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EXHIBIT 10.12
EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement") is made and effective as of the 1st January
2000, by and between Bioenvision, Inc, a Delaware Corporation (the "Company"),
and Stuart Smith (the "Executive").
WHEREAS, the Company desires to retain the Executive in its employ as the
Executive Vice President of the Company for the period provided in this
Agreement, and the Executive has agreed to employment with the Company in
accordance with the contractual terms and conditions set forth below;
WHEREAS, the Company and the Executive have discussed and the Executive has
agreed that this Agreement supercedes any and all agreements, oral and written,
between the parties hereto with respect of the subject hereof and
WHEREAS, this Agreement is intended to, and shall, set forth the definitive
agreement of the parties.
NOW, THEREFORE, for and in consideration of the recitals and premises, and the
promises, covenants and agreements contained herein, and intending to be legally
bound hereby, the parties hereto agree as follows:
1. Employment. The Company hereby employs the Executive, and the
Executive hereby accepts such employment with the Company, for the term of
employment set forth in Section 2 hereof, all upon the terms and conditions
hereafter set forth.
2. Term. Employment shall be for a term commencing on the date hereof
and, subject to prior termination under Section 8, Section 9, Section 10,
Section 12 or Section 13 hereof expiring December 31, 2001. Notwithstanding the
previous sentence, the term of this Agreement shall automatically be extended
for one additional year upon the terms and conditions set forth herein, unless
either party to this Agreement gives the other party written notice (delivered
in accordance with Section 21 hereof and at least 90 days prior to December 31
2001) of such party's intention not to further extend the term of this
Agreement. For purposes of this Agreement, any reference to the "term" of this
Agreement shall include the original term and any extension thereof
3. Duties of the Executive. The Executive shall serve as the Executive
Vice President of the Company. The Executive shall perform such executive duties
as an Executive Vice President would normally perform or as otherwise specified
in the By-Laws of the Company as in effect on the date of this Agreement, and
shall perform in addition thereto, such other reasonable duties as the Chairman
may request. Except as may otherwise be approved in advance by the Chairman and
except during vacation periods and periods of absence due to sickness, personal
injury or other disability, the Executive shall devote substantially all of his
normal working time and his best efforts to the performance of this duties
hereunder. Notwithstanding the foregoing, nothing contained herein shall
preclude the Executive from (i) serving on the boards of directors or other
companies or organisations with the approval of the Board of Directors of the
Company (the "Board") (not to be unreasonably withheld) or (ii) pursuing his
personal, financial and legal affairs provided that such activity does not
materially interfere with the performance of the Executive's obligations
hereunder.
4. Compensation.
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a) During the term of this Agreement, the Company shall pay to the
Executive a base salary and such bonus as may be awarded to the Executive from
time to time by the Board pursuant to Section 4(b) hereof.
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b) For the period commencing on the date of this Agreement, and ending
December 31, 2001 the Executive's base salary shall be deemed to be $100,000 on
an annualised basis.
The Executive's base salary may be increased from time to time by the
Board. During the term of the Agreement, the Executive's salary shall be
reviewed at least annually by the Board to determine whether an increase beyond
the Executive's base salary is warranted and appropriate.
Except as set forth in this Section 4 such compensation shall be
payable at the times and in the manner consistent with the Company's general
policies regarding Compensation of executive employees, but in no event less
frequently than bi-monthly.
c) In addition to the base salary provided by Section 4(b) hereof, the
Executive shall be eligible annually to receive any incentive bonus (the
"Bonus"), that the Board may grant to him based on the Company's executive
compensation plan then in effect, based on the Chairman's assessment of the
Executive's individual performance, which decision shall be made by the Board in
its sole discretion. The Chairman shall give written notice to the Executive of
the grant of any such Bonus and the amount thereof upon direction of the Board
and Compensation Committee. Such Bonus shall be payable on the next date on
which the Executive is entitled to receive a payment of his base compensation.
The Board may from time to time authorise such additional compensation to the
Executive, in cash, property, options or warrants as the Board may determine in
its sore discretion to be appropriate.
5. Executive Benefits.
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a) In addition to the compensation described in Section 4, the Company
shall make available to the Executive and his eligible dependants such benefits
which are comparable to those provided to other executive and management
employees of the Company, including without limitation any group hospitalisation
, health, dental care or sick leave plan, life or other insurance or death
benefit plan, travel or accident insurance, retirement income or pension plan,
employee stock option plan or other present or future group employee benefit
plan or programme of the Company for which key executives are or shall become
eligible, and Executive shall be eligible to receive during the period of his
employment under this Agreement, and, to the extent provided in Section 11 and
Section 13 hereof during any subsequent period for which he shall be entitled to
receive payment from the Company under Section 11 or Section 13 hereof, all
benefits for which key executives are eligible under every such plan or program
to the extent permissible under thc general terms and provisions of such plans
and programmes in accordance with the provisions thereof provided that, expect
to the extent specifically set forth in Section 4(c), 11, 12 and 13, the
Executive shall not he permitted to participate in management incentive programs
or in termination pay programs. The Executive shall he eligible to participate
in any such plan or programme under the terms and conditions applicable to other
executive and management employees and in a manner commensurate with the
Executive's position and level of responsibility with the Company as compared to
the position and level of responsibility of other executive and management
employees of the Company as determined by the Board in its sole discretion.
b) In addition to any life insurance coverage made available to the
Executive under Section 5(a) hereof; the Company shall provide, at its sole cost
and expense, to the Executive a term life insurance contract on the Executive's
life in an amount onc (1) time his annual base compensation, the proceeds of
which shall be payable to such beneficiary as Executive may designate.
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c) The Company shall allow the Executive to participate in the Company
car scheme during the term of this Agreement.
d) The Executive shall be entitled to 4 weeks paid vacation per year,
which shall be pro-rated for partial years. The Executive may carry over from
year to year up to 500 hours of unused vacation time. Notwithstanding anything
herein to the contrary, the Executive may not take more than two (2) weeks
vacation during any twelve (12) week period without the prior written permission
of the Company, which shall not be unreasonably withheld.
6. Expenses
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The Company shall also pay or reimburse the Executive for all reasonable and
necessary expenses incurred by the Executive in connection with his duties on
behalf of the company in accordance with the general policies of the Company and
his employment by the Company pursuant to this Agreement.
7. Place of Performance. In connection with his employment by the
Company, unless otherwise agreed by the Executive, the Executive shall be based
at the principal executive offices of the Company, except for travel reasonable
required for Company business.
8. Termination. The Company may terminate Executive's employment
hereunder for Cause which shall mean;
a) The Executive's Conviction by, or entry of a plea of guilty or
nolocontendere in, a court of competent and final jurisdiction for any crime
involving moral turpitude or punishable by imprisonment in the jurisdiction
involved (provided that if the Executive's conviction is subsequently
overturned. and the Company had terminated the Executive pursuant to this
Section 8(a), such termination shall be deemed to be without Cause and the
Executive shall be entitled to receive the payments and benefits set forth in
Section 11, together with interest at the then current prime rate as reported in
the Wall Street Journal, from the date such payments are made to the Executive);
b) Executive's breach of any of the covenants contained in Section 25
of this Agreement,
c) Executive's commission of an act of fraud, whether prior to or
subsequent to the date hereof, upon Employer,
d) Executive's continuing repeated wilful failure or refusal to perform
his duties as required by this Agreement, provided, that termination of
Executive's employment pursuant to this subparagraph (d) shall not constitute
valid termination for cause unless Executive shall have first received written
notice from the Board stating with specificity the nature of such failure or
refusal and affording Executive at least fifteen (15) days to correct the act or
omission complained of;
e) Gross negligence1 insubordination, or material violation by
Executive of any duty of loyalty to the Company or any other material misconduct
on the part of Executive, provided that termination of Executive's employment
pursuant to this subparagraph (e) shall not constitute valid termination for
cause unless Executive shall have first received wrinen notice from the Board
stating with specificity the nature of such failure or refusal and affording
Executive at least fifteen (15) days to correct the act or omission complained
of:
f) A material breach of this Agreement by the Executive as determined
by the Company after the Executive has been given written notice of such alleged
breach, and not less than thirty (30) days to cure such alleged breach or such
longer period as may be reasonably necessary to cure such breach provided that
the Executive is diligently pursuing such cure,
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9. Resignation.
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a) In the event that (i) the Company shall during the term of this
Agreement (A) fail to continue the Executive as Senior Vice President of the
Company, (B) reduce the Executive's base salary below the minimum amount
specified in Section 4(a) without the Executive's prior written consent (C)
violate any material term of this Agreement provided that the Executive gives
the Company written notice of such violation and the Company fails to cure such
violation within 30 days or such longer period (the "Cure Period") as may be
reasonably necessary to cure such violation provided that the Company is
diligently pursuing such cure, then the Executive, at his sole option, may give
notice to the Company at any time within ten (10) days after the expiration of
the Cure Period of his election to resign and terminate this Agreement
("Permitted Resignation") effective immediately upon receipt of such notice
(delivered in accordance with Section 21 hereof), or effective upon such other
date (not later than ten (10) days following such notice) that the Executive may
designate in such notice; (ii) the Executive is required to move more than fifty
(50) miles from the then place or performance of the Executive. as defined under
Section 7 herein, or due to a "Change of Control," which shall mean the
occurrence during the term of this Agreement of any of the following events;
A) the Company is merged, consolidated or reorganised
into or with another corporation or other legal persona, and as a
result of such merger, consolidation or reorganisation less than fifty
percent (50%) of the combined voting power of the then outstanding
securities entitled to vote generally in the election of directors
("Voting Stock") of such corporation or person immediately after such
transaction are held in thc aggregate by the holders of Voting Stock of
the Company immediately prior to such transaction; or
B) The Company sells or otherwise transfers all or
substantially all of its assets to another corporation or other legal
person, and as a result of such sale or transfer less than fifty
percent (50%) of the combined voting power of the ten outstanding
Voting Stock of such corporation or person immediately after such sale
or transfer is held in the aggregate by the holders of Voting Stock of
die Company immediately prior to such sale or transfer, or
C) If, during any period of two consecutive years, (i)
individuals who at the beginning of any such period constitute the
Directors of the Company and (ii) such other persons as are nominated
or elected by a vote of the Directors of the company, collectively,
cease for any reason to constitute at least a majority of the Directors
of the Company; provided, however, that for purposes of this clause
9(b)(C) each Director who is first elected, or first nominated for
election by the Company's stockholders, by a vote of the Director's of
the Company (or a committee thereof) then still in office who were
Director's of the company at the beginning of any such period will be
deemed to have been a Director of the company at the beginning of such
period.
10. Death. The term of this Agreement shall terminate on the death of
The Executive.
11. Termination Payment and Benefits. If the Executive's employment
hereunder is terminated by the Executive by Permitted Resignation or by the
Company other than for Cause, prior to the end of the term of this Agreement
then the Company shall be obligated to pay to the Executive certain termination
payments and make available certain benefits, as follows:
a) Termination Payment. The Company shall pay to the Executive a lump
sum in cash, payable within ten (10) business days after the effective date of
such termination, equal to one time the sum of (i) the Executive's base salary
pursuant to Section 4(a) plus (ii)
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the Executive's average annual bonus granted pursuant to Section 4(c) hereof
during the two-year period (or such shorter period during which the Executive is
employed by the Company) immediately preceding the Executive's termination,
prorated for a partial year. In addition, (i) if at the time of termination the
remainder of the term is greater than one (1) year, and the Executive remains
unemployed one (1) year, after the termination date, the Executive shall be
entitled to receive his base salary pursuant to Section 4(a) from such one (1)
year anniversary of the termination date until the earlier of (A) the end of the
term or (B) the date on which the Executive becomes employed (subject to the
limitation that the total amount paid to the Executive pursuant to this Section
11(a) shall not exceed the total amount of base salary the Executive would have
received pursuant to Section 4(a) between the termination date and the end of
the term) and (ii) if at the time of termination the remainder of the term is
less than one (1) year, the Executive will receive one (I) time the amount
otherwise provided in this Section 11(a). Notwithstanding any provision to the
contrary contained herein, the Executive shall be entitled to receive the
payments provided for in the second sentence of this Section 11(a) (A) only for
so long as the Executive accepts all reasonable means available to him to
diligently pursue new employment and (B) provided the Executive accepts a
reasonable offer of employment. It shall be within the company's sole and
absolute discretion to determine whether the Executive has complied with the
provisions of this Section 11(a).
b) Benefits Notwithstanding any provision to the contrary in any option
agreement or other agreement or in any plan, except as provided for under
Section 8(a), (i) all of the Executive's outstanding stock options shall
immediately vest and become exercisable and the Executive shall have the full
term of the option to exercise any of the Executive's stock options, and (ii)
all restrictions on any other equity awards relating to continued performance of
services shall lapse.
Subject to Section 15, for one year following the termination of this
Agreement, the Company shall use its reasonable best efforts to maintain in full
force and effect for the continued benefit of the Executive all employee welfare
benefit plans and perquisite programmes in which the Executive was entitled to
participate immediately prior to the Executive's termination or shall arrange to
make available to the Executive benefits substantially similar to those which
the Executive would otherwise have been entitled to receive if his employment
had not been terminated; provided however, that (i) if the remainder of the term
exceeds one (1) year, the Company shall use its reasonable best efforts to
continue to provide such benefits to the Executive until the end of the term and
(ii) if the remainder of the term is less than one (1) year, the obligation of
the Company pursuant to this Section 11(b) shall extend for only one year (1)
year following the termination date. Such welfare benefits shall be provided to
the Executive on the same terms and conditions (including, without limitation,
employee contributions toward the premium payments) under which the Executive
was entitled to participate immediately prior to his termination.
Notwithstanding the foregoing, with respect to the Executive's
continued coverage under medical and dental plan, or a successor plan, pursuant
to this provision, the Executive's "qualifying event" for purposes of the
Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") shall be his
date of termination from the Company.
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12. Other Termination. If the Company terminates this Agreement for
Cause or if the Executive terminates this Agreement for any reason ocher than by
Permitted resignation or if the Executive dies or in the event of the
Executive's Disability, then the Company and the Executive shall have no further
obligation hereunder except as follows or except as provided in any available
plan, programme or agreement:
a) The Company shall pay the Executive his then current minimum base
salary through the effective date of such termination;
b) If the Executive terminated this Agreement other than by Permitted
Resignation, he shall receive such benefits, if any, as are afforded by the
Company under its then existing policies applicable to employees who voluntarily
terminate their employment; and
c) The Executive shall have the rights set forth in Section 13 hereof
in the event of termination of this Agreement upon his Disability.
13. Disability,
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a) In the event of the Executive's Disability (as defined herein)
during the term of this Agreement, the Executive's duties and obligations
hereunder shall cease and the Company shall pay to the Executive in cash, for
each calendar year until the Executive reaches the age of 65 and at the times at
which the Executive would have received payment of his base salary, an amount
equal to 60% of the sum of (i) the Executive's highest annual base salary
pursuant to Section 4(a) then in effect for the period prior to the Executive's
Disability. For this purpose, the Company shall maintain in full force and
effect during the term of this Agreement an insurance policy with an insurance
company that reasonably shall provide for the payment of such amounts to the
Executive upon his Disability.
b) "Disability"' shall be defined as in the insurance policy referenced
in Section 13(a) hereof.
c) For the period during which the Executive is entitled to receive
payments under this Section 13, the Company shall use its reasonable best
efforts to maintain in full force and effect for the continued benefit of the
Executive all employee welfare benefit plans, as provided for under the
insurance policy limits, except for life insurance provided for under Section
5(b); and except for fire automobile allowance set forth in Section 5(c). Such
welfare benefits shall be provided to the Executive on the same terms and
conditions (including employee contributions toward the premium payments) under
which the Executive was entitled to participate immediately prior to his
Disability.
d) The Company shall have no obligation under this Section 13 if the
Executive is not insurable under an insurance policy with a reasonably priced
premium, as determined by the Company in its sole absolute discretion.
14. No other Termination Compensation. Except as specifically provided
in Sections 11, 12 and 13 hereof, upon termination of this Agreement for any
reason the Executive shall not be entitled to any severance pay or to any, other
compensation or payments (by way of salary, damages or otherwise) of any nature
relating to this Agreement or otherwise relating to or arising out of his
employment by the Company.
15. Mitigation Obligation. The Executive shall mitigate damages
including the amount of any payment provided for pursuant to Section 13 by
seeking other employment or otherwise; provided, however, that the Executive is
under no obligation to mitigate any amount provided for by insurance policies
under Section 13 hereof.
16. Arbitration. Any dispute between the parties under this Agreement
shall be submitted to arbitration and such arbitration shall be conducted in
accordance with thc rules of the International Chamber of Commerce ("ICC"). Each
of the parties hereto shall appoint one person as an arbitrator to bear and
determine any such dispute and if the two arbitrators so chosen shall be unable
to agree, then the two arbitrators shall select a third impartial arbitrator
whose decision shall control. All arbitrators selected shall have previously
engaged in and conducted arbitration's for at least the past three (3) years in
accordance with the rules of ICC. The arbitrators shall have the right only to
interpret and apply the provisions of this
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Agreement and may not change any of its provisions except as permitted by
Section 23 hereof, The arbitrators shall permit reasonable pre-hearing discovery
of facts, to the extent necessary to establish a claim or defence to a claim,
subject to supervision by the arbitrators. The determination of the arbitrators
shall be conclusive and binding upon the parties and judgement upon the same may
be entered in any court having jurisdiction thereof. The arbitrators shall give
written notice to the parties stating his or their determination, and shall
furnish to each party a signed copy of such determination. Arbitration hereunder
shall be final and binding on the parties and may not be appealed. The expenses
of arbitration, including reasonable attorneys' fees, shall he borne by the
losing party or as the arbitrators shall otherwise equitably determine.
17. Indemnification. To the maximum extent permitted under the
corporate Laws of the State of Delaware or, if more favourable, the By-Laws of
the Company as in effect on the date of this Agreement, (a) the executive shall
be indemnified and held harmless by the Company, as provided under such
corporate laws or such By-Laws, as applicable, for any and all actions taken or
matters undertaken, directly or indirectly, in the performance of his duties and
responsibilities under this Agreement or otherwise on behalf of the Company, and
(b) without limiting clause (a), the Company shall indemnify and hold harmless
the Executive from and against (i) any claim, loss, liability, obligation,
damage, cost, expense, action, suit, proceeding or cause of action
(collectively, "Claims".) arising from or out of or relating to the Executive's
performance as an officer, director, employee or agent of the Company or any of
its affiliates or in any other capacity, including, without limitation, any
fiduciary capacity, in which the Executive serves at the request of the Company,
and (ii) any cost or expense (including, without limitation, fees and
disbursements of counsel) (collectively, "Expenses") incurred by the Executive
in connection with the defence or investigation thereof. If any Claim is
asserted or other matter arises with respect to which the Executive believes in
good faith the Executive is entitled to indemnification as contemplated hereby,
the Company shall pay the Expenses incurred by the Executive in connection with
the defence or investigation of such Claim or matter (or cause such Expenses to
be paid) on a monthly basis, provided that the Executive shall reimburse the
Company for such amounts, plus simple interest thereon at the then current prime
rate as reported in the Wall Street Journal as in effect from time to time,
compounded annually, if the Executive shall be found, as finally judicially
determined by a court of competent jurisdiction not to have been entitled to
Indemnification hereunder.
18. Agreement. This Agreement supersedes any and all other agreements,
either oral or written, between the parties hereto with respect to the subject
matter hereof, and contains all of the covenants and agreements between the
parties with respect to such subject matter, and Executive has received legal
counsel regarding the entirety of the Agreement.
19. Withholding of Taxes. The Company may withhold from any amounts
payable under this Agreement all federal, state, city or other taxes as the
Company is required to withhold pursuant to any law or government regulation or
ruling.
20. Successors and Binding Agreement.
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a) The Company will reasonably require any successor (whether direct or
indirect, by purchase, merger, consolidation, reorganisation or otherwise) to
all or substantially all of the business or assets of the Company) by agreement
in form and substance satisfactory to the Executive acting reasonably, expressly
to assume and agree to perform this Agreement in the same manner and to the same
extent the Company would be required to perform if no such succession had taken
place. This Agreement will be binding
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upon and inure to the benefit of the Company and any successor to the Company,
including, without limitation any persons acquiring directly or indirectly all
or substantially all of the business or assets of the Company whether by
purchase, merger, consolidation, reorganisation or otherwise (and such Successor
shall thereafter be deemed the "Company" for the purposes of this Agreement).
b) This Agreement will inure to the benefit of and be enforceable by
the Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributes and legatees.
c) The rights of the Company under this Agreement may without the
consent of Executive, be assigned by the Company in its sole and unfettered
discretion (a) to any person, firm, corporation1 or other business entity which
at any time, whether by purchase, merger, or otherwise, directly or indirectly,
acquires all or substantially all of the assets or business of the Company, or
(b) to any subsidiary or affiliate of the Company (the "Company Group"), or any
transferee, whether by purchase, merger or otherwise, which directly or
indirectly acquires all or substantially all of the assets of the Company or any
other member of the Company Group.
21. Notices. For all purposes of this Agreement, all communications,
including, without limitation, notices, consents, request or approvals, required
or permitted to be given hereunder will be in writing and will be deemed to have
been duly given when hand delivered or dispatched by electronic facsimile
transmission (with receipt thereof confirmed), or five business days after
having been mailed by United States registered or certified mail, return receipt
requested, postage prepaid, or three business days after having been sent by a
nationally recognised overnight courier service such as Federal Express, UPS, or
Purolator, addressed to the Company (to the attention of the Secretary of the
Company) at its principal executive offices and to the Executive at his
principal residence, or to such other address as any party may have furnished to
the other in writing and in accordance herewith, except that notices of changes
of address shall be effective only upon receipt.
22. Governing Law, The validity, interpretation, construction and
performance of this Agreement will be governed by and construed in accordance
with the substantive laws of the State of Delaware, without giving effect to the
principles of conflict of laws of such State.
23. Severability and Reformation. If any provision of this Agreement is
held to be illegal, invalid or unenforceable under any present or future law,
and if the rights or obligations of the parties under this Agreement would not
be materially and adversely affected thereby, such provision shall be fully
separable, and this Agreement shall be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part thereof,
the remaining provisions of this Agreement shall remain in full force and effect
and shall not be affected by the illegal, invalid or unenforceable provision or
by its severance therefrom, and, in lieu of such illegal, invalid or
unenforceable provision, there shall be added automatically as a part of this
Agreement a legal, valid and enforceable provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible, and the parties
hereto request the court or any arbitrator to whom disputes relating to this
Agreement are submitted to reform the otherwise illegal, invalid or
unenforceable provision in accordance with this Section 23.
24. Survival of Provisions. Notwithstanding any other provision of this
Agreement, the parties respective rights and obligations under Sections 4, 5,
11, 12, 13, 14, 15, 16,17 and 19 hereof, and under any other Sections that
provide a party with rights (including without limitation, rights to receive
payments) that have not been fully satisfied as of such termination or
expiration, will survive any termination or expiration of this Agreement or the
termination of the Executive's employment for any reason whatsoever.
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25. Miscellaneous. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by the Executive and the Company. No waiver by either party
hereto at any time of any breach by the other patty hereto or compliance with
any condition or provision of this Agreement to be performed by such other party
will be deemed a waiver of similar or dissimilar provisions or conditions at the
same or at any prior or subsequent time Unless otherwise noted, references to
"Sections" are to sections of this Agreement. The captions used in this
Agreement am designed for convenient reference only and are not to be used for
the purpose of interpreting any provision of this Agreement.
26. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same Agreement. The delivery by facsimile
of an executed counterpart of this Agreement shal1 be deemed to be an original
and shall have the full force and effect of an original copy.
IN WITNESS WHEREOF, the parties hereof have executed this Agreement as
of the day and year first above written
/s/
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Stuart Smith
Bioenvision, Inc
By: /s/
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Name:
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Title:
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