EMPLOYMENT AGREEMENTEmployee Retention Agreement |
|
|
|
You are currently viewing: This Employee Retention Agreement involves
AVANT IMMUNOTHERAPEUTICS, INC. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
|
|
|
Search Employee Retention Agreement by:
Exhibit 10.1
Execution Version
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the Agreement) is entered into this 23rd day of July, 2008 (the Effective Date), between Anthony S. Marucci (the Executive) and AVANT IMMUNOTHERAPEUTICS, INC., a Delaware corporation (the Company) (collectively, the Executive and the Company shall be referred to as the Parties). In consideration of the mutual promises and agreements contained herein, the Parties agree as follows:
1.
PURPOSE. The Company desires to avail itself of the
services of the Executive as Executive Vice President, Corporation Development,
and the Executive desires to provide such services in accordance with the terms
of this Agreement. The Parties agree that the duties and obligations
expected of the Executive and of the Company are as set forth in this
Agreement.
2.
EFFECTIVE DATE AND TERM. This Agreement shall be effective, and its term
(the Term) shall commence as of the Effective Date. The Term shall
continue through and until July 30, 2011 (the Initial Term), unless
terminated sooner as provided by this Agreement or extended by the
Parties. The Term shall be automatically renewed for successive periods
of one year each (each, a Renewal Term), unless either Party gives to the
other written notice of intent not to renew at least ninety (90) days prior to
the expiration of the Initial Term or any Renewal Term (a Notice of
Non-Renewal).
3.
COMPENSATION.
A.
Salary. During the Term, the Company shall pay or cause
to be paid to the Executive, in installments pursuant to the Companys payroll
practices as in effect from time to time, a base salary of $250,000.00 per
annum or such greater amount as may from time to time be determined by the
Board of Directors or the Compensation Committee thereof (the Board) of the
Company (the Base Salary). The Base Salary shall be reviewed annually
in accordance with the Companys compensation and review policies and, in the
sole discretion of the Board, may be increased.
B.
Annual Bonus. With respect to each fiscal year of the
Company that ends during the Term, the Executive shall be eligible to receive
an annual bonus (the Discretionary Bonus) based upon the Executives overall
performance of the Services on behalf of the Company during such fiscal year,
and/or based upon the Companys attainment of pre-established goals relating to
such fiscal year (which if applicable, will be determined by the Board and
communicated to the Executive within 30 days following the beginning of the
applicable fiscal year). Commencing with fiscal year 2009, the Board
shall determine a target amount for the Discretionary Bonus and communicate
that to the Executive prior to February 1 of the bonus year. The
attainment of any applicable performance goals and the amount to be paid in
respect of the Discretionary Bonus shall be determined by the Board in good
faith and in accordance with such written goals and policies as may be agreed
upon from time to time by the Board and the Chief Executive Officer. The
Discretionary Bonus, if any, shall be payable as a lump-sum payment within
sixty (60) days immediately following the last day of the applicable fiscal
year.
C.
Expenses. The Company shall reimburse the Executive for
any travel, hotel, entertainment and other expenses reasonably incurred by the
Executive in furtherance of the Executives duties under this Agreement subject
to and in accordance with the Companys applicable travel and expense
reimbursement policies.
D.
Employee Benefits. The Executive shall be entitled to participate in any
and all employee benefit plans in effect from time to time that are provided
generally to employees of the Company, and in any executive perquisite programs
in effect from time to time that provide benefits to other executives of the
Company of comparable stature and with comparable duties and
responsibilities. The Executive shall, during the Term, be entitled to
paid time off in accordance with applicable Company policies in effect from
time to time, in addition to public holidays observed by the Company.
E.
Directors and Officers Liability
Insurance; Life Insurance. The
Company shall indemnify the Executive to the fullest extent permitted under its
by-laws. The Company shall purchase directors and officers liability
coverage for its senior executive officers, and the Executive shall be named as
a covered officer under such policy during the term. The Company shall
also provide US$1,000,000 of term life insurance coverage, for the benefit of
the Executives estate or family.
F.
CEO and President on an Interim
Basis. On an interim basis,
unless and until further action is taken by the Board of Directors of the
Company, the Executive shall also hold the title of Chief Executive Officer and
President, reporting directly to the Board of Directors. During the
period that the Executive serves the Company in such interim capacity (the Interim
Period) (and only during that period), he shall accrue a bonus in the
amount of $3,992.31 per week (such accrued bonus, the Interim Accrued Bonus)
commencing as of May 1, 2008. The Interim Accrued Bonus will be paid
to the Executive at the end of each month during the Interim Period, in
arrears, with a final payment of any remaining Interim Accrued Bonus to occur
no later than thirty (30) days following the last day of the Interim Period.
4.
DUTIES OF THE EXECUTIVE.
A.
Duties. During the Term, the Executive shall hold the
title of Executive Vice President, Corporate Development, shall report directly
to the Chief Executive Officer or the Board and shall perform such duties as
the Company may reasonably require and shall use his best efforts to carry into
effect the directions of the Chief Executive Officer of the Company.
B.
Representation. During the Term, the Executive shall well and
faithfully serve the Company and use the Executives best efforts to promote
the interests of the Company. The Executive shall at all times give the
Company the full benefit of his knowledge, expertise, technical skill and
ingenuity in the performance of his duties and exercise of his powers and
authority in the capacity or capacities described in Section 4(A) hereof,
as the case may be.
C.
Time Devoted by Executive. The Executive agrees to devote substantially
all of the Executives time and attention during business hours and such
additional time and attention as may reasonably be required to perform his
duties hereunder. It shall not be a violation of this Agreement for the
Executive to (a) serve on a maximum of two (2) corporate,
2
civic or charitable boards or committees, (b) deliver lectures, fulfill speaking engagements or teach at educational institutions, (c) manage personal investments, or (d) engage in activities permitted by the policies of the Company or as specifically permitted by the Company, so long as such activities do not significantly interfere with the full time performance of the Executives responsibilities in accordance with this Agreement.
5.
RESTRICTIONS ON THE EXECUTIVE.
A.
Non-Disclosure of Confidential
Information. All information
learned or developed by the Executive during the course of the Executives
employment by the Company or any subsidiary thereof will be deemed
Confidential Information under the terms of this Agreement. Examples of
Confidential Information include, but are not limited to, business, scientific
and technical information owned or controlled by the Company, including the
Companys business plans and strategies; business operations and systems;
information concerning employees, customers, partners and/or licensees; patent
applications; trade secrets; inventions; ideas; procedures; formulations;
processes; formulae; data and all other information of any nature whatsoever
which relate to the Companys business, science, technology and/or
products. In addition, Confidential Information shall include, but not be
limited to, all information which the Company may receive from third
parties. The Executive will not disclose to any person at any time or use
in any way, except as directed by the Company, either during or after the
employment of the Executive by the Company, any Confidential Information.
The foregoing restrictions shall not apply to information which is or becomes
part of the public domain though no act or failure to act by the
Executive. In addition to the foregoing, in the process of the
Executives employment with the Company, or thereafter, under no condition is
the Executive to use or disclose to the Company, or incorporate or use in any
of his work for the Company, any confidential information imparted to the
Executive or with which he may have come into contact while in the employ of
his former employer(s).
B.
Inventions. The term Invention means any invention,
discovery, improvement, apparatus, implement, process, compound, composition or
formula, whether or not patentable, conceived or reduced to practice, in whole
or in part, by the Executive (alone, or jointly with others) during any term of
his employment by the Company and twelve (12) months thereafter which directly
or indirectly relates to the business, science, technology or products of the
Company and /or any Confidential Information. The Executive will keep, on
behalf of the Company, complete, accurate, and authentic accounts, notes, data,
and records (Records) of each and every Invention, which Records will, at all
times, be the property of the Company. The Executive will comply with the
directions of the Company with respect to the manner and form of keeping or surrendering
Records and will surrender to the Company all Records at the end of the
Executives term of employment by the Company.
Each Invention will be the sole and exclusive property of the Company. The Executive will, at the request of the Company, make application in due form for United States letters patent and foreign letters patent (each, a Patent) on any Invention and execute any necessary documents in connection with the Patents. The Executive will assign and transfer to the Company all right, title, and interest of the Executive in any Patents or Patent applications. The Executive agrees to cooperate with any actions necessary to continue, renew or retain the Patents. The Company will bear the entire expense of applying for and obtaining the Patents.
3
For one year after the termination of the term of the Executives employment by the Company, the Executive will not file any applications for Patents on any Invention other than those filed at the request of and on behalf of the Company.
The Executive, as a condition of his employment, hereby represents that, to the best of his knowledge, there is not as of the date of this Agreement any agreement or obligation outstanding with or to any of his former employers or other party, which would restrict, limit or in any way prohibit all or any portion of his work or employment, nor is there in his possession any confidential information used by any of his former employers or any other party (except as may have been revealed in generally available publications or otherwise made publicly available).
C.
Non-Competition; Non-Solicitation.
(1) Non-Competition. During the Term, without the consent of the Board, and
thereafter as specifically provided in Subsection 6.A.(2) or 6.D.(2), the
Executive may not directly or indirectly engage in, or have any interest in,
any business (whether as employee, officer, director, agent, security holder,
creditor, consultant, or otherwise) that competes with the business of the
Company or any subsidiary thereof (as such business may exist during the Term).
(2) Non-Solicitation of Employees. During the Term, and thereafter as specifically
provided in Subsection 6.A.(2) or 6.D.(2), the Executive shall not,
directly or indirectly induce or solicit any employee or independent contractor
of the Company or any subsidiary thereof to terminate his or her employment
with the Company for the purpose of joining another company in which the
Executive has an interest (whether as an employee, officer, director, agent,
security holder, creditor, consultant, or otherwise).
D.
Breach. The Executive acknowledges that there may be
circumstances in which his breach of any covenant set forth in this
Section 5 could cause substantial harm to the Company which may not be
compensable by monetary damages alone, and which could potentially entitle the
Company to injunctive relief. However, by acknowledging this possibility,
the Executive is not agreeing to waive his right to require the Company to meet
its evidentiary burdens as required by law in any cause of action brought by
the Company seeking such injunctive relief. The restrictions contained in
Subsection 5(c) above shall not prohibit Executive from owning
(beneficially or of record) less than 5% of any class of equity or debt
security issued by a publicly-held company, regardless of whether that
publicly-held company is otherwise a competitor of the Company.
6.
TERMINATION.
A.
Termination for Cause by the
Company.
(1) This Agreement and the Term may be terminated for
cause by the Company pursuant to the provisions of this Subsection 6.A.
If the Board determines that cause exists for termination of the Executives
employment, written notice thereof must be given to the Executive describing
the state of affairs or facts deemed by the Board to constitute such
cause. Unless the Board determines that the conduct constituting cause is
not curable, the Executive
4
shall
have ten (10) days after receipt of such notice to cure the reason
constituting cause and if the Executive does so to the reasonable satisfaction
of the Board, the Term shall not be terminated for the cause specified in the
notice. During such ten (10) day period, the Term shall continue and
the Executive shall continue to receive his full Base Salary, expenses and
benefits pursuant to this Agreement. If such cause is not cured to the
Boards reasonable satisfaction within such ten (10) day period, the
Executive may then be immediately terminated by a majority vote of the Board.
For purposes of this Agreement, the words for cause or cause means
(i) dishonest statements or acts of the Executive with respect to the
Company or any subsidiary or other affiliate of the Company; (ii) the
commission by or indictment of the Executive for (A) a felony or
(B) any misdemeanor involving moral turpitude, deceit, dishonesty or fraud
(indictment, for these purposes, meaning an indictment, probable cause hearing
or any other procedure pursuant to which an initial determination of probable
or reasonable cause with respect to such offense is made); or (iii) gross
negligence, willful misconduct or insubordination of the Executive with respect
to the Company or any subsidiary or other affiliate of the Company.
(2) In the event the Term is terminated by the Company for
cause, the provisions of Subsections 5.C.(1) and 5.C.(2) shall
continue to apply for one year after the conclusion of the Term.






