Exhibit 10.13
Executive Employment
Agreement
This
executive employment agreement (the “ Agreement
”) is entered into as of June 2, 2006 by and between
Micromet, Inc. (hereinafter “ Company ”)
and Dr. Christian Itin (hereinafter “
Executive ”).
Whereas,
Company desires to employ Executive to provide personal services to
Company, and wishes to provide Executive with certain compensation
and benefits in return for his services; and
Whereas,
Executive wishes to be employed by Company and provide personal
services to Company in return for certain compensation and
benefits;
Now,
therefore, in consideration of the mutual promises and
covenants contained herein, it is hereby agreed by and between the
parties hereto as follows:
1. Employment by
Company
1.1
Position. Subject to terms set forth herein, Company agrees to
employ Executive in the position of President, Chief Executive
Officer, and Executive hereby accepts such employment. During his
employment with Company, Executive will devote his best efforts and
substantially all of his business time and attention to the
business of Company, except for vacation periods and reasonable
periods of illness or other incapacities permitted by
Company’s general employment policies.
1.2
Duties and Location. Executive will serve in an executive
capacity and will perform such duties as are customarily associated
with his then current title, consistent with the certificate of
incorporation and the bylaws of Company, and as required by the
board of directors of Company (the “ Board ”),
including, without limitation, the performance of activities as an
officer of Company or Company’s subsidiaries. Executive will
report directly to the Board. Executive’s primary office
location will be in the greater Munich metropolitan area. Company
reserves the right to reasonably require Executive to perform his
duties at places other than at his primary office location from
time to time, and to require reasonable business travel. Upon
termination of the employment pursuant to Section 7, Executive
agrees to resign from all functions which he exercised or assumed
on the basis of or in connection with Executive’s employment
by Company. In the event the Board determines that Executive’
primary office location should be Company’s headquarters in
the United States, the Board and Executive will discuss in good
faith the terms under which Company and Executive may agree to such
relocation.
1.3
Term. The term of this Agreement will commence on June 2,
2006 and will continue from that date until June 1, 2010 (the
“ Initial Term ”), and will be extended
automatically for consecutive one (1) year periods (each an
“ Extension Term ”, and collectively with the
Initial Term referred to herein as the “ Employment
Term ”). If Company or Executive decides not to extend
the Initial Term or any Extension Term, it or he may terminate this
Agreement by providing written notice of termination in accordance
with Section 7.2 or 7.4, respectively, and the terms of
Section 7.2 or 7.4 will apply with respect to any such
termination by Company or Executive, respectively. In addition, the
Employment Term terminates upon termination of employment pursuant
to Section 7 below.
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1.4
Policies and Procedures. In addition to the terms of this
Agreement, the employment relationship between the parties will be
governed by the general employment policies and practices of
Company, including those relating to protection of confidential
information and assignment of inventions. If the terms of this
Agreement differ from or are in conflict with Company’s
general employment policies or practices, this Agreement will
control.
1.5
Board of Directors. Company will use its best efforts to elect
Executive to the Board for so long as Executive holds the position
of Chief Executive Officer of Company. Executive agrees to serve as
a director if elected by the shareholders and the Board.
2. Compensation
2.1
Base Salary. For services rendered hereunder by Executive
during the Employment Term, Executive will receive an annualized
base salary of two hundred sixty-eight thousand Euros
(€268,000) (the “ Base Salary ”), payable
in accordance with Company’s regular payroll schedule (but
not less frequently than monthly), less any payroll withholding and
deductions due on such salary in accordance with applicable law and
Company’s general employment policies or practices. Such Base
Salary will be reviewed annually by the Compensation Committee of
the Board and may be increased at its discretion. The Base Salary
covers all overtime.
2.2
Bonus. Executive will participate in Company’s Management
Incentive Compensation Plan adopted by Company from time to time or
in such other bonus plan as the Board may approve for the senior
executive officers of Company. Except as otherwise provided in this
Agreement, Executive’s participation in and benefits under
any such plan will be on the terms and subject to the conditions
specified in the governing document of the particular plan.
2.3
Equity Compensation. Executive will participate in any equity
or other employee benefit plan that is generally available to
senior executive officers, as distinguished from general
management, of Company, including, without limitation,
Company’s current Equity Incentive Award Plan. Except as
otherwise provided in this Agreement, Executive’s
participation in and benefits under any such plan will be on the
terms and subject to the conditions specified in the governing
document of the particular plan.
2.4
Acceleration of Vesting. The provisions concerning vesting
pursuant to clauses (a), (b) and (c) of this Section 2.4
will be cumulative, and are hereby deemed to be a part of all stock
options, restricted stock and such other awards granted pursuant to
Company’s stock option and equity incentive award plans or
agreements and any shares of stock issued upon exercise thereof
(each a “ Stock Award ”) and to supersede any
less favorable provision in any agreement or plan regarding such
Stock Award.
(a) Subject to any additional acceleration of vesting
and exercisability in connection with a Change of Control (as
defined in subsection (d) below), fifty percent (50%) of
Executive’s outstanding unvested Stock Awards will be
automatically vested and exercisable on the date of first closing
of any transaction or the stockholder vote resulting in such Change
of Control, and all of Executive’s outstanding unvested Stock
Awards will be automatically vested and exercisable six (6) months
from such date if Executive is still employed by Company at that
time.
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(b) If Executive’s employment is terminated by
Company without Cause, by Executive for Good Reason, or as a result
of Executive’s death or Permanent Disability,
Executive’s outstanding unvested Stock Awards that would have
vested over the twelve (12) month period following the date of
termination had Executive remained continuously employed by Company
during such period, will be automatically vested and exercisable on
the date of termination.
(c) If Executive’s employment is terminated by
Company without Cause or by Executive for Good Reason within six
(6) months prior to or twelve (12) months following a
Change of Control, all of Executive’s outstanding unvested
Stock Awards will be automatically vested and exercisable on the
later of (i) the date of termination or (ii) the date of
first closing of any transaction or the stockholder vote resulting
in such Change of Control. If the employment is terminated prior to
the Change of Control, Company will inform Executive in writing of
any Change of Control occurring within six (6) months of such
termination, and will offer to Executive any of Executive’s
Stock Awards that had not vested at the time of termination.
(d) “Change of Control” means and includes
each of the following events:
(i) the acquisition, directly or indirectly, by any
“person” or “group” (as those terms are
defined in Sections 3(a)(9), 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the “ Exchange Act
”), and the rules thereunder) of “beneficial
ownership” (as determined pursuant to Rule 13d-3 under
the Exchange Act) of securities entitled to vote generally in the
election of directors (“ Voting Securities ”) of
Company that represent fifty percent (50%) or more of the combined
voting power of Company’s then outstanding Voting Securities,
other than :
(1) an acquisition by a trustee or other fiduciary
holding securities under any employee benefit plan (or related
trust) sponsored or maintained by Company or any person controlled
by Company or by any employee benefit plan (or related trust)
sponsored or maintained by Company or any person controlled by
Company, or
(2) an acquisition of Voting Securities by Company or
a corporation owned, directly or indirectly by the stockholders of
Company in substantially the same proportions as their ownership of
the stock of Company, or
(3) an acquisition of Voting Securities pursuant to a
transaction described in clause (iii) below that would not be a
Change of Control under clause (iii);
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Provided, however, that notwithstanding the
foregoing, the following event will not constitute an
“acquisition” by any person or group for purposes of
this subsection (i): an acquisition of Company’s securities
by Company (the “ Securities Repurchase ”) which
causes Company’s Voting Securities beneficially owned by a
person or group to represent fifty percent (50%) or more of the
combined voting power of Company’s then outstanding Voting
Securities, except that such Securities Repurchase
will constitute a Change of Control if and when such person or
group, after such Securities Repurchase, becomes the beneficial
owner of any additional Voting Securities of Company;
(ii) if, during any period of two (2) consecutive
years, individuals who, at the beginning of such period, constitute
the Board together with any new director(s) (other than any
director designated by a person who has entered into an agreement
with Company to effect a transaction described in clauses
(i) or (iii) of this Section 2.4(d) whose election
by the Board or nomination for election by Company’s
stockholders was approved by a vote of at least two-thirds (2/3) of
the directors then still in office who either were directors at the
beginning of the two (2) year period or whose election or
nomination for election was previously so approved), cease for any
reason to constitute a majority thereof;
(iii) the consummation by Company (whether directly
involving Company or indirectly involving Company through one or
more intermediaries) of (x) a merger, consolidation,
reorganization, or business combination or (y) a sale or other
disposition of all or substantially all of Company’s assets
or (z) the acquisition of assets or stock of another entity,
in each case other than:
(1) a transaction which results in Company’s
Voting Securities outstanding immediately before the transaction
continuing to represent (either by remaining outstanding or by
being converted into Voting Securities of Company or the person
that, as a result of the transaction, controls, directly or
indirectly, Company or owns, directly or indirectly, all or
substantially all of Company’s assets or otherwise succeeds
to the business of Company (Company or such person, the “
Successor Entity ”) directly or indirectly, at least a
majority of the combined voting power of the Successor
Entity’s outstanding Voting Securities immediately after the
transaction, and
(2) a transaction after which no person or group
beneficially owns Voting Securities representing fifty percent
(50%) or more of the combined voting power of the Successor Entity;
provided, however , that no person or group will be
treated for purposes of this clause (2) as beneficially owning
fifty percent (50%) or more of combined voting power of the
Successor Entity solely as a result of the voting power held in
Company prior to the consummation of the transaction.
2.5
Standard Company Benefits. Executive will be entitled to all
rights and benefits for which he is eligible under the terms and
conditions of the standard benefits and compensation practices
which may be in effect from time to time and provided by Company to
its employees generally, as may be adopted, amended or discontinued
in its discretion, consistent with then applicable law.
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2.6
Business Expenses . Company will reimburse Executive for
Company-related travel, entertainment and other expenses reasonably
incurred by Executive on behalf of Company pursuant to
Company’s expense reimbursement policy for its
employees.
3. Insurance and
Indemnification
3.1
Disability and Life Insurance.
(a) Company will provide at Company’s expense,
and for the benefit of Executive and his designated beneficiaries,
disability and life insurance for the duration of the Employment
Term in the amount of at least €1,000,000.00 in the event of
disability and at least €500,000.00 in the event of death, all
as provided to Executive immediately prior to the effective date of
this Agreement.
(b) Company will have the right to take out life,
health, accident, “key-man” or other insurance covering
Executive, in the name of Company and at Company’s expense in
any amount deemed appropriate by Company. Executive will assist
Company in obtaining such insurance, including, without limitation,
submitting to any required examinations and providing information
and data required by insurance companies.
3.2
D&O Insurance. Company will obtain and maintain at
Company’s expense during the Employment Term and for six
(6) years thereafter liability insurance for the directors and
officers of Company (D&O insurance) in the amount of at least
US$ 10 million.
3.3
Indemnification. Company and Executive will enter into a
separate indemnification agreement, and Company will indemnify
Executive in accordance with the terms of such agreement.
4. Vacation
Executive
is entitled to an annual, paid vacation in accordance with
Company’s standard policies and as otherwise provided for
senior executive officers, but in no event less than twenty
(20) working days. Working days are all calendar days with the
exception of Saturdays, Sundays and statutory holidays in the
greater Munich metropolitan area. Executive will coordinate the
date of vacation reasonably in advance with the other executive
officers of Company and will provide reasonable advance
notification to the chairman of the Board.
5. Outside Activities During
Employment
5.1
Exclusive Employment. Executive agrees not to become engaged in
any other business activity which, in the reasonable judgment of
the Board, is likely to interfere with Executive’s ability to
discharge his duties and responsibilities to Company. Executive may
engage in civic and not-for-profit activities, and participate in
industry associations so long as such activities do not materially
interfere with the performance of his duties hereunder. Executive
agrees that he will not join any boards, other than community and
civic boards and boards of industry associations which do not
interfere with his duties to Company, without the prior approval of
the Board.
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5.2
No Adverse Interests. Except as permitted by Section 5.3,
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 Company, its business or prospects,
financial or otherwise.
5.3
Non-Competition during Employment Term. During the Employment
Term, except on behalf of Company or as expressly authorized by the
Board, Executive will not directly or indirectly, whether as an
officer, director, stockholder, partner, proprietor, associate,
representative, consultant, or in any capacity whatsoever engage
in, become financially interested in, be employed by or have any
business connection with any other person, corporation, firm,
partnership or other entity whatsoever which were known by him to
compete directly with Company, throughout the world, in any line of
business engaged in (or planned to be engaged in) by Company;
provided, however , that anything above to the
contrary notwithstanding, he or his immediate family may own, as a
passive investor, securities of any competitor corporation, so long
as his direct holdings in any one such corporation will not in the
aggregate constitute more than one percent (1%) of the voting stock
of such corporation.
6. Proprietary Information
Obligations
As a
condition of employment, Executive agrees to execute and abide by
the Proprietary Information and Inventions Agreement attached
hereto as Exhibit A.
7. Termination Of
Employment
7.1
Termination by Company for Cause.
(a) Company may terminate Executive’s employment
with Company at any time for Cause, determined in the Board’s
discretion, upon written notice to Executive.
(b) “ Cause ” means: (i) a
material breach of this Agreement or any other written agreement
between Executive and Company; (ii) Executive’s gross
negligence or willful misconduct in the performance of his duties;
(iii) the commission of any act or omission constituting
dishonesty or fraud that has a material adverse impact on Company
or any successor or affiliate
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