SECOND AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Amended and Restated Employment
Agreement (the “ Agreement ”)
is entered into as of March 11, 2009 (the “
Effective Date ”) between Regenerx Biopharmaceuticals,
Inc. , a Delaware corporation (the “
Company ”), and Dr. Allan L. Goldstein
(the “ Executive ”).
Whereas
, the parties previously entered
into an Employment Agreement, dated as of January 1, 2002
(“ Original Effective Date ”) and
subsequently amended the original Employment Agreement effective as
of December 31, 2008 based upon Section 409A of the
Internal Revenue Code of 1986, as amended (“
Code ”), and now desire to amend and restate
the Employment Agreement again in order to reflect certain
revisions to the terms and conditions of employment;
Whereas
, Executive possesses substantial
knowledge and experience with respect to the Company’s
business; and
Whereas
, the Company desires to continue to
employ Executive to have the benefits of his expertise and
knowledge and Executive, in turn, desires to remain in employment
with the Company;
NOW, THEREFORE, i n consideration of the mutual covenants and
representations contained in this Agreement, the Company and
Executive agree as follows:
1.
Employment Of Executive;
Position . The
Company agrees to employ Executive and Executive agrees to be
employed by the Company as the Chairman and Chief Scientific
Advisor subject to the terms and conditions of this Agreement.
Executive shall devote such time to the affairs of the Company as
is necessary to perform his duties under this Agreement. The
Company recognizes and agrees that, so long as Executive shall be
reasonably available to perform his duties hereunder, he may engage
in other businesses and may render services to other persons. In
particular, the Company agrees that Executive may continue to be
employed by the George Washington University in Washington, DC (the
“ University ”), and it is understood
that Executive’s activities on behalf of the Company will not
conflict with faculty guidelines with the University. In addition,
Executive may engage in any activities in the scientific community
that maintain or advance his professional status, such as serving
as an officer in scientific societies, lecturing at academic
institutions, authoring papers and books, and engaging in research
collaborations with other professionals so long as such activities
do not conflict with his responsibilities to the
Company.
2.
Term Of Employment And
Renewal . The term
of Executive’s employment under this Agreement commenced on
the Original Effective Date. The term of Executive’s
employment hereunder was for an initial term of three
(3) years from the Original Effective Date (the “
Initial Term ”). The Initial Term of this
Agreement has been and shall continue to be automatically extended
for successive one (1) year periods (each a “
Renewal Period ”), unless the Company or
Executive gives written notice to the other at least thirty
(30) days prior to the expiration of a Renewal Period, of such
party’s election not to extend this Agreement. References
herein to the “ Term ” shall mean the
Initial Term as it may be so extended by one or more Renewal
Periods. The last day of the Term is the " Expiration
Date .”
3.
Duties
. During the Term, Executive shall
serve as the Chairman of the Company’s Board of Directors
(the “ Board ”) and shall perform such
duties and responsibilities as are customarily associated with his
position and such other duties not inconsistent with his title and
position and as may be assigned to him by the Company. Executive
shall act in conformity with the written and oral policies of the
Company and within the limits, budgets, business plans and
instructions as set by its Board. Executive shall be subject to the
authority of the Board and the Company’s duly appointed
officers.
4.
Place Of
Employment .
Executive acknowledges that the Company’s offices and
headquarters are currently located in the County of Montgomery,
State of Maryland and that shall be the initial site of
Executive’s employment.
5.
Other Employment
Policies . The
employment relationship between the parties shall also be governed
by the general employment policies and practices of the Company,
including those relating to protection of confidential information
and assignment of inventions, except that when the terms of this
Agreement differ from or are in conflict with the Company’s
general employment policies or practices, this Agreement shall
control.
6.1 Base Salary . On the Effective Date, Executive is receiving
an annual base salary of One Hundred Eighty Seven Thousand Four
Hundred and Sixty (US $187,460) (the “ Base
Salary ”), subject to standard federal and state
payroll withholding requirements. The Base Salary shall be payable
in equal periodic installments which are not less than on a monthly
basis. The Base Salary shall not be adjusted downward without the
written consent of Executive, except in a circumstance which is
part of a general reduction or other concessionary arrangement
affecting all employees or affecting senior executive
officers.
6.2 Bonus . Executive shall be eligible to receive an
annual bonus in such amount as shall be determined in the sole
discretion of the Board of the Company.
7.1 Stock Options . To date, Executive has been granted options
(the “ Options ”) to purchase 550,000
shares of the Company’s common stock pursuant to the
Company’s Amended and Restated 2000 Stock Option and
Incentive Plan (“ Plan ”). Additionally,
and from time to time at the sole discretion of the Company’s
Board, the Company may make additional stock option awards to
Executive (the “ Additional Options ”).
Subject to the provisions below regarding accelerated vesting of
option grants, the specific terms and conditions of the Option and
any Additional Options will be as set forth in the Plan, and any
stock option agreement between Executive and the
Company.
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7.2 Acceleration Clause For Stock Option
Vesting. In the event of
(a) Executive’s termination from employment without
Cause as that term is defined in Section 13.2 of this
Agreement; or (b) a Change of Control event as set forth under
Section 12.1 of this Agreement, Executive’s Options and
any Additional Options shall be immediately vested and become
exercisable in full. Additionally, and without in any way limiting
the foregoing, Executive’s Options and Additional Options
will also become vested and exercisable in full in the event of a
“ Change of Control ” (or any similar
term provided in the Applicable Plan) as defined under the terms of
the equity plan (the “ Applicable Plan ”)
pursuant to which such option was granted.
8.
Benefits
. Executive shall be entitled to
(i) participate in and receive all standard employee benefits
under applicable Company welfare benefits plans and programs (if
and when such benefits are established by the Company) to the same
extent as other senior executives of the Company;
(ii) participate in all applicable incentive plans, including
stock option, stock, bonus, savings and retirement plans provided
by the Company (if and when such plans are established by the
Company), which are offered to senior executive officers in the
company ( provided , however , that the Company is
not obligated to award any particular type or amount of equity to
Executive); (iii) receive such perquisites as the Company may
establish from time to time which are commiserate with
Executive’s position and comparable to those received by
other senior executives of the Company; (iv) paid vacation of
at least four (4) weeks per annum; and (v) holidays, leaves of
absence and leaves for illness and temporary disability in
accordance with the policies of the Company and federal, state and
local law.
9.1 Other Employment/Enterprise
. Except with the prior written
consent of the Board, Executive will not, while employed by the
Company undertake or engage in any other employment, occupation or
business enterprise, other than ones in which Executive is a
passive investor or as permitted by Section 1 of this
Agreement, so long as such activities do not materially interfere
or conflict with the performance of his duties
hereunder.
9.2 Conflicting Interests
. Except as permitted by
Section 1, while employed by the Company, Executive agrees not
to acquire, assume or participate in, directly or indirectly, any
position, investment or interest known by him to be adverse or
antagonistic to the Company, its business or prospects, financial
or otherwise.
10.
Proprietary Information,
Nonsolicitation, Noncompetition And Inventions Assignment
Obligations . As a
condition of employment, Executive agrees to execute and abide by
the Proprietary Information, Nonsolicitation, Noncompetition and
Inventions Assignment Agreement attached as Exhibit A to this
Agreement.
11.1 No Conflict With Existing
Obligations . Executive
represents that his performance of all the terms of this Agreement
and as an employee of the Company does not and will not breach any
agreement or obligation of any kind made prior to his employment by
the Company, including agreements or obligations he may have with
prior employers or entities for which he has provided services or
continues to provide services. Executive has not entered into, and
agrees he will not enter into, any agreement or obligation either
written or oral in conflict herewith.
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11.2 No Disclosure Of Confidential
Information . If, in
spite of the second sentence of Section 11.1, Executive should find
that confidential information belonging to any former employer
might be usable in connection with the Company’s business,
Executive will not intentionally disclose to the Company or use on
behalf of the Company any confidential information belonging to any
of Executive’s former employers (except in accordance with
agreements between the Company and any such former employer); but
during Executive’s employment by the Company he will use in
the performance of his duties all information which is generally
known and used by persons with training and experience comparable
to his own and all information which is common knowledge in the
industry or otherwise legally in the public domain.
12.1 Definition . “ Change of Control
” shall be deemed to occur upon any of the following
events:
(a) the dissolution or liquidation of the
Company;
(b) the sale of all or substantially all of the
assets of the Company to an unrelated person or entity;
(c) a merger, reorganization or consolidation in
which the holders of the Company’s outstanding voting power
immediately prior to such transaction do not own a majority of the
outstanding voting power of the surviving or resulting entity, or
its parent corporation, immediately upon completion of such
transaction;
(d) the sale of all of the capital stock of the
Company to an unrelated person or entity; or
(e) if any individual, firm, corporation, or other
entity, or any group (as defined in Section 13(d) of the Securities
Exchange Act of 1934, as amended (the “ Exchange
Act ”)), other than (1) a trustee or other
fiduciary holding securities of the Company under an employee
benefit plan of the Company or (2) Executive becomes the
“beneficial owner” (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the
Company representing 50% or more of (A) the outstanding shares of
common stock of the Company, or (B) the combined voting power
of the Company’s then-outstanding securities entitled to vote
generally in the election of directors, or
(f) any other transaction in which the owners of the
Company’s outstanding voting power prior to such transaction
do not own at least a majority of the outstanding voting power of
the relevant entity after the transaction, in each case, regardless
of the form thereof.
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(a) In the event that Executive voluntarily
terminates his employment with the Company for any reason within
12 months after a Change of Control event, as defined in
Section 12.1, then the Company shall pay to Executive on the
Release Effective Date (as defined below), in a lump sum cash
payment, an amount equal to his annual Base Salary in effect on the
date of his termination from employment, less any applicable
federal and state taxes and withholdings. To receive any severance
pay hereunder (other than Accrued Compensation, as defined below),
Executive shall first be required to execute and deliver to the
Company a valid and fully effective general waiver and release of
any claims against the Company, its affiliates, officers,
directors, agents and employees in a form satisfactory to the
Company, within the consideration period set forth in the waiver
and release, which period shall not exceed forty-five
(45) days after the effective date of his termination from
employment (the “ General Release ”). The
date upon which the General Release is executed and delivered to
the Company, and can no longer be revoked, is referred to as a the
“ Release Effective Date .”
(b) By no later than two weeks after the date of
Executive’s termination from employment under this Section
(or earlier if required by applicable law or the Company’s
policies), the Co
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