Attached files
| file | filename |
|---|---|
| 10-Q - AIM ImmunoTech Inc. | v192725_10q.htm |
| EX-31.2 - AIM ImmunoTech Inc. | v192725_ex31-2.htm |
| EX-10.1 - AIM ImmunoTech Inc. | v192725_ex10-1.htm |
| EX-10.2 - AIM ImmunoTech Inc. | v192725_ex10-2.htm |
| EX-32.2 - AIM ImmunoTech Inc. | v192725_ex32-2.htm |
| EX-31.1 - AIM ImmunoTech Inc. | v192725_ex31-1.htm |
| EX-32.1 - AIM ImmunoTech Inc. | v192725_ex32-1.htm |
| EX-10.4 - AIM ImmunoTech Inc. | v192725_ex10-4.htm |
Exhibit
10.3
Amended and
Restated Employment Agreement with
Robert Dickey IV dated August 3, 2010
Robert Dickey IV dated August 3, 2010
EXECUTIVE
EMPLOYMENT AGREEMENT BETWEEN
HEMISPHERX BOIOPHARMA, INC.
AND ROBERT DICKEY IV
This
Agreement is effective as of September 1, 2010 ("Effective Date") between
Hemispherx Biopharma, Inc. ("Hemispherx” or the “Company") and Robert Dickey IV
("Executive").
WHEREAS,
the Company currently employs Executive as Senior Vice President;
WHEREAS,
Company and Executive desire for Executive’s employment to continue on a
month-to-month basis exclusively under the terms of this Agreement and the
Confidentiality, Rights to Work, Covenant Not to Compete Agreement dated June
23, 2009, and incorporated by reference;
NOW
THEREFORE, in consideration of the foregoing recitals incorporated herein and of
the mutual promises and covenants set forth herein, the parties intending to be
legally bound do hereby agree as follows:
1. Position, Term, Duties, and
Representations.
(a) Company
continues to hire Executive and Executive accepts employment as Company's Senior
Vice President. The term of such employment shall be month-to-month,
with a 30 day termination notice.
(b) In
consideration for his continuing engagement, Executive shall devote his full
time and best efforts to the position of Senior Vice
President. Executive shall comply with the policies of the Company
and shall faithfully and to the best of his ability perform and render such
services and perform such duties for the Company as it may reasonably request,
or as may be necessary or desirable in performing or carrying out the intentions
of this engagement. Executive shall perform his duties at the
Company’s office.
(c) Executive
represents and warrants that he is free to continue his engagement under this
Agreement for employment with the Company and that he is not bound by any other
employment agreement, nondisclosure agreement, noncompetition agreement or any
other agreement, document or obligation that may infringe on his ability to, in
any manner, prevent Executive from performing any of the duties that may be
required of Executive during the course of his employment with the Company, or
that may result in liability to the Company in any matter, action, suit or
proceeding concerning Executive.
2. Compensation;
Benefits.
(a) Company
will pay Executive at an annual salary rate of $302,500.00, less applicable
withholding and taxes, payable in accordance with Company's standard payroll
policy.
(b)
Executive shall be entitled to continue to participate in the customary benefits
normally made available by the Company.
(c)
Executive shall be entitled to paid holidays as outlined in the Company's
employee handbook.
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(d) Executive
acknowledges and agrees that he has been paid all compensation due to him prior
to the commencement of this Agreement (through September 1, 2010), whether in
the form of salary, bonus or benefits of employment, and that there are no other
agreements between Executive and Company surviving this Agreement in which any
consideration of any kind whatsoever is due and owing to
Executive. Executive agrees that he is not entitled to receive and
will not claim, any additional compensation, wages, bonuses or benefits, other
than what is expressly set forth herein, and hereby expressly waives any right
to additional compensation, wages, bonuses, and benefits.
3. Unrelated Business
Activities. Executive shall work full-time for the
Company. Executive shall not, directly or indirectly, alone or as a
member of any company, partnership, entity or organization, be actively engaged
in or concerned with any other duties or pursuits which interfere, in the
reasonable determination of the Company, with the performance of his duties for
the Company.
4. Company Policies;
Non-Competition, Confidentiality; No Other Agreements.
(a) Executive
is familiar with and has reviewed and shall comply with Company's personnel
policies except to the extent that such policies conflict with the terms of this
Agreement, in which event this Agreement shall control.
(b) Executive
has entered into that certain Confidentiality, Rights to Work, Covenant Not to
Compete Agreement, attached hereto as Exhibit A and incorporated herein by
reference. Executive acknowledges and agrees that said Agreement continues to be
in force and shall survive the execution and termination of this Agreement, and
that, in the event Executive breaches or violates his obligations thereunder
Company shall have the right, in addition to any other remedies available to it,
to cease making payments under this Agreement and to recover all consideration
previously tendered under this Agreement by Company.
(c) Executive
acknowledges and agrees that any and all agreements, whether oral or written,
between Company and Executive are hereby terminated and shall be deemed null and
void except for this Agreement and Executive’s obligations under that certain
Confidentiality, Rights to Work, Covenant Not to Compete Agreement dated as of
June 23, 2009 (collectively, the “Surviving Agreements”).
5. Termination
(a) In
the event of the death of Executive, this Agreement shall terminate immediately
and any and all compensation then due Executive shall be paid to his
estate.
(b) In
the event Executive is unable to perform his duties under this Agreement due to
reasonably verifiable physical or mental disability, for a period in excess of
sixty (60) days, or for a total sixty (60) days, consecutive or not, within the
term of this Agreement, the Company shall be permitted to terminate this
Agreement without further liability to Executive. “Disability” shall
mean that Executive shall have been unable to perform services contemplated due
to a physical or mental disability.
(c) Definition
of Terms. The following terms referred to in this Section shall have
the following meanings:
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“Disability:
shall mean that Executive shall have been unable to perform services
contemplated due to a physical or mental disability.
(d) Upon
the termination date of this Agreement, Executive agrees that he shall return to
the Company within one (1) day prior to said termination date all property of
Company in his possession, custody or subject to his control, including, but not
limited to, keys, equipment, machines, or personal items provided for his use,
credit and identification cards, customer lists, all tangible property of the
Company, Company work product, any and all other files and documents relating to
the Company and its business, together with all written or recorded materials,
documents, computer discs, plans, records, notes or other papers belonging to
Company, including electronic versions. Executive further agrees that he shall
not make, distribute, retain copies or destroy any such information or property
and shall maintain as confidential any information of the Company which cannot
be returned.
6. General.
(a) Parties Bound by
Agreement. This Agreement shall be binding on and inure to the benefit of
the parties hereto and their respective legal representatives, heirs, executors
and administrators, and successors. This Agreement shall not be
assignable in whole or in part by either party, except that the Company may
assign this Agreement to and it shall be binding upon any subsidiary or
affiliate of the Company or any person, firm or corporation with which the
Company may be merged or consolidated or which may acquire all or substantially
all of the assets of the Company.
(b) Entire Agreement.
This Agreement and the exhibits hereto contain the entire
agreement of the parties with respect to employment and the subject matter
hereof. Executive agrees that he has not relied on any
representations, promises, or agreements of any kind made to him in connection
with this Agreement or his employment except those expressly set forth in this
Agreement. The parties acknowledge and agree that this Agreement has been
negotiated between and among them, and in the event of a dispute about the
meaning, construction, or interpretation of this Agreement, no presumption shall
apply so as to construe the language of the Agreement for or against any party
to this Agreement.
(c) Modification and
Waiver. No modification or waiver of this Agreement or any provision
hereof shall be binding upon the party against whom enforcement of such
modification or waiver is sought unless it is made in writing and signed by or
on behalf of both parties hereto. The waiver of either party of a
breach of any provision of this Agreement by the other party shall not operate
and be construed as a waiver or a continuing waiver by that party of the same or
any subsequent breach of any provision of this Agreement by the other
party.
(d) Severability. If any
provision of this Agreement or the application thereof is held invalid, illegal,
void or unenforceable, in whole or in part, such determination will not affect
any other provision of this Agreement or the remaining portion of a partially
invalid provision, which shall remain in full force and effect and shall be in
no way affected, impaired, or invalidated, and the provision in question shall
be modified, as appropriate, so as to be rendered enforceable.
(e) Governing Law. This
Agreement shall be governed by and construed according to the laws of the
Commonwealth of Pennsylvania.
3
(f) Confidential. Absent
the written consent of the parties this Agreement shall be kept confidential
except that the Company may disclose the agreement to the extent necessary to
meet its Securities and Exchange Commission disclosure filing
requirements.
(g) Dispute
Resolution. Executive and Company agree that, if a dispute
arises concerning or relating to Executive's employment with Company, or any
dispute or controversy concerning the interpretation, construction or
performance of this Agreement, the dispute shall be submitted to binding
arbitration under the employment rules of the American Arbitration Association
then in effect. The arbitration shall take place in the city and
county of Philadelphia, Pennsylvania (unless otherwise mutually agreed), and
both Executive and Company agree to submit to the jurisdiction of the arbitrator
selected in accordance with American Arbitration rules and
procedures. Executive and Company agree that any arbitration held in
accordance with this paragraph shall be governed as follows: (1) the arbitration
shall take place before a single arbitrator; and (2) each party shall be
entitled to present no more than one day of evidence to the
arbitrator. Executive and Company agree that this arbitration
procedure will be the exclusive means of redress for any disputes relating to or
arising out of Executive's employment with Company, including disputes over
rights provided by federal, state, or local statutes, regulations, ordinances,
and common law, including all laws that prohibit discrimination based on any
protected classification. The parties expressly waive their right to
a jury trial, and agree that the arbitrator's award shall be final, binding, and
conclusive on both parties, and nonappealable. The arbitrator shall
have discretion to award monetary and other damages, or to award no damages, and
to fashion any other relief the arbitrator deems appropriate, including
injunctive relief. The arbitrator shall award the prevailing party
reasonable costs and attorney's fees incurred in bringing or defending an action
under this paragraph. Judgment may be entered on the arbitrator's
decision in any court having jurisdiction.
(h) Counsel. The
parties to this Agreement expressly agree and represent that they and/or their
counsel have reviewed this Agreement, that the parties hereto have thoroughly
discussed all aspects of this Agreement with their counsel, or, if Executive is
not represented by counsel in relation to his entering into this Agreement, that
he has had an opportunity to have counsel of his choice review the terms of this
Agreement, that the parties have read and fully understand all of the provisions
of this Agreement, and that the parties enter into this Agreement voluntarily
and of their own volition.
(i) Counterparts. This
Agreement may be executed in one or more counterparts, each of which will for
all purposes be deemed to be an original and all of which shall constitute the
same instrument. A telefax copy of this Agreement shall have the same
effect as an original.
IN WITNESS WHEREOF, the undersigned
have set their hands on the dates indicated.
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HEMISPHERX
BOIPHARMA, INC.
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ROBERT
DICKEY IV
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By:
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/s/ Thomas K. Equels
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/s/ Robert Dickey IV
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Title:
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Vice Chairman & General
Counsel
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Dated:
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August
3, 2010
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Dated:
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August 2,
2010
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