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
Company’s 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 Company’s
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 Executive’s overall performance
of the Services on behalf of the Company during such fiscal year,
and/or based upon the Company’s 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 Executive’s
duties under this Agreement subject to and in accordance with the
Company’s 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 Executive’s 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
Executive’s 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
Executive’s 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,
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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 Executive’s 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 Executive’s 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 Company’s 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 Company’s
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 Executive’s 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 Executive’s 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.
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For one year after the termination
of the term of the Executive’s 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 Executive’s
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
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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 Board’s 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.
(3) In the event the Term is terminated by the
Company for cause, the Executive’s entire right to salary and
benefits hereunder (with the exception of Base Salary and
Discretionary Bonus earned and accrued prior to termination) shall
cease upon such termination.
B.
Termination Without Cause by the
Company or for Good Reason by the Executive.
(1) The Company shall have the right to terminate
the Term, at any time, without cause upon written notice to the
Executive.
(2) The Executive shall have the right to terminate
the Term for good reason on thirty (30) days written notice to the
Company. For purposes of this Agr
