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Exhibit 10.1
Executive Separation and Employment Agreement
This Executive Separation and Employment Agreement ("Agreement"), is
entered into as of April 3, 2000, by and between OXIS International, Inc., its
affiliated, related, parent or subsidiary corporations (the "Company") located
at 6040 N. Cutter Circle, Suite 317, Portland, OR 97217-3935, and Ray R. Rogers
("Executive") residing in Portland, OR (collectively, the "parties").
RECITALS
A. Executive is no longer serving as the Company's Chief Executive
Officer, and Executive desires to resign and the Company desires Executive to
resign as the Chairman of its Board of Directors.
B. Following his resignation, Executive desires to and the Company
desires that Executive remain a Member of its Board of Directors and be employed
as its Special Advisor for the Period of Employment (as defined below), upon the
following terms and conditions.
AGREEMENT
ACCORDINGLY, the parties hereto agree as follows:
1. Resignation of Employment. Executive acknowledges that he is no longer
serving as Company's Chief Executive Officer, and that he will submit and
the Company will accept his resignation as Chairman of the Board of
Directors no later than June 30, 2000 ("Termination Date"). Executive,
however, remains a member of the Company's Board of Directors. In exchange
for the consideration in this Agreement, Executive and Company agree to
execute a release agreement with terms modeled on the General Release of
Claims I, attached hereto as Exhibit A and agreed to by the parties
("Release I"), on or about the Termination Date.
2. Employment as Special Advisor
(a) Initial Term. Effective upon the Termination Date, the Company shall
hire Executive to render services to the Company in the position and
with the duties and responsibilities described in Section 3 for twelve
(12) months (the "Period of Employment"), unless the Period of
Employment is terminated sooner in accordance with Section 8 below.
(b) Renewal. This Agreement will be automatically renewed once for an
additional one (1) year period (without any action taken by either
party), unless either party gives the other written notice of
termination at least sixty (60) days before the last day of the Period
of Employment.
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(c) Non-Renewal. If either party gives notice of termination in
accordance with Section 2.b, and Executive signs a release agreement
with terms modeled on the General Release of Claims II, attached
hereto as Exhibit B, Executive shall receive a continuation of his
then-current salary for six (6) months after the Period of Employment;
in accordance with and subject to Executive's applicable Stock Option
Agreements with the Company, Executive's unvested Options (as defined
in Section 4 below) shall immediately vest eighteen (18) months after
the effective date of this Agreement and Executive shall be able to
exercise his vested Options at anytime subsequent to the period of
employment until a date one year after the eighteen (18) month
anniversary of the effective date of this Agreement otherwise in
accordance with and subject to Executive's applicable stock option
grants; and, to the extent practicable and legally permissible, the
Company will immediately transfer to Executive his disability and life
insurance policies (collectively, "Non-Renewal Benefits").
3. Position, Duties, Responsibilities
(a) Position. During the Period of Employment, Executive will remain a
Member of the Company's Board of Directors (subject to his willingness
to serve in that capacity, and subject to his being re-elected at the
Company's annual meeting of stockholders) and the Company will employ
Executive in the position of Special Advisor. Executive shall perform
all duties appropriate to those positions, as well as such other
responsibilities as may reasonably be assigned by the Company
including, but not limited to leading the divestiture of OXIS Health
Products and other non-related technology ("Divestiture")
(collectively, "Services"). Executive shall report to the Board of
Directors of the Company.
(b) Other Activities. During the Period of Employment, Executive will
not, except upon the prior written consent of the Company's Board of
Directors, which consent shall not be unreasonably withheld: (i)
accept any other full-time employment, or (ii) directly engage in any
other business activity (whether or not pursued for pecuniary
advantage) in the field of ethical pharmaceuticals that is or may be
in direct competition with the business of the Company.
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4. Compensation. In exchange for Services and the other consideration he
provides under this Agreement, Executive shall be entitled to an annual
base salary of two hundred and forty thousand dollars ($240,000.00) payable
in accordance with the Company's regular payroll practices. In addition,
the Board of Directors has awarded Executive options to purchase shares of
the Company's Common Stock under, in accordance with, and subject to
Executive's applicable Stock Option Agreements (certain of the options
under the 2000 Stock Option Agreement are subject to shareholder approval)
with the Company (collectively, "Options"). Executive will not be entitled
to any cash or other bonus for 1999. In addition, Executive's entitlement
to shares under the 2000 Stock Option Agreement may be accelerated in
accordance with the terms thereof, as set forth in the Board of Directors
consent document dated January 31, 2000. Executive also will be eligible to
participate in the Company's benefit plans for health insurance, personal
life insurance, personal disability insurance as stated in the Company's
employment policies (and as may be amended from time to time in the
Company's sole discretion), provided that Executive shall receive such
benefits at the same level provided from time to time to other senior
Executives of Company.
5. Proprietary Information
(a) Company Information. Executive agrees during his employment with the
Company and for a period of three years thereafter, to hold in
strictest confidence, and not to use or disclose to any person, firm
or corporation any Proprietary Information of the Company.
"Proprietary Information" means any Company proprietary or
confidential information, technical data, trade secrets or know-how.
This includes, but is not limited to, research, product plans,
products, services, customer lists, customers, markets, software,
developments, inventions, processes, formulas, technology, designs,
drawings, engineering, hardware configuration information, marketing,
finances or other Company business information. This information shall
remain confidential whether it was disclosed to Executive either
directly or indirectly in writing, orally or by drawings or
observation. Proprietary Information does not include any of the
foregoing items which has become publicly known and made generally
available through no wrongful act of Executive or others who were
under confidentiality obligations as to the items involved.
(b) Former Employer Information. Executive agrees that he will not,
during his employment with the Company, improperly use or improperly
disclose any proprietary information or trade secrets, or bring onto
the premises of the Company any proprietary information belonging to
any former or concurrent employer or other person or entity.
(c) Third Party Information. Executive recognizes that the Company has
received and in the future will receive confidential or proprietary
information from third parties. Executive agrees to hold all such
confidential or proprietary information in the strictest confidence
and not to disclose it to any person firm or corporation or to use it
except as necessary in carrying out his work for the Company
consistent with the Company's agreement with such third party.
(d) No Conflict. Executive represents and warrants that Executive's
execution of this Agreement, his employment with the Company, and the
performance of his proposed duties under this Agreement shall not
violate any obligations he may
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have to any former employer (or other person or entity), including any
obligations with respect to proprietary or confidential information of
any other person or entity.
6. Inventions
(a) Inventions Retained and Licensed. Executive has attached, as Exhibit
C, a list describing all inventions, original works of authorship,
developments, improvements, and trade secrets which were made by
Executive prior to Executive's employment with the Company ("Prior
Inventions"), which belong to Executive, and which relate to the
Company's actual and/or proposed business, products or research and
development. If, in the course of his employment with the Company,
Executive incorporates into a Company product, process or machine a
Prior Invention owned by Executive or in which Executive has an
interest, the Company is hereby granted and shall have a nonexclusive,
royalty-free, irrevocable, perpetual, worldwide license to make, have
made, modify, use and sell such Prior Invention as part of or in
connection with such product, process or machine.
(b) Assignment of Inventions. Except as provided in Section 6.e below,
Executive agrees that he will promptly make full written disclosure to
the Company, will hold in trust for the sole right and benefit of the
Company, and hereby assign to the Company, or its designee, all
Executive's right, title, and interest in and to any and all
inventions, original works of authorship, developments, concepts,
improvements, designs, discoveries, ideas, trademarks or trade
secrets, whether or not patentable or registrable under copyright or
similar laws, which Executive may solely or jointly conceive or
develop or reduce to practice, or cause to be conceived or developed
or reduced to practice ("Inventions"), while Executive is employed by
the Company within the course and scope of employment. Executive
further acknowledges that all original works of authorship which are
made by Executive (solely or jointly with others) within the course
and scope of and during his employment with the Company and which are
protectible by copyright are "works made for hire", as that term is
defined in the United States Copyright Act. Executive understands and
agrees that the decision whether or not to commercialize or market any
invention developed by Executive solely or jointly with others is
within the Company's sole discretion and for the Company's sole
benefit and that no royalty will be due to Executive as a result of
the Company's efforts to commercialize or market any such invention.
(c) Maintenance of Records. Executive agrees to keep and maintain
adequate and current written records of all Inventions made by
Executive (solely or jointly with others) during Executive's
employment with the Company and subject to license or assignment under
Section 6.a or 6.b. The records will be in the form of notes,
sketches, drawings, and any other format that may be specified by the
Company. The records will be available to and remain the sole property
of the Company at all times.
(d) Patent and Copyright Registrations. Executive agrees to assist the
Company, or its designee, at the Company's expense, in every proper
way, to secure the Company's rights in the Inventions and any
copyrights, patents, mask work rights or other intellectual property
rights relating thereto in any and all countries.
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Executive will disclose to the Company all pertinent information and
data which is necessary for the execution of all applications,
specifications, oaths, assignments and all other instruments necessary
to apply for and obtain such rights and in order to assign and convey
to the Company, its successors, assigns, and nominees the sole and
exclusive rights, title and interest in and to such Inventions, and
any copyrights, patents, mask work rights, or other intellectual
property rights relating thereto. Executive further agrees that
Executive's obligation to execute or cause to be executed, when it is
in Executive's power to do so, any such instrument or papers shall
continue after the termination of this Agreement for a reasonable
duration. If the Company is unable, because of Executive's mental or
physical incapacity or for any other reason, to secure Executive's
signature to apply for or to pursue any application for any United
States or foreign patents or copyright registrations covering
Inventions or original works of authorship assigned to the company as
above, then Executive hereby irrevocably designates and appoints the
Company and its duly authorized officers and agents as Executive's
agent and attorney in fact, to act for and in Executive's behalf and
stead to execute and file any such applications and to do all other
lawfully permitted acts to further the prosecution and issuance of
letterspatent or copyright registrations thereon with the same legal
force and effect as if executed by Executive.
(e) Exception to Assignments. The provisions of this Agreement requiring
assignment of Inventions to the Company do not apply to any invention
which qualifies for protection or different treatment of ownership
under the provisions of any applicable state law. Executive will
advise the Company promptly in writing of any inventions that
Executive believes meet the criteria of any applicable state law which
affects ownership of Inventions.
7. Post-Termination Activity
a. Executive acknowledges that the pursuit of the activities forbidden by
this subsection would necessarily involve the use or disclosure of Proprietary
Information in breach of this Agreement, but that proof of such a breach would
be extremely difficult. To forestall this use or disclosure, Executive agrees
that, during the Severance Period (if any) or for a period of one year after the
Period of Employment, whichever is longer, Executive shall not, without the
prior written consent of the Company (i) divert or attempt to divert from the
Company any business of any kind in which the Company is then engaged; (ii)
employ, solicit for employment, or recommend for employment any person employed
by the Company (except where providing such job related references as are common
in the industry); or (iii) except as otherwise addressed in this Agreement,
accept employment with another company directly involved in developing the
technology in development for the Company at the time of Executive's termination
in any state in which the Company conducts its business. Notwithstanding
anything herein, however, Executive may (i) alone or in conjunction with others
seek to acquire ownership rights in the Company or a subsidiary and (ii) offer
employment to Humberto Reyes and/or Christine Evans.
b. In addition, because Executive acknowledges the difficulty of
establishing when any intellectual property, invention, or proprietary
information was first conceived or developed by Executive, or whether it
resulted from access to Proprietary Information or Company equipment, supplies,
facilities, or data, Executive agrees that any intellectual property, invention,
or proprietary information related to the development of ethical pharmaceuticals
shall be rebuttably presumed to be an Invention, if reduced to practice by
Executive or with the aid of
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Executive within one (1) year after termination of the Period of Employment.
Executive may rebut such presumption by producing evidence which establishes to
a preponderance that such intellectual property, invention, or proprietary
information was first conceived or developed by Executive after the termination
of the Period of Employment, or did not otherwise result from access to
Proprietary Information or Company equipment, supplies, facilities, or data.
8. Termination of Employment
(a) Termination by Company not for Cause. At any time, the Company may
terminate the Period of Employment for any reason other than for Cause
(as defined below) by providing Executive fourteen (14) days' advance
written notice. The Company shall pay to Executive all compensation
due and owing through the last day actually worked and Executive shall
be entitled to Severance in accordance with Section 9 below, subject
to the conditions therein. In the event Company terminates the Period
of Employment not for Cause, Executive shall be released from the
obligations of Section 7.a (iii) above. In addition, the Company may
decline to allow the renewal of the Agreement in accordance with
Section 2.b. above, regardless of the existence of Cause, but in such
case shall be obligated to provide only the benefits set forth in
Section 2.c above.
(b) Termination by Company for Cause. At any time, and without prior
notice, the Company may terminate the Period of Employment for Cause
(as defined below). The Company shall pay Executive all compensation
then due and owing through the last day actually worked. Executive
will not be entitled to Severance. "Cause" shall mean Executive's: (i)
Commission of a felony involving moral turpitude; (ii) Repeated
failure to perform services in accordance with the reasonable requests
of Company's Board within the course and scope of Executive's duties;
(iii) Commission of a material fraud, misappropriation, embezzlement
or other act of gross dishonesty which resulted in material loss,
damage or injury to the Company; or (iv) Death. Notwithstanding
anything herein, however, if the Period of Employment is terminated by
reason of the death of Executive, all unvested Options shall
immediately vest and shall be exercisable by Executive's estate or
heirs for two years thereafter, otherwise in accordance with the terms
of his applicable Stock Option Grants with the Company.
(c) By Executive Not for Good Reason. At any time, Executive may
terminate the Period of Employment for any reason other than Good
Reason (as defined below) by providing the Company fourteen (14) days'
advance written notice. The Company shall have the option, in its
complete discretion, to make termination of the Period of Employment
effective at any time prior to the end of such notice period, provided
the Company pays Executive all compensation due and owing through the
last day actually worked. Thereafter, all of the Company's obligations
under this Agreement shall immediately and forever cease, except for
those required by law, except for those which expressly survive
termination of this Agreement, and except that notwithstanding any
vesting or termination provisions contained in Executive's applicable
Stock Option Grants with the Company Executive's unvested Options
shall immediately vest upon such termination and Executive shall be
able to exercise his vested Options for one year thereafter, in
accordance with the terms of his applicable Stock Option Agreements.
Executive, however, will not be entitled to Severance.
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(d) By Executive for Good Reason. At any time, and without prior notice,
Executive may terminate the Period of Employment for Good Reason (as
defined below). The Company shall pay Executive all compensation due and
owing through the last day actually worked, and Executive shall be entitled
to Severance in accordance with Section 9 below, subject to the conditions
therein. Thereafter, all obligations of the Company and Executive under
this Agreement shall terminate, except for those which expressly survive
termination of this Agreement. Neither the Company's giving of notice of
termination in accordance with Section 2.b nor its termination of the
Period of Employment for Cause shall constitute "Good Reason" for Executive
to terminate the Period of Employment. "Good Reason" only shall exist if
the Company undertakes any of the following without Executive's prior
consent: (i) The assignment to Executive of any duties or responsibilities
which result in any material diminution or material adverse change of
Executive's position, status or circumstances of employment; a change in
Executive's titles or offices that results in any material diminution or
material adverse change of Executive's position, status or circumstances of
employment; or any removal of Executive from or any failure to re-elect
Executive to any of such positions, except in connection with the
termination of his employment for Cause, retirement, or any other voluntary
termination of employment by Executive other than a termination of
employment by Executive for Good Reason; (ii) A reduction by the Company in
Executive's base salary by greater than ten (10) percent; (iii) Any failure
by the Company to continue in effect any benefit plan or arrangement,
including incentive plans or plans to receive securities of the Company, in
which Executive is participating as of the date hereof (hereinafter
referred to as "Benefit Plans"), or the taking of any action by the Company
which would materially adversely affect Executive's participation in or
reduce Executive's benefits under the Benefit Plans or deprive Executive of
any fringe benefit enjoyed by Executive as in effect on the date hereof;
provided, however, that no termination of employment by Executive for Good
Reason shall be deemed to occur based upon this subsection 8.d (iii) if the
Company offers a range of benefit plans and programs which, taken as a
whole, are comparable to the Benefit Plans offered Executive before the
action; (iv) A relocation of the Executive, or the Company's principal
offices if Executive's principal office is at such offices, to a location
more than fifty (50) miles from the location at which Executive was
performing his duties as of the date hereof, except for required travel by
Executive on the Company's business to an extent substantially consistent
with Executive's business travel obligations as of the date hereof; (v) Any
material breach by the Company of any provision of this Agreement; (vi) Any
failure by the Company to obtain the assumption of this Agreement by any
successor or assign of the Company; (vii) Any directive to Executive to
perform any act which would expose him to personal legal liability or
which, viewed objectively, is likely to constitute an unethical act; or
(viii) Any conduct directed to Executive by Company or any condition under
which Executive works which constitutes constructive discharge under the
principles of the governing law.
9. Severance
(a) In the event that the Period of Employment is terminated in accordance
with Sections 8.a or 8.d hereof and Executive executes a waiver
agreement with terms modeled on the General Waiver of Claims, attached
hereto as Exhibit D (the
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"Waiver"), (i) the Company shall continue Executive's then current
base salary (so long as the then current base salary is no less than
the compensation set out in Section 4 of this Agreement) and COBRA
premiums in accordance with the Company's normal payroll procedures
for a period of twelve (12) months (the "Severance Period"); (ii) to
the extent practicable and legally permissible, the Company will
transfer Executive's disability and life insurance policies to
Executive upon termination; and (iii) notwithstanding any vesting or
termination provisions contained in Executive's applicable Stock
Option Grants with the Company Executive's unvested Options shall
immediately vest and Executive shall have two years from the date of
Executive's termination of employment to exercise his vested options
in accordance with the terms of the applicable Stock Option Agreements
with the Company (collectively, "Severance"). In the event the then
current base salary is less than the compensation set out in Section 4
of the Agreement, Executive shall be entitled to severance calculated
on the basis of the compensation set out in Section 4 of this
Agreement.
(b) Notwithstanding any other provision of this Agreement, Release I or
II, or the Waiver, at any time should Executive engage in or pursue
any of the activities described in Section 7 (except where advance
consent has been granted, or except where released from Section 7.a
(iii) by virtue of a Termination by Company not for Cause or by virtue
of a Termination by Executive for Good Reason) or should Executive not
fulfill his obligations in Section 10 below, the Company's obligation
to pay and Executive's entitlement to any Severance or Non-Renewal
Benefits shall immediately and forever cease.
10. Termination Obligations.
Executive agrees that his obligations under Sections 5 and 6 of this
Agreement survive the expiration of this Agreement.
11. Alternative Dispute Resolution
(a) The Company and Executive mutually agree that any controversy or claim
arising out of or relating to this Agreement or the breach thereof, or
any other dispute between the parties, shall be submitted to mediation
before a mutually agreeable mediator, which cost is to be borne
equally by the parties hereto. In the event the parties are unable to
agree upon a mediator, the mediator shall be Douglass Hamilton or such
person as Hamilton Mediation Inc. designates. In the event mediation
is unsuccessful in resolving the claim or controversy, such claim or
controversy shall be resolved by arbitration as described below. The
claims covered by this Agreement ("Arbitrable Claims") include, but
are not limited to, claims for wages or other compensation due; claims
for breach of any contract (including this Agreement) or covenant
(express or implied); tort claims; claims for discrimination
(including, but not limited to, race, sex, religion, national origin,
age, marital status, medical condition, or disability); claims for
benefits (except where an Executive benefit or pension plan specifies
that its claims procedure shall culminate in an arbitration procedure
different from this one), and claims for violation of any federal,
state, or other law, statute, regulation, or ordinance, except claims
excluded in the following paragraph. The parties hereto hereby waive
any rights they may have to trial by jury in regard to Arbitrable
Claims.
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(b) Claims Executive may have for workers' compensation or unemployment
compensation benefits are not covered by this Agreement. Also not
covered is either party's right to obtain provisional remedies or
interim relief from a court of competent jurisdiction for any claim or
controversy arising out of or related to the unauthorized use,
disclosure, or misappropriation of the confidential and/or proprietary
information of either party. Notwithstanding anything in this
Agreement to the contrary, however, should either party initiate
litigation in any court as authorized by this section, the other party
may assert any claims he or it may have as counterclaims or separate
claims in such court and shall not be obligated to resolve them by
mediation and/or arbitration.
(c) Except as provided in section 11.b, mediation and arbitration under
this Agreement shall be the exclusive remedy for all Arbitrable
Claims. The Company and Executive agree that arbitration shall be held
in or near Multnomah County, Oregon or such location as the parties
mutually agree upon, and shall be in accordance with the then current
Employment Dispute Resolution Rules of the American Arbitration
Association, before an arbitrator licensed to practice law in the
State of Oregon or such other forum as the parties have agreed upon.
The arbitrator shall have authority to award or grant legal,
equitable, and declaratory relief. Such arbitration shall be final and
binding on the parties. The Federal Arbitration Act shall govern the
interpretation and enforcement of this section pertaining to
Alternative Dispute Resolution. The parties shall use their best
efforts to agree upon an Arbitrator. If the parties are unable to
agree upon an Arbitrator within 14 days of either party requesting
arbitration of a dispute, the Arbitrator shall be designated by
Douglass Hamilton or Hamilton Mediation Inc.
(d) This Agreement to mediate and arbitrate survives termination of the
Period of Employment.
12. Miscellaneous
(a) Legal Fees. If any action at law or in equity, or arbitration, is
necessary to enforce or interpret the terms of this Agreement, to the
extent permitted by law, the prevailing party shall be entitled to
reasonable attorneys' fees, costs, and necessary disbursements, in
addition to any other relief to which the prevailing party may be
entitled.
(b) Entire Agreement. This Agreement (inclusive of exhibits and
attachments and incorporated documents) represents the entire
agreement and understanding between the parties regarding its subject
matter, and supersedes and replaces any and all prior agreements and
understandings regarding its subject matter.
(c) Amendments, Waivers. This Agreement may only be modified by a
subsequent written agreement executed by the Chief Executive Officer
of the Company (after approval of the Company's Board of Directors)
and Executive. Failure to exercise any right under this Agreement
shall not constitute a waiver of such right.
(d) Assignment; Successors and Assigns. This Agreement shall not be
assignable by either party without the express written consent of the
other.
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(e) Notices. All notices required or given herewith shall be addresses
designated above by registered mail, special delivery, or by certified
courier service. Executive shall notify Company in writing of any
change of address. Notice of change of address shall be effective
only when done in accordance with this Section.
(f) Severability; Governing Law. If any provision of this Agreement, or
its application to any person, place, or circumstance, is held by an
arbitrator or a court of competent jurisdiction to be invalid,
unenforceable, or void, such provision shall be enforced (by blue-
penciling or otherwise) to the greatest extent permitted by law, and
the remainder of this Agreement and such provision as applied to other
persons, places, or circumstances shall remain in full force and
effect. This Agreement will be governed by the laws of the State of
Oregon.
(g) Acknowledgment. Company and Executive acknowledge that they have been
afforded every opportunity to and have read this Agreement, are fully
aware of its contents and legal effect, and have chosen to enter into
this Agreement freely, without coercion, and based upon their own
judgment.
The parties have duly executed this Agreement as of the date first written
above.
EXECUTIVE
/s/ Ray R. Rogers
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Ray R. Rogers
COMPANY
OXIS International, Inc.
By: /s/ Stuart S. Lang
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Name: Stuart S. Lang
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Title: Chairman, Audit & Compensation
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Committee
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