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Exhibit 10.112
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement"), dated as of
December 19, 2008, is entered into by and between CORTEX
PHARMACEUTICALS, INC. (the "Company"), and MARK VARNEY (the
"Executive").
WITNESSETH
WHEREAS, the Executive has considerable experience in management
and pharmaceutical research and development.
WHEREAS, the Company wishes to employ the Executive as its
President and Chief Executive Officer, and the Executive wishes to
be so employed by the Company.
NOW, THEREFORE, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Engagement . The Company hereby employs the Executive
as its President and Chief Executive Officer, reporting to the
Company’s Board of Directors, and the Executive hereby
accepts such employment, on the terms and conditions hereinafter
set forth. Additionally, during the term of this Agreement, the
Company shall nominate the Executive for reelection as a member of
the Board of Directors and use its best efforts to cause Executive
to be so elected.
2. Term . The term of this Agreement will begin on
August 13, 2008, and shall continue thereafter for an initial
three (3) year period, unless earlier terminated pursuant to
the provisions of this Agreement or otherwise extended by mutual
agreement of the Company’s Board of Directors and the
Executive.
3. Duties . During the term of this Agreement, the
Executive shall serve as the Company’s President and Chief
Executive Officer, and shall have such duties and responsibilities
as are set forth in the Company’s Bylaws and such other
executive responsibilities as may be assigned to him from time to
time by the Company’s Chairman of the Board and/or the Board
of Directors. In particular and without limitation, the
Executive’s duties shall include using diligent efforts as
appropriate to (i) assist in raising additional equity capital
and research and development funds for the Company,
(ii) facilitate the internal development of the
Company’s technology assets, (iii) integrate
developments licensed from academic laboratories into the
technology base of the Company, and pursue both the in/out
licensing of technologies and/or acquisition of other technologies
complementary to those of the Company, (iv) develop
relationships with potential corporate partners for the development
and commercialization of the Company’s technologies, and
(v) pursue the in-licensing of drug candidates from third
parties. The Executive shall use his best efforts and shall act in
good faith in performing all duties reasonably required to be
performed by him under this Agreement.
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4. Availability . Except as herein
provided, the Executive shall devote substantially all of his
working time, attention and energies to the Company’s
business and, except as provided herein, during the term of this
Agreement shall not be engaged in any other business activity
without the prior written approval of the Board of Directors. The
Executive may engage in a reasonable level of professional
activities as are typical for individuals of a comparable
professional stature.
5. Compensation . As compensation for the services to be
rendered hereunder, the Company agrees as follows:
(a) To pay the Executive an annual salary of not less than Three
Hundred Sixty-Two Thousand Dollars ($362,000) per annum, subject to
increases based on an annual review by the Compensation Committee
of the Board of Directors.
(b) To provide the Executive with the opportunity to earn an
annual bonus based upon the attainment of individual and corporate
performance criteria defined by the Board of Directors in such
amounts as shall be within the discretion of the Compensation
Committee and as the Board of Directors determines is appropriate
based on the overall financial condition of the Company.
(c) To continue the mortgage assistance program adopted at the
time of Executive’s hire. The mortgage assistance program
specifies that the Company will provide an interest subsidy over
five (5) years in the form of monthly payments, whereby the
Company will pay 6% of the principal amount of a mortgage (which
mortgage shall not to exceed $1,200,000) on Executive’s
primary residence in Southern California during the first year, 5%
during the second year, 4% during the third year, 3% during the
fourth year, and 2% during the fifth year. Payments under the
mortgage assistance program will also be subject to an income tax
gross up factor of 1.6. This mortgage assistance program started in
August 2006 and will terminate upon the earlier of
(i) Executive’s termination of employment with the
Company or (ii) August 2011.
(d) To reimburse the Executive, promptly upon presentation of
itemized vouchers, for all ordinary and customary business
expenses, consistent with the Company’s reimbursement policy,
incurred by the Executive in the performance of his duties.
(e) To allow the Executive to participate in such employee
benefit programs as are made available to the management of the
Company when and as the Executive becomes eligible therefore under
the terms of such programs, including, without limitation, group
health, disability and life insurance benefits and participation in
other employee benefit plans.
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(f) To allow the Executive to have four
(4) weeks of paid vacation each year during the term of this
Agreement, subject to the maximum accrual permitted by the
Company’s employment policies. The Company and the Executive
agree that time devoted by the Executive toward travel to, and
attendance at, scientific meetings, boards of director meetings,
and trips to meet with business leaders at trade associations shall
not constitute vacation periods. The Executive acknowledges that
salary and all other compensation payable under this Agreement
shall be subject to withholding for income and other applicable
taxes to the extent required by law.
6. Ownership of Material Information . All right, title
and interest of every kind and nature whatsoever in and to
discoveries, inventions and improvements, patents (and applications
therefore), copyrights, ideas, know how, creations or other
proprietary rights arising from or connected with the
Executive’s employment with the Company shall become and
remain the exclusive property of the Company, and the Executive
shall have no interest therein. The Executive agrees to sign the
standard proprietary rights agreement that is required of all
Company employees.
7. Confidential Information . The Executive covenants and
agrees with the Company that he will not, during the term of this
Agreement or thereafter, disclose to anyone (except to the extent
reasonably necessary for the Executive to perform his duties
hereunder or as may be required by law) any confidential
information concerning the business or affairs of the Company (or
of any affiliate or subsidiary of the Company), including but not
limited to business plans, joint ventures, financial or cost
information, and confidential scientific and clinical information
(whether of the Company or entrusted to the Company by a third
party under a confidentiality agreement or understanding), which
the Executive shall have acquired in the course of or incident to
the performance of his duties pursuant to the terms of this
Agreement or his prior employment by the Company. Nothing herein
shall be construed as prohibiting the Executive from disclosing to
anyone any information which is, or which becomes, available to the
public (other than by reason of a violation by the Executive of
this Section 7), which is a matter of general business
knowledge or experience or which the Executive is required to
disclose under applicable law.
8. Termination for Cause . The Company may terminate the
employment of the Executive under this Agreement at any time for
"Cause" (as hereinafter defined) upon notice to the Executive. As
used herein, the term "Cause" shall mean only: (a) the
Executive’s willful refusal or failure to perform the duties
assigned to him; provided, however, that the employment of the
Executive shall not be terminated under this clause unless the
Executive is given notice in writing by the Chairman of the Board
or the Board of Directors that the conduct in question constitutes
grounds for termination under this Section 8 and the Executive
is allowed a period of thirty (30) days to remedy the refusal
or failure; (b) the Executive’s conviction of a crime
involving moral turpitude under the laws of any state, the District
of Columbia or of the United States; or (c) the
Executive’s breach of any of the material terms of this
Agreement. If the employment of the Executive under this Agreement
is terminated under Section 8, the Company shall give written
notice to the Executive specifying the cause of such action. Upon
the effectiveness of a termination of employment under this
Section 8, (i) the Executive agrees to immediately tender
his resignation from the Company’s Board of Directors and
(ii) the Company shall be relieved of all further obligations
under this Agreement, except
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as set forth in this Section 8. In the event
of a termination of this Agreement pursuant to this Section 8,
the Company’s sole liability to Executive shall be
(i) to pay Executive the installments of his then base salary
accrued hereunder and unpaid for services rendered by Executive up
to the date of such termination, together with any accrued but
unused vacation, accrued and unpaid reimbursements under
Section 5(d), and accrued and unpaid amounts under the
mortgage assistance program described in Section 5(c), and
(ii) to pay the unpaid portion, if any, of any bonus that was
previously awarded to him but which is unpaid as of the effective
date of such termination of employment, unless the payment of such
bonus is dependent on Executive’s continued employment with
the Company or the satisfaction of any other conditions that have
not been satisfied at the time of the termination of his
employment. Notwithstanding such termination of employment, the
Executive shall continue to be bound by the provisions of Sections
6 and 7.
9. Termination Without Cause or for Good Reason .
(a) The Company may terminate the employment of the Executive
under this Agreement without Cause at any time upon at least sixty
(60) days�
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