This Engagement Agreement involves
Title: ENGAGEMENT AGREEMENT
Governing Law: Pennsylvania Date: 6/15/2010
Industry: Biotechnology and Drugs Sector: Healthcare
AMENDED AND RESTATED
Agreement made and entered into as of March 11, 2005 between Hemispherx Biopharma, Inc. a Delaware Corporation (the “Company”) and William A. Carter, M.D., of Tavernier, Florida (“Carter”).
In consideration of the premises and the mutual covenants and conditions herein contained the Company and Carter hereby agree as follows:
1. Engagement. The Company engages Carter and Carter agrees to serve the Company as a consultant relating to patent development. Additionally, Carter shall serve, so long as he is elected by the shareholders of the Company, as a Director of the Company, and shall serve, so long as he is elected by the Board of Directors of the Company, as chairman of the Executive Committee of the Board of Directors of the Company. It is expressly understood and agreed that all of Carter’s services hereunder are being provided as an independent contractor and not as an employee for federal tax purposes.
2. Term. This Agreement shall commence, retroactively, as of January 1, 2005 and shall terminate on December 31, 2010 (the “Initial Termination Date”) unless sooner terminated in accordance with Section 5 hereof or unless renewed as hereinafter provided (such period of service together with any extension thereto hereinafter being called the “Service Period”). This Agreement shall be automatically renewed for successive one (1) year periods after the original Termination Date unless written notice of refusal to renew is given by one party to the other at least ninety days prior to the initial Termination Date or the expiration of any renewal period.
(a) For his services to the Company the Company shall pay Carter a fee (the “Base Fee”) of $207,776.88 per year (the “Original Base Fee”), which shall be subject to adjustments as provided in succeeding subsections (b) and (c).
(b) On January 1, 2006, and on January 1, of each succeeding calendar year during the Service Period, the Base Fee shall be increased or decreased by the amount of increase or decrease in the annual dollar value of Directors fees being provided to the individual Directors of the Company from the December of the preceding year to the December of the second preceding year.
(c) On January 1, 2006, and on January 1 of each succeeding calendar year during the Service Period and after the adjustment provided for in subsection (b) above, the Base Fee shall be increased or decreased by a percentage equal to the percentage average increase or decrease in the Bureau of Labor Statistics “Consumer Price Index – U.S. City Average – All Items” from December of the second preceding year.
(d) For each calendar year (or part thereof) during which this Agreement is in effect, Carter shall be eligible to be paid a performance bonus in an amount up to twenty-five percent (25%) of his Base Fee then in effect, in the sole discretion of the Compensation Committee of the Board of Directors based on Carter’s performance for such year.
4. Expenses. During the Service Period, Carter, upon presentation of payment vouchers or receipts, will be reimbursed for the reasonable and necessary expenses incurred by him in providing services pursuant to this Agreement.
(a) The Company may discharge Carter for cause at any time as provided herein. For purposes hereof, “cause” shall mean the willful engaging by Carter in illegal conduct or gross misconduct which is demonstrably and materially injurious to the Company. for purposes of this Agreement, no act, or failure to act, on Carter's part shall be deemed "willful" unless done, or omitted to be done, by Carter not in good faith and without reasonable belief that Carter's action or omission was in the best interest of the Company. Notwithstanding the foregoing, Carter shall not be deemed to have been terminated for Cause unless and until the Company delivers to Carter a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters of the entire membership of