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EXHIBIT
10.31
EMPLOYMENT AGREEMENT
THIS AGREEMENT is
effective as of the 1
st day
of April, 2002 by and between
GENEREX BIOTECHNOLOGY CORPORATION (the
“Company”), a Delaware corporation and
GERALD BERNSTEIN, M.D. ("Executive"),
an individual residing at 48 Carleon Avenue, Larchmont, New York
10538.
WITNESSETH:
WHEREAS,
the Company is engaged, directly and through subsidiary
corporations (all of which, for the purposes of this
Agreement, are included and encompassed by any reference in
this Agreement to the Company) in the research, development,
testing and commercialization of drug delivery technologies,
including drug technologies for oral administration of
pharmaceuticals such as peptidic drugs, vaccines and hormones
using a buccal spray device (collectively, the
“Technology”); and
WHEREAS,
the Company wishes to engage the Executive to provide certain
services, as more particularly described below, and the
Executive agrees to provide such services, all on the terms
and conditions set forth herein.
NOW
THEREFORE, in consideration of the mutual promises and
covenants contained herein, and for other good and valuable
consideration, receipt of which is hereby acknowledged, the
parties hereto, intending to be legally bound, agree as
follows:
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1.1
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The
Company agrees to employ the Executive and the Executive agrees to
serve the Company pursuant to the terms of this Agreement as Vice
President of Medical Affairs of the Company (hereinafter the
"Employment"), reporting to Anna E. Gluskin, President of the
Company.
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1.2
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The
term of this Agreement shall be for the period commencing on the
date hereof and expiring three years thereafter, subject to earlier
termination in accordance with the provisions of Section 5 of this
Agreement.
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1.3
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The
Executive hereby warrants and undertakes to the Company (in the
knowledge that the Company is relying on such undertaking by
agreeing to enter into this Agreement) that:
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1.3.1 |
by
entering into this Agreement and performing his obligations
hereunder, he is not and will not be in breach of any other
contract of employment or other agreement (whether still in effect
or not) and neither he nor the Company will be liable to any action
relating to any such contract; and
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1.3.2
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he
is not or will not on commencement of this Agreement and thereafter
be subject to any restriction or obligation, howsoever arising,
which may hinder or restrict him from performing fully any of the
duties required under the terms of this Agreement.
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1.4
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The
Company hereby warrants and undertakes to the Executive (in the
knowledge that the Executive is relying on such undertaking by
agreeing to enter into this Agreement) that during the Employment
the Executive shall be primarily based in the State of New York,
unless the Executive otherwise agrees with the Company, and that
the Executive shall be insured from liability arising from his
status, actions or omissions as an officer of the Company to the
extent of the coverage provided by the Company’s
directors’ and officers’ liability insurance policy as
in effect from time to time and subject to the limitations and
exclusions set forth in such policy. Notwithstanding anything to
the contrary herein, the Company, without limiting the rights of
Executive to compensation and benefits hereunder, shall have the
right at any time to assign this Agreement and the
Executive’s Employment hereunder to any business entity which
is controlling, controlled by or under common control with the
Company (“Affiliates”). In the event of such
assignments, (i) any amounts paid to or for the benefit of
Executive by the Affiliate shall be credited against amounts
payable to Executive by the Company under this Agreement, and (ii)
references to the “Company” in Sections 2, 5 and 6 of
this Agreement shall be deemed to include, in addition to the
Company, any Affiliate to which this Agreement shall have been
assigned.
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The
Executive covenants and agrees that during the Employment he
will:
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2.1
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faithfully
and diligently perform the duties of Vice President of Medical
Affairs as may be assigned to or vested in him from time to time by
the Company and which shall be consistent with the responsibilities
generally entrusted to senior management of a corporation in the
same business as that of the Company, and will use his best efforts
to promote the interests of the Company and its
shareholders;
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2.2
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comply
with all laws, rules and regulations applicable to the Company's
business and in accordance with all applicable policies or
guidelines (including any applicable policies or guidelines
pertaining to disclosure of conflicts of interest) of any
institution or organization with which the Executive is
affiliated;
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2.3
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give
to the President and/or the Board of Directors such information
regarding the affairs of the Company as they may
request;
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2.4
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agree
to comply with all laws and regulations under the U.S. federal
securities laws and regulations against misuse or miscommunication
of material non-public information about the Company and
acknowledge that he is aware of these prohibitions;
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2.5
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devote
the whole of his business time, attention and skills to the
business and affairs of the Company and will not, except with the
prior consent by the President and/or the Board of Directors, be
directly or indirectly engaged or concerned in the conduct of any
other business, whether or not competing in any respect with the
business of the Company; provided, however, that the Executive (a)
may continue to serve during the term of this Agreement as a
director or trustee of the American Diabetes Association or of any
affiliated foundation thereof, (b) may serve during the term of
this Agreement, subject to the prior consent of the President
and/or the Board of Directors (which may be withheld for any reason
or no reason), as a director or trustee of any other organization,
(c) may maintain or establish during the term of this Agreement an
affiliation with any medical institution or educational institution
(including, without limitation, as an adjunct or emeritus faculty
member or as a physician with admitting privileges), provided that
such affiliation does not detract in any material way from the
available time and the ability of the Executive to fulfill his
obligations under this Agreement, and (d) may continue to serve as
a consultant in connection with a legal proceeding for which he was
engaged as a medical expert prior to the effective date of this
Agreement until the resolution or conclusion of such proceeding,
provided that such activity does not detract in any material way
from the available time and the ability of the Executive to fulfill
his obligations under this Agreement.
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3.1
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During
the Employment the Company will pay to the Executive, a base salary
at the annual rate of $150,000 (or such higher rate as
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may
from time to time be determined by the Company and notified to the
Executive), which salary will be payable in equal monthly
installments (less customary withholdings) in arrears.
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3.2
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In
addition to payments provided in Paragraph 3.1, the Company shall
pay to the Executive advances, bonuses, options and other
compensation in such amounts and on such terms as are described in
Exhibit A hereto.
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3.3
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The
Company will be entitled at any time during the Employment, and in
all events on termination howsoever arising, to deduct from the
Executive's compensation under this Agreement or from any other
sums owed by the Company to the Executive any monies due from him
to the Company, including, but not limited to, any outstanding
loans or advances taken (including advances pursuant to Exhibit
A).
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4.1
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During
the Employment, the Executive will be entitled:
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4.1.1
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to
paid vacation during each year to be accrued and taken in
accordance with the Company's vacation policy as set forth in the
Company's Employee Manual;
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4.1.2 |
to
payment of or reimbursement for health insurance premiums to
continue (i) Executive’s health insurance in the form of his
Medicare Supplement (at an annual cost at the present time of
approximately $4,100.00) and (ii) his wife’s individual
health insurance policy (at an annual cost at the present time of
approximately $6,900.00);
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4.1.3 |
to
reimbursement for the cost of Executive’s professional
expenses (e.g. journals, professional societies) in the amount of
no more than $4,000 annually; and
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4.1.4
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for
the Company to bear the costs of any reasonable and necessary costs
for travel and lodging incurred by the Executive at the request of
the Company. To the extent practicable, the Executive will make
travel and lodging arrangements through the Company or agents
designated by the Company. To the extent practicable, the Company
shall bear such expenses for its own account. If it is not feasible
for the Company to bear an expense directly for its own account,
the Executive will submit expenses borne by the Executive for
reimbursement of expenses. The Executive
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shall
provide receipts in support of any request hereunder for
reimbursement of expenses. Individual expenses in excess of
$200 must be arranged through the Company or agents of the
Company and approved in advance by the Company in order to be
eligible for reimbursement. Notwithstanding anything to the
contrary set forth herein, the Executive will not be entitled
to reimbursement for expenses incurred by the Executive
(regardless of the dollar amount) that could reasonably have
been arranged through the Company or agents of the Company and
were not.
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5.1 |
Either
party may terminate its obligations under this Agreement (except
for the payment of sums having become due) in its or his absolute
discretion, upon written notice to the other party of not less than
ninety (90) days.
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5.2
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The
Company may terminate its obligations hereunder for cause
(effective immediately upon the giving of notice to the Executive
except as set forth in Section 5.2.5)
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