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Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this “ Agreement
”) is entered into effective as of November 1,
2007 (the “ Effective
Date ”) between:
AVAX TECHNOLOGIES,
INC. , a Delaware corporation
with offices at 2000 Hamilton Street, Suite 204, Philadelphia, PA
19103 USA (the “ Corporation ”); and
DR.
DAVID BERD , an
individual (the “ Executive ”) residing at 125
Heacock Lane, Wyncote, PA 19095.
W I T N E S S E T H:
WHEREAS, Executive is
currently employed by the Corporation in accordance with that
certain letter agreement dated September 2, 2004 (the
“Employment Letter”).
WHEREAS, the
Corporation and the Executive desire to enter into this Agreement,
setting forth certain terms of the Executive’s
employment.
NOW, THEREFORE, in
consideration of the foregoing and the mutual promises and
covenants herein contained, it is agreed as follows:
(a)
General . The
Corporation engages and employs the Executive, and the Executive
hereby accepts engagement and employment, as the Chief Medical
Officer of the Corporation. The Executive shall faithfully and
diligently perform all acts and duties, and furnish services, as
are normally attendant with such position and/or as are otherwise
duly assigned to the Executive. Subject to Section 10(a)(iv), the
Executive agrees that the Company may from time to time modify or
change the Executive’s position, duties or responsibilities
without any resulting change to the Executive’s
compensation.
(b)
Location . The
Executive shall perform the Executive’s duties hereunder from
the Corporation’s offices and at such other places as shall
be necessary according to the needs, business or opportunities of
the Corporation; provided, that the Executive acknowledges and
agrees that the performance by the Executive of the
Executive’s duties hereunder may require significant domestic
and international travel by the Executive, consistent with past
practices.
(c)
Supervisor . The
Executive shall report the President and Chief Executive Officer of
the Corporation (the “ President ”).
(d)
Hours . The Executive
shall devote such of his time and efforts as shall be necessary to
the proper discharge of the Executive’s duties and
responsibilities under this Agreement. The Executive may engage in
other ventures and activities only with the permission of the
President. The Corporation acknowledges that the Executive may
continue to maintain his staff privileges at Thomas Jefferson
University Hospital and his academic appointment at Thomas
Jefferson University (collectively, the “Thomas Jefferson
University Appointment”) and
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EMPLOYMENT AGREEMENT
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provide related services in connection
therewith; provided that Executive shall not commit or expend more than one (1) day
per week of Executive’s time in connection with the Thomas
Jefferson University Appointment.
(e)
Company Policies . The
Executive undertakes and agrees to observe and abide by all lawful
policies and procedures of the Corporation as the Corporation may
determine and amend from time to time.
The Executive’s employment hereunder shall,
unless earlier terminated, be for a term of three (3) years (the
“ Initial Period
”) commencing on the Effective Date of this
Employment Agreement. The Initial Period and any Renewal Periods
(as defined below) are collectively referred to herein as the
“ Employment Period
”. On a date not less than nine (9) months
before the end of the Initial Period or any Renewal Period, the
Company and the Employee shall negotiate in good faith whether to
extend the Employment Period for a further three year period (each
a “ Renewal Period
”). The Initial Period and each Renewal Period
are subject to earlier termination as hereinafter
provided.
(a)
Salary and Bonus . As
compensation for the performance of his duties on behalf of the
Corporation, the Executive shall be compensated during the
Employment Period as follows:
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(i)
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A base salary of not less than $255,000 per annum
(the “ Base Salary
”), subject to annual review commencing 12
months from the Effective Date;
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(ii)
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At the sole and absolute discretion of the Board,
the Executive may be eligible to receive an annual incentive bonus
(targeted to be 35% of Base Salary, the “
Target ”),
beginning with the first anniversary of the Effective Date during
the Employment Period. The Executive shall meet with the President
to establish such objectives and performance standards pursuant to
the compensation plan of the Corporation. All bonuses shall be paid
as determined by the Board of Directors of the Corporation and only
if the President reasonably determines that the Executive has met
all of the agreed to objectives and performance standards. The
bonus may be more or less than the Target amount based upon the
degree to which the relevant objectives and performance standards
are met or exceeded, and shall be calculated pursuant to the
then-current compensation plan of the Corporation as approved by
the Compensation Committee of the Board of Directors.
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(b)
Withholdings . The
Corporation shall withhold all applicable federal, state and local
taxes, social security and workers’ compensation
contributions and such other amounts as may be required by law or
agreed upon by the parties with respect to the compensation payable
to the Executive pursuant to this Section 3(a) or otherwise in
connection with his employment by the Corporation.
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EMPLOYMENT AGREEMENT
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(c)
Expense Reimbursements . The Corporation shall reimburse the Executive for all normal,
usual and necessary expenses incurred by the Executive in
furtherance of the business and affairs of the Corporation,
including reasonable travel and entertainment, against receipt by
the Corporation of appropriate vouchers or other proof of the
Executives expenditures and otherwise in accordance with such
Expense Reimbursement Policy as may from time to time be adopted by
the Board of Directors of the Corporation.
(d)
Vacation . The
Executive shall be entitled, during the Employment Period, to not
less than Four (4) weeks per year of paid vacation time, so long as
it does not, in the discretion of the President, disrupt
operations. The days selected for the Executive’s vacation
must be mutually agreeable to the Corporation and the
Executive.
(e)
Benefits . During the
Employment Period, the Executive shall be entitled to participate
in any group insurance, hospitalization, medical, dental, health
and accident, disability or similar plan or program of Corporation
(collectively, the “Corporation Benefit Plans”) now
existing or established hereafter to the extent that he is eligible
under the general provisions thereof. During the term of this
Agreement, the Executive shall be entitled to benefits at a level
comparable to the Corporation Benefit Plans in place as of the
Effective Date.
(f)
Life Insurance . The
Corporation shall at all times during the term of this Agreement
maintain (subject to Executive complying with the requirements of
the relevant insurance company(ies), including medical
examinations) at its expense life insurance on the life of the
Executive with death benefits of at least Five Hundred and Ten
Thousand Dollars ($510,000) in the form of a policy owned by the
Executive, the beneficiaries of which are the Executive’s
estate or other beneficiaries designated by the Executive. Upon
termination of this Agreement, the Corporation shall transfer the
policy and all accrued benefits thereunder to the Executive at no
cost to the Executive such that thereafter the Executive may
maintain the full benefits of the policy by paying premiums that
become due for periods after termination at levels not greater than
those being paid by the Corporation during the term of this
Agreement.
(g)
Sick Leave . The
Executive shall continue to be entitled to receive his salary and
benefits hereunder during any period (up to a maximum of 10
business days (or such greater number of days as are consistent
with the Corporation’s sick leave policies) per year) during
which he is unable to perform his duties hereunder because of ill
health or Disability (as defined below).
(h)
Condition . Except as
expressly provided in Section 10 below, the Executive must be an
employee of the Corporation at the time that any compensation is
due in order to receive such compensation.
(i)
Stock Options . As of
the Effective Date, the Executive has been granted the following
vested stock options: 11/1/04 – 200,000 shares at $0.15 per
share, expiring 11/1/2011; 6/7/05 - 250,000 shares at $0.30 per
share, expiring 6/7/2012; and 8/27/07 - 750,000 shares at $0.19 per
share, expiring 8/27/2014, and may be entitled to additional grants
during the Employment Period including any in connection with any
stock option agreements the parties may enter into during the
Employment Period.
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EMPLOYMENT AGREEMENT
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4.
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REPRESENTATIONS AND WARRANTIES BY EXECUTIVE AND
CORPORATION
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(a)
By the Executive . The
Executive hereby represents and warrants to the Corporation as
follows:
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(i)
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No Conflict . Neither
the execution and delivery of this Agreement nor the performance by
the Executive of his duties and other obligations hereunder violate
or will violate any statute, law, determination or award, or
conflict with or constitute a default under (whether immediately,
upon the giving of notice or lapse of time or both) any prior
employment agreement, contract, or other instrument to which the
Executive is a party or by which he is bound. The Executive shall
additionally be subject to the policies of the Thomas Jefferson
University Appointment.
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(ii)
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Binding Effect . The
Executive has the full right, power and legal capacity to execute
and deliver this Agreement and to perform his duties and other
obligations hereunder. This Agreement constitutes the legal, valid
and binding obligation of the Executive enforceable against him in
accordance with its terms. No approvals or consents of any persons
or entities are required for the Executive to execute and deliver
this Agreement or perform his duties and other obligations
hereunder.
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(b)
By the Corporation .
The Corporation hereby represents and warrants to the Executive as
follows:
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(i)
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Corporate Organization . The Corporation is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware, which has all requisite corporate power and authority to
own its properties and conduct its business in the manner presently
contemplated.
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(ii)
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Binding Effect . The
Corporation has full power and authority to enter into this
Agreement and to incur and perform its obligations hereunder. This
Agreement constitutes the legal, valid and binding obligation of
the Corporation enforceable against the Corporation in accordance
with its terms.
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(iii)
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No Conflict . The
execution, delivery and performance by the Corporation of this
Agreement does not conflict with or result in a breach or violation
of or constitute a default under (whether immediately, upon the
giving of notice or lapse of time or both) the certificate of
incorporation or by-laws of the Corporation, or any agreement or
instrument to which the Corporation is a party or by which the
Corporation or any of its properties may be found or
affected.
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(iv)
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Indemnification .
During the Employment Period, the Corporation’s governing
documents provide and will provide for the indemnification of the
Corporation, directors and officers (including Chief Medical
Officer) consistent with the Corporation’s obligations at
Section 11, below.
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EMPLOYMENT AGREEMENT
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(a)
Restrictions . The
Executive understands and recognizes that his services to the
Corporation are special and unique and agrees that, during the
Employment Period and for a period of two (2) years from the date
of termination of his employment for any reason hereunder, he shall
not in any manner, directly or indirectly, on behalf of himself or
any person, firm, partnership, joint venture, corporation or other
business entity (“ Person
”):
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(i)
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enter into or engage in any business directly
competitive with the Corporation’s business or relating to
immunotherapies for the treatment of cancer, or other therapies,
treatments or matters within the scope of, or research and
development relating to, the Corporation’s business, either
as an individual for his own account, or as a partner, joint
venturer, executive, agent, consultant, salesperson, officer,
director or shareholder of a Person operating or intending to
operate within the area that the Corporation is, at the date of
termination, conducting its business; it being expressly understood
that at any and all times after the termination of the
Executive’s employment for any reason, the Executive shall be
free to engage in medical research for or with any Person engaged
in academic medical research (such as a research hospital or
institution) (collectively, “ Restricted Business ”);
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(ii)
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interfere with, disrupt or attempt to disrupt any
past, present or prospective relationship, contractual or
otherwise, between the Corporation and any of its licensors,
licensees, clients, customers, suppliers, employees or other
related parties;
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(iii)
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solicit or accept employment or be retained by any
party who, at any time during the term of this Agreement, was a
customer, licensor, licensee, client or supplier of the Corporation
where his or her position will be related to the business of the
Corporation; or
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(iv)
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solicit or accept the business of any customer,
licensor, licensee, client or supplier of the Corporation with
respect to products or services similar to those supplied by the
Corporation, provided that those products or services are not
generally available to the public.
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This paragraph 5(a) shall be null and void if the
Executive is terminated by the Corporation for any reason other
than that pursuant to Section 10(a)(iii).
(b)
Equitable Remedies . In
the event that the Executive breaches any provisions of this
Section 5 or there is a threatened breach, then, in addition to any
other rights which the Corporation may have, the Corporation shall
be entitled, without the posting of a bond or other security, to
injunctive relief to enforce the restrictions contained herein. In
the event that an actual proceeding is brought in equity to enforce
the provisions of this Section 5, the Executive shall not urge as a
defense that there is an adequate remedy at law nor shall the
Corporation be prevented from seeking any other remedies that may
be available.
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6.
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CONFIDENTIAL INFORMATION
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(a)
Non-Disclosure and Non-Use . The Executive agrees that during the Employment Period and
after the termination (for whatever reason) of the Employment
Period, he will not disclose or make accessible to any other
person, and shall use solely for the benefit of the Corporation,
Confidential Information.
(b)
Definition of “Confidential
Information” . As used in this
Agreement, “ Confidential
Information ” means information
which is:
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(i)
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the confidential, technical or business
infor
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