee shall be entitled to the following:
3.1 BASE SALARY. A salary of $200,000 for the first 12 months of full-time
employment (the "First Year Salary"). A salary of $210,000 in the
second year (the "Second Year Salary and collectively with the First
Year Salary and the Second Year Salary, the "Base Salary"). The Base
Salary shall be payable in regular installments in accordance with the
customary payroll practices of the Company. Employee's Base Salary
shall be subject to such payroll deductions as required by law or as
appropriate under the Company's payroll deduction procedures.
3.2 COMMON STOCK. Employee shall be issued 200,000 five-year incentive
stock options on shares of IRBO common stock from the Employee Stock
Option Plan upon the Effective Date of this Agreement. The strike
price of the options will be equal to the closing share price on the
OTC Bulletin Board of IRBO common shares on the Effective Date and the
options will vest 30 days after the Effective Date of this agreement .
3.3 BONUS. Employee shall be entitled to a discretionary bonus pursuant to
those terms set forth in Exhibit A hereto.
3.4 EXPENSES. During the Term of Employment, Employee is entitled to
reimbursement for reasonable and necessary business expenses, per
Company policy, incurred by Employee in connection with the
performance of Employee's duties hereunder provided that (a) such
expenses are ordinary and necessary expenses incurred on behalf of the
Company, and (b) Employee provides the Company with itemized accounts,
receipts and other documentation for such expenses, to be reviewed by
the Company's C.E.O., as are reasonably required by the Company.
3.5 VACATION. Employee shall be entitled to three weeks vacation time each
year during the first and second years of the Term of Employment
without loss of compensation during the Term of Employment. Employee's
vacation shall be governed by the Company's usual policies applicable
to all Employees.
3.6 FRINGE BENEFITS. Employee shall be entitled to participate in or
receive benefits under any employee benefit plan or other arrangement
made available by the Company to its executive personnel, subject to
and on a basis consistent with the terms, conditions and overall
administration of such plans and arrangements.
4. TERMINATION
Employee's employment shall terminate prior to the expiration of the Term
of Employment set forth in Section 2 above upon the happening of the
following:
4.1 TERMINATION FOR CAUSE. The Company may terminate this Agreement for
Cause. For purposes of this Agreement, "Cause" shall mean:
(a) a material act of dishonesty in connection with the Employee's
responsibilities as an employee of the Company;
(b) Employee's conviction of, or plea of nolo contendere to, a felony
or a crime involving moral turpitude;
(c) Employee's gross misconduct which has a material adverse effect
on the Company; or
(d) Employee's consistent and willful failure to perform his/her
employment duties where such failure is not cured within 30 days
after written notice to Employee by the Company.
Any termination for Cause shall be made by written notice to the
Employee, which shall set forth in reasonable detail all acts or
omissions upon which the Company is relying for the termination.
4.2 TERMINATION WITHOUT CAUSE. The Company may terminate the employment of
Employee and all of the Company's obligations hereunder (except as
hereinafter provided) at any time and for any reason or for no reason
during the Term of Employment without Cause by giving Employee written
notice of such termination, to be effective 15 days following the
giving of such written notice.
4.3 TERMINATION DUE TO DISABILITY OR DEATH, Employee's employment
hereunder:
(a) May be terminated by the Company upon 15 days' notice to Employee
in the event that the Company in good faith determines that
Employee has been unable to satisfactorily perform his/her duties
under this Agreement for an aggregate of 90 days within any
12-month period, or can reasonably be expected to be unable to do
so for such period, as the result of Employee's disability, and
within 15 days of receipt of such notice, Employee shall not have
returned to the full-time, continuing performance of his/her
duties hereunder, and
(b) Will terminate immediately upon the death of Employee.
For purposes of this Section 4.3, the Employee shall be considered
disabled or to be suffering from a disability if the Employee is
unable, after any reasonable accommodations required by the Americans
with Disabilities Act or any applicable state law, to perform the
essential functions of his position because of a physical or mental
impairment. In the absence of agreement between Company and the
Employee, whether the Employee is disabled or suffering from a
disability (and the date as of which Employee became disabled) will be
determined by a licensed physician selected by Company. If a licensed
physician selected by the Employee disagrees with the determination of
the physician selected by Company, the two (2) physicians shall select
a third physician. The decision of the third physician concerning the
Employee's disability then shall be binding and conclusive on all
interested parties.
4.4 The Employee shall at all times have the right, by written notice not
less than thirty (30) days prior to the termination date, to terminate
the Term of Employment.
5. EFFECT OF TERMINATION
5.1 TERMINATION FOR CAUSE. In the event that Employee's employment is
terminated pursuant to Sections 4.1 above, the Company shall pay to
Employee, or his/her representatives, on the date of termination of
employment (the "Termination Date"), in satisfaction in full for all
of its obligations hereunder, the following:
(a) Two months salary and payment for any accrued vacation provided
for in Section 3.5, in each case computed on a pro rata basis to
the Termination Date; and
(b) Any expense reimbursements due and owing to Employee as of the
Termination Date.
5.2 TERMINATION FOR DEATH OR DISABILITY. In the event Employee's
employment is terminated pursuant to Section 4.3, the Company shall
pay to Employee, or his/her representatives, on the Termination Date
in satisfaction in full for all of its obligations hereunder, the
following:
(a) in the case of termination due to death, payment for any accrued
vacation provided for in Section 3.5, in each case computed on a
pro rata basis to the Termination Date; and
(b) in the case of termination due to disability, two months salary
and payment for any accrued vacation provided for in Section 3.5,
in each case computed on a pro rata basis to the Termination
Date; and
(c) in the case of termination due to either death or disability, any
unpaid Base Salary and Bonus and expense reimbursements due and
owing to Employee as of the Termination Date.
5.3 TERMINATION WITHOUT CAUSE OR A CONSTRUCTIVE TERMINATION. In the event
Employee's employment is terminated pursuant to Section 4.2 or in the
event a Constructive Termination occurs as Constructive Termination is
defined in the Change-of-Control Agreement by and between the Company
and Employee of even date herewith (the "Change-of-Control
Agreement"), the Company shall pay to Employee, his/her
representatives, on the Termination Date in satisfaction in full for
all of its obligations hereunder, the following:
(a) the remainder of the salary for the year or six months salary,
whichever is greater and payment for any accrued vacation
provided for in Section 3.5, in each case computed on a pro rata
basis to the Termination Date; and
(b) any unpaid Base Salary and Bonus and expense reimbursements due
and owing to Employee as of the Termination Date.
5.4 TERMINATION BY EMPLOYEE. In the event Employee's employment is
terminated pursuant to Section 4.4 and such termination of employment
is not a Constructive Termination as defined in the Change-of-Control
Agreement, the Company shall pay to Employee on the Termination Date
in satisfaction in full of all of its obligations hereunder:
(a) unpaid Base Salary and Bonus and expense reimbursements due and
owing to Employee as of the Termination Date; and
(b) any accrued vacation provided for in Section 3.5, computed on a
pro rata basis to the Termination Date.
6. NON-COMPETITION; CONFIDENTIALITY; NON-SOLICITATION
6.1 COVENANT NOT TO COMPETE. During the Term of Employment, neither
Employee nor any affiliate of Employee, shall compete in any manner,
directly or indirectly, with the business of the Company and/or its
affiliates (that is, the business of developing, manufacturing,
marketing or selling products or services similar to those of the
Company and/or its affiliates), or own, manage, operate, control,
participate or have any interest in or be connected in any manner with
the ownership or control of any business developing, manufacturing,
marketing or selling products or services similar to those of the
Company and/or its affiliates. As used in this Agreement, an
"affiliate" of Employee is any spouse, parent, child, or sibling of
Employee, or any corporation, partnership, association or their
business entity which directly or indirectly is controlled or can have
its acts affected by Employee or in which Employee has an investment.
Nothing contained in this Agreement shall be deemed to preclude
Employee from purchasing or owning, directly or beneficially, as a
passive investment, less than five percent (5%) of any class of
publicly traded securities of any corporation so long as Employee does
not actively participate in or control, directly or indirectly, any
investment or other decisions with respect to such corporation.
6.2 CONFIDENTIALITY AND RETURN OF COMPANY DOCUMENTS. Employee recognizes
and acknowledges that by virtue of his/her employment with the
Company, he/she will have access to certain trade secret and
confidential information of the Company and that such information
constitutes valuable, special and unique property of the Company, and
derives economic value because it is not generally known to the public
or to others who could benefit from its disclosure or use ("Trade
Secrets"). Trade Secrets include, but are not limited to, the
following:
(a) customer and contact information such as customer lists and other
information concerning particular needs, problems, likes or
dislikes of the Company's customers and contacts;
(b) the identities of the Company's customers and contacts;
(c) price information, such as price lists, the contents of bids, and
other information concerning costs or profits;
(d) technical information, such as formulae, know-how, computer
programs, software, source and object codes, secret processes or
machines, inventions and research projects, documentation, or
other methods or processes;
(e) business information relating to costs, profits, sales, markets,
suppliers, plans for further development, market studies or
research projects;
(f) personnel or a compilation of data concerning the Company's
employees and independent contractors; and (g) any other
information valuable because of it private or confidential
nature.
Employee agrees that during the term of employment, and for three
years thereafter, he/she will not reproduce, copy or disclose the
Company's Trade Secrets and confidential business information to any
person, firm, corporation, association or other entity for any reason
or purposes whatsoever, nor will Employee advise, discuss or in any
way assist any other person or firm (including customers or former
customers of the Company) in obtaining or learning about the Company's
Trade Secrets. Employee covenants and acknowledges that upon
separation from employment with the Company, he/she shall immediately
surrender to the Company all of the Company's Trade Secrets and any
and all such documents, materials or other tangible items pertaining
to these Trade Secrets that he/she may possess and that such Trade
Secrets shall be and remain the sole property of the Company. Employee
agrees that if he/she is in doubt as to whether any information,
material, or document is a Trade Secret or is confidential, he/she
will contact the board of directors of the Company before disclosing
or using such information for any purpose other than in furtherance of
Employee's duties as an employee of the Company. Employee agrees that
it will not work for a company competing directly with the Company
during the term of his/her employment with the Company under this
Agreement.
6.3 SOLICITATION OF THE COMPANY'S EMPLOYEES OR CUSTOMERS. Employee
agrees that at any time during the term of his/her employment and
for three (3) years after that term he/she shall not solicit,
directly or indirectly, any employees of the Company to leave
employment by the Company to work for or with Employee or any
competitor of Company nor solicit any of the Company's customers
or potential customers who were solicited by the Company within a
twelve (12) month period immediately prior to the termination of
Employee's engagement.
6.4 SURVIVAL OF CONFIDENTIALITY AND NON-SOLICITATION. The
requirements and covenants of this Section 6.2 and 6.3 shall
survive and continue after the Term of Employment. Employee
recognizes and agrees that violation or threatened violation of
any provision contained in this Section 6 will cause irreparable
damage or injury to the Company and that the Company's remedies
at law for any breach of this Section 6 may not be adequate, and
the exact amount of the Company's damages in the event of such
breach may be impossible to ascertain. Therefore, the Company
shall be entitled, as a matter of right, without further notice
and without the necessity of posting bond thereof, to injunctive
and other equitable relief restraining any threatened or further
violation of this Section. The Company's right to an injunction
shall be in addition to, and not in limitation of, any and other
rights and remedies it may have against Employee, including, but
not limited to, the recovery of damages.
7. NOTIFICATION TO NEW EMPLOYER.
If Employee leaves the employ of the Company, Employee consents to the
Company's notification to any new employer of Employee's and Company's
rights and obligations under this Agreement.
8. SEVERABILITY
Should any term, provision, covenant or condition or this Agreement be
held to be void or invalid, the same shall not affect any other term,
provision, covenant or condition of this Agreement, but such remainder
shall continue in full force and effect as though each such voided
term, provision, covenant or condition is not contained herein.
9. GOVERNING LAW AND SUBMISSION TO JURISDICTION
This Agreement shall be governed by and construed in accordance with
the laws of the State of Arizona. Each of the parties submits to the
exclusive jurisdiction of any state or federal court sitting in
Phoenix, Arizona in any action or proceeding arising out of or
relating to this Agreement and further agrees that all claims in
respect of the action or proceeding may be heard and determined in any
such court and agrees not to bring any action or proceeding arising
out of or relating to this Agreement in any other court. Each party
agrees that a final judgment in any action or proceeding so brought
shall be conclusive and may be enforced by suit on the judgment or in
any other manner so provided by law.
10. BINDING AGREEMENT
This Agreement shall inure to the benefit of and shall be binding upon
the Company, its successors and assigns.
11. CAPTIONS
The Section captions herein are inserted only as a matter of
convenience and reference and in no way define, limit or describe the
scope of this Agreement or the intent of any provisions hereof.
12. ENTIRE AGREEMENT
This Agreement (along with the Change-of-Control Agreement) contains
the entire agreement of the parties relating to the subject matter
hereof, and the parties hereto have made no agreements,
representations or warranties relating to the subject matter of this
Agreement that are not set forth otherwise herein. This Agreement
supersedes any and all prior agreements, written or oral, with the
Company. Any such prior agreements are hereby terminated and of no
further effect and Employee, by the execution hereof, agrees that any
compensation provided for under any such prior agreement(s) is
specifically superseded and replaced by the provision of this
Agreement. No modification of this Agreement shall be valid unless
made by the unanimous written consent of the board of directors of the
Company. The parties hereto agree that in no event shall an oral
modification of this Agreement be enforceable or valid.
13. NOTICE
All notices and other communications under this Agreement shall be in
writing (including, without limitation, telegraphic, telex, telecopy
or cable communication) and mailed, telegraphed, telexed, telecopied,
cabled or delivered by hand or by nationally recognized courier
service guaranteeing overnight delivery to a party at the following
address (or to such other address as such party may have specified by
notice given to the other party pursuant to this provision):
If to the Company:
ImmuneRegen BioSciences, Inc.
4021 N. 75th Street, Suite 201
Scottsdale, AZ 85251
Attention: Michael K. Wilhelm
With a copy to:
Kirkpatrick & Lockhart, Nicholson, Graham LLP
10100 Santa Monica Blvd., 7th Floor
Los Angeles, CA 90067
Attention: Thomas J. Poletti, Esq.
If to Employee:
Hal Siegel
7111 E. McDonald Drive
Paradise Valley, AZ 85253-5406
14. ATTORNEY'S FEES
In the event that any party shall bring an action, reference,
arbitration or proceeding in connection with the performance, breach
or interpretation hereof, then the prevailing party in such action,
reference, arbitration or proceeding as determined by the court or
other body having jurisdiction shall be entitled to recover from the
losing party all reasonable costs and expenses of such action,
reference, arbitration or proceeding, including reasonable attorneys'
fees, court costs, costs of investigation, expert witness fees and
other costs reasonably related to such proceeding.
IN WITNESS WHEREOF, this Agreement is executed as of the day and year first
above written.
"COMPANY"
IMMUNEREGEN BIOSCIENCES, INC.
a Delaware corporation
By: /s/ Michelle R. Laroche
-------------------------------
Michelle R. Laroche, Secretary
By: /s/ Michael K. Wilhelm
-------------------------------
Michael K. Wilhelm, CEO
And
"EMPLOYEE"
/s/ Hal Siegel
-------------------------------
Hal Siegel
Exhibit A
Discretionary Award
In addition to Base Salary, the Employee shall be eligible to receive
a quarterly discretionary award based upon the Employee's and the Company's
performance for the preceding quarter of the Company's fiscal year. Such
discretionary award shall be in the form of Stock Options under the Company's
2003 Stock Option, Deferred Stock and Restricted Stock Plan (the "Stock
Option").
Additionally, the Employee shall be eligible to receive a quarterly
grant of a five-year option to purchase up to 10,000 (ten thousand) shares of
the Company's Common Stock with an exercise price equal to 85% of the fair
market value of the Company's Common Stock on the date such option is issued
(the "Options"). The amount of Stock Options constituting such grant shall be
determined by the Compensation Committee of the Board of Directors in its sole
discretion. Such grant shall be made as of the last day of the applicable
quarter provided that Employee is actively employed by the Company on such date.