This EMPLOYMENT AGREEMENT (this Agreement) is made as of March 10, 2017, by and between Adaptimmune, LLC (the Company), a limited liability corporation and wholly-owned subsidiary of Adaptimmune Limited, and Rafael Amado, an individual residing at 5 Ashwood Lane, Malvern, PA 19436 (Executive).
WHEREAS the Company and Executive desire to enter into this Agreement to establish and govern the terms and conditions of Executives employment by the Company;
NOW THEREFORE, in consideration of the promises and mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Employment. The Company agrees to employ Executive and the Executive agrees to provide services to the Company from March 16, 2015 (Commencement of Employment) until the termination of Executives employment hereunder pursuant to Section 5. The period from Commencement of Employment through the date of Executives termination of employment shall be referred to as the Employment Period.
2. Position and Duties.
(a) During the Employment Period, Executive shall serve as the Chief Medical Officer (CMO) of the Group and in such capacity shall have the normal duties, responsibilities, functions and authority of a CMO. During the Employment Period, Executive shall render such services to the Company which are consistent with Executives position and as the Chief Executive Officer and the Board may from time to time direct.
In this Agreement, the Board means the board of directors or the remuneration committee of such board of directors of Adaptimmune Therapeutics plc as applicable; Group means Adaptimmune Therapeutics plc and its subsidiaries from time to time and Group Company means a company which is a member of the Group and includes the Company.
(b) During the Employment Period, Executive shall report to the Chief Executive Officer and shall devote his best efforts and his full business time and attention to the business and affairs of the Company. Executive shall perform his duties, responsibilities and functions to the best of his abilities in a diligent, trustworthy, professional and efficient manner, shall comply with the policies and procedures of the Company and of Adaptimmune Therapeutics plc and shall comply with all applicable federal, state and/or local laws. In performing his duties and exercising his authority under this Agreement, Executive shall develop, support and implement the business and strategic plans approved from time to time by the Board. So long as Executive is employed by the Company, Executive shall not, without the prior written consent of the Board, accept other employment or perform other services for compensation which might reasonably be considered to interfere with the Executives duties under this Agreement. Notwithstanding the foregoing, nothing in this Agreement shall preclude the Executive from engaging in educational, charitable, political, professional and civic activities, provided that such engagement does not interfere with Executives duties and responsibilities hereunder.
(c) During the Employment Period, Executives primary work location shall be Philadelphia, Pennsylvania; provided, however, that Executive shall travel to other locations and countries as and when required by the Company including, but not limited to, travel to the Companys affiliate offices in the United Kingdom.
3. At-Will Relationship. Executives employment with the Company is at-will and not for any specified period and may be terminated by either Executive or the Company at any time for any or no reason, subject to Section 5 of this Agreement. Nothing in this Agreement is intended to or should be construed to contradict, modify or alter this at-will employment relationship.
4. Compensation and Benefits.
(a) Base Salary. During the Employment Period, Executives base salary initially, with effect from January 1, 2017, shall be $442,900 per annum, subject to periodic review by the Company (the Base Salary), and which shall be payable by the Company in regular installments in accordance with the Companys payroll practices in effect from time to time, less applicable deductions and withholding as required by law. For the avoidance of doubt, in any partial calendar year in the Employment Period, the Base Salary shall be prorated to reflect the period of time for which Executive is actually employed by the Company pursuant to this Agreement. During the Employment Period, the Base Salary shall be reviewed annually by the Company in accordance with the guidelines and procedures of the Company and any Group Company applicable to similarly situated executives.
(b) Bonus. Subject to the terms of the Executive Severance Policy of Adaptimmune Therapeutics plc, in force from time to time (the Executive Severance Policy), in addition to the Base Salary, Executive will be eligible to receive a bonus, determined by the Board, following the end of each calendar year that ends during the Employment Period (Annual Bonus), subject to: (i) objective criteria set forth by the Board or an authorized delegate thereof on an annual basis; and (ii) the overall performance of the Company and the Group. The initial target Annual Bonus with effect from January 1, 2017 shall be forty-five percent (45%) of Executives Base Salary. The Annual Bonus shall be pro-rated for any part year of employment and paid in a single lump sum no later than March 15, of the year following the calendar year in which the Annual Bonus, if any, was earned. For clarity the Executive will be eligible to receive an Annual Bonus for each calendar year where the objective criteria referred to in Section 4(b)(i) above are met unless as a result of the overall performance of the Company and any Group Company in any particular calendar year, the Board or an authorized delegate thereof determines that: (i) no annual bonuses (or equivalent payments) will be paid to any senior executives of the Company and/or any Group Company with respect to such calendar year, in which case the Annual Bonus will not be paid to the Executive; or (ii) reduced annual bonuses (or equivalent payments) will be paid to any senior executives of the Company and/or of any Group Company with respect to such calendar year, in which case the Annual Bonus payable to the Executive shall also be reduced.
Executive must be employed by the Company on December 31st of the calendar year on which the bonus is based in order to be eligible to receive the Annual Bonus. Any Annual Bonus payments shall be paid to Executive less applicable deductions and withholding as required by law. Nothing in this Agreement will preclude the Company from changing or altering the objective criteria referred to under Section 4(b)(i), in whole or in part, in the Companys sole discretion.
(c) Stock Options. In accordance with the rules of the Adaptimmune Therapeutics Limited 2015 Share Option Scheme, on March 16, 2015, Executive was granted an option over 3,600,000 ordinary shares of Adaptimmune Therapeutics Limited (subsequently Adaptimmune Therapeutics plc) at the fair market value as of the date of grant (Stock Options) on the following terms: (a) 25% of such Stock Options will vest on the first anniversary of Executives start date (being March 16, 2015) and the remaining 75% of such Stock Options will vest in equal monthly amounts over the following 36 months so that all Stock Options granted under the option agreement will have vested after four (4) years, unless vested sooner pursuant to this section 4(c); (b) any and all vested Stock Options will be exercisable for a period of no less than forty (40) days after the Executives employment is terminated for any reason; (c) in the event of a termination of Executives employment by the Company without Cause or by the Executive for Good Reason, any and all Stock Options unvested as of the date of termination shall vest and immediately become exercisable on date of termination; (d) in the event of a termination of Executives employment by the Company or by the Executive, in each case as a result of the Executives physical or mental illness, incapacity or disability, the Board, acting in good faith, shall assess Executives contribution to the Company and based on such assessment shall accordingly determine the number of
Stock Options that shall vest and immediately become exercisable on the date of termination; and (e) upon the date that a Change in Control occurs (the Change in Control Date) all of the Executives Stock Options that are unvested as of the Change in Control Date shall immediately vest and become immediately exercisable. The terms Cause, Good Reason and Change in Control are defined in the Executive Severance Policy. For the avoidance of doubt, where the Stock Options are no longer outstanding as of the date of termination of employment (including as a result of any lapse in connection with a Change in Control), they shall not become exercisable following the Executives termination by reason of this provision.
Executive has also participated in other award of options and, during the Employment Period, Executive shall be eligible to participate in the equity plans sponsored and/or maintained by the Company and its affiliates from time to time, in accordance with the terms of any such plans, at the sole and absolute discretion of the Company and the Board.
(d) Additional City Tax Compensation. The Company shall add to each payment of Base Salary and Annual Bonus an additional periodic payment in order to help defray Executives obligation to pay the Philadelphia City Tax (Additional City Tax Compensation). The Additional City Tax Compensation will be calculated in accordance with the Philadelphia City Tax rates, which will vary from time to time in accordance with the Philadelphia Wage Tax. The Additional City Tax Compensation shall be subject to applicable deductions and withholding as required by law.
(e) Employee Benefits. During the Employment Period, Executive shall be entitled to participate in all of the Companys then-existing employee benefit programs for which senior executive employees of the Company are generally eligible. Nothing in this Agreement will preclude the Company from changing, altering or terminating any of the plans or programs for which employees of the Company are eligible, in whole or in part, in the Companys sole discretion.
(f) Vacation. During the Employment Period, Executive shall receive paid vacation per calendar year (prorated to reflect the period of time for which Executive is actually employed by the Company pursuant to this Agreement), to be accrued and taken in accordance with the Companys then-existing vacation policies. Any accrued but unused vacation remaining at the end of the Employment Period shall be paid to Executive in accordance with the Companys payroll practices in effect at such time.
(g) Business Equipment. During the Employment Period, the Company shall provide Executive with specific equipment for business use in accordance with the Companys then-existing device policy (Business Equipment). The Company also agrees to pay reasonable related monthly service charges for the Business Equipment. Executive understands that the Business Equipment provided by the Company is for business use and will remain the property of the Company. Upon termination of employment or on demand by the Company at any time, Executive agrees to immediately return the Business Equipment without copying, deleting or otherwise modifying any data, documents or information stored on the Business Equipment.
5. Notice of Termination
(a) Notice of Termination. Subject to the terms of this Agreement, the Employment Period and Executives employment with the Company may be terminated by the Company immediately at any time and for any or no reason, and by Executive for any reason including but not limited to Good Reason, on provision of 60 days written notice. Any termination of employment by the Company or by Executive under this Section 5 shall be communicated by a written notice to the other party hereto indicating the specific termination provision in this Agreement relied upon (a Notice of Termination).
(b) The Executive Severance Policy as in force from time to time shall apply to Executive in relation to the Employment. Such policy may be amended or terminated in accordance with the terms of the policy, save that where any proposed amendment or termination substantially reduces the rights of Executive following the termination of Executives employment: (i) the Company will consult with
Executive on such proposed amendment or termination; and (ii) any such substantial reduction in the rights or benefits of Executive must be agreed with Executive. Where, following consultation, Executive does not agree to any such proposed amendment or termination, then the Executive Severance Policy shall continue in full force and effect without such proposed amendment or termination.
6. Confidential Information.
(a) Executive shall not, except as may be required to perform his duties hereunder or as required by applicable law, during the Employment Period and after employment ends (regardless of the reason), without limitation in time or until such information shall have become public other than by Executives unauthorized disclosure, disclose to others or use, whether directly or indirectly, any non-public confidential or proprietary information with respect to the Company and/or its subsidiaries and affiliates, including, without limitation, their business relationships, negotiations and past, present and prospective activities, methods of doing business, know-how, trade secrets, data, formulae, product designs and styles, product development plans, customer lists, investors, and all papers, resumes and records (including computer records) of the documents containing such information (Confidential Information). Executive stipulates and agrees that as between Executive and the Company the foregoing matters are important and that material and confidential proprietary information and trade secrets affect the successful conduct of the businesses of the Company and its subsidiaries and affiliates (and any successor or assignee of the Company or its subsidiaries and affiliates). Nothing about the foregoing shall preclude Executive from testifying truthfully in any forum or from providing truthful information to any government agency or commission.
(b) Executive agrees not to remove from the Companys premises any property of the Company including, but not limited to, documents, records, or materials containing any Confidential Information, except as necessary to perform his work for the Company.
(c) Executive agrees to deliver or return to the Company, at the Companys request at any time or upon termination of his employment (regardless of the reason): (i) all documents, computer tapes and disks, records, lists, data, drawings, prints, notes and written information (and all copies thereof) furnished by or on behalf of or for the benefit of the Company or its subsidiaries or affiliates or prepared by Executive during the term of his employment by the Company, regardless of whether Confidential Information is contained therein; and (ii) all physical property of the Company or its subsidiaries or affiliates which Executive received in connection with Executives employment with the Company including, without limitation, credit cards, passes, door and file keys, and computer hardware and software existing in tangible form.
7. Work Product and Intellectual Property, Inventions and Patents.
(a) For purposes of this Agreement, Work Product shall include (i) all works, materials, ideas, innovations, inventions, discoveries, techniques, methods, processes, formulae, compositions, developments, improvements, technology, know-how, algorithms, data and data files, computer process systems, computer code, software, databases, hardware configuration information, research and development projects, experiments, trials, assays, lab books, test results, specifications, formats, designs, drawings, blueprints, sketches, artwork, graphics, documents, records, writings, reports, machinery, prototypes, models, sequences, and components; (ii) all tangible and intangible embodiments of the foregoing, of any kind or format whatsoever, including in printed and electronic media; and (iii) all Intellectual Property Rights (as defined below) associated with or related to the foregoing.
Company Work Product shall include all Work Product that Executive partially or completely creates, makes, develops, discovers, derives, conceives, reduces to practice, authors, or fixes in a tangible medium of expression, whether solely or jointly with others and whether on or off the Companys premises, in connection with the Companys business (w) while employed by the Company, or (x) with the use of the time, materials, or facilities of the Company or its affiliates, or (y) relating to any product, service, or activity of the Company or its affiliates of which Executive has knowledge, or (z) suggested by or resulting from any work performed by Executive for the Company or its affiliates.
(b) For purposes of this Agreement, Intellectual Property Rights means any and all worldwide rights, title, or interest existing now or in the future under patent law, trademark law, copyright law, industrial rights design law, moral rights law, trade secret law, and any and all similar proprietary rights, however denominated, and any and all continuations, continuations-in-part, divisions, renewals, reissue, reexaminations, extensions and/or restorations thereof, now or hereafter in force and effect, including without limitation all patents, patent applications, industrial rights, mask works rights, trademarks, trademark applications, trade names, slogans, logos, service marks and other marks, copyrightable material, copyrights, copyright applications, moral rights, trade secrets, and trade dress.
(c) Executive acknowledges and agrees that all Company Work Product is and shall belong to the Company. Executive shall and hereby does irrevocably assign and transfer to the Company all of Executives right, title, and interest in and to all Company Work Product, which assignment shall be effective as of the moment of creation of such Company Work Product without requiring any additional actions of the parties.
(d) All copyrightable material included in Company Work Product that qualifies as a work made for hire under the U.S. Copyright Act is deemed a work made for hire created for and owned exclusively by the Company, and the Company shall be deemed the owner of the copyright and all other Intellectual Property Rights associated therewith.
(e) To the extent any of the rights, title, and interest in and to Company Work Product cannot be assigned by Executive to the Company, Executive hereby grants to the Company a perpetual, exclusive, royalty-free, transferable, assignable, irrevocable, worldwide license (with rights to sublicense through multiple tiers of sublicensees) to practice such non-assignable rights, title, and interest. To the extent any of the rights, title, and interest in and to Company Work Product can neither be assigned nor licensed by Executive to the Company, Executive hereby irrevocably waives and agrees never to assert such non-assignable and non-licensable rights, title, and interest against the Company or its affiliates, or its and their directors, officers, agents, employees, contractors, successors, or assigns. For the avoidance of doubt, this Section 7(e) shall not apply to any Work Product that (i) does not relate, at the time of creation, making, development, discovery, derivation, conception, reduction to practice, authoring, or fixation in a tangible medium of expression of such Work Product, to the Companys business or actual or demonstrably anticipated research, development or business; and (ii) was developed entirely on Executives own time; and (iii) was developed without use of any of the Companys equipment, supplies, facilities, or trade secret information; and (iv) did not result from any work Executive performed for the Company.
(f) Executive agrees, represents, and warrants that to the extent any Prior Work Product exists relating in any way to the Companys existing business, or demonstrably anticipated research and development or future business, which was created, made, developed, discovered, derived, conceived, reduced to practice, authored, or fixed in a tangible medium of expression by Executive prior to Executives employment with the Company (collectively, the Prior Work Product) the Executive shall notify the Company of such Prior Work Product and obtain the Companys prior written consent prior to using in any way the Prior Work Product during the course of the Executives employment with the Company. Executive agrees, represents, and warrants that Executive has no rights in or to any Work Product related to Executives employment with the Company, or to the Company and its affiliates generally, other than the Prior Work Product. Executive hereby grants to the Company a perpetual, royalty-free, irrevocable, worldwide, fully paid-up license (with rights to transfer, assign, and sublicense through multiple tiers of sublicensees) to practice all Intellectual Property Rights relating to any Prior Work Product that Executive uses, incorporates, or permits to be incorporated, in any Company Work Product. Notwithstanding the foregoing, Executive will not use, incorporate, or permit to be incorporated, any Prior Work Product in any Company Work Product without the Companys prior written consent.
(g) Executive agrees, during and after Executives employment, to assist the Company, its affiliates, and its and their successors, assigns, delegates, nominees, and legal representatives with all acts that the Company deems necessary or desirable to permit and assist the Company in applying for, obtaining, perfecting, protecting, and enforcing the full benefits, enjoyment,
rights, and title throughout the world of the Company in and to all Company Work Product, which acts and assistance may include, without limitation, the signing and execution of documents (at no cost to the Company) and assistance or cooperation in the filing, prosecution, registration, and memorialization of assignment of any applicable Intellectual Property Rights; acts pertaining to the enforcement of any applicable Intellectual Property Rights; and acts pertaining to other legal proceedings related to Company Work Product. If the Company is unable for any reason to secure Executives signature to any document that the Company deems necessary or desirable to permit and assist the Company in applying for, obtaining, perfecting, protecting, and enforcing the full benefits, enjoyment, rights and title throughout the world of the Company in and to all Company Work Product, Executive hereby irrevocably designates and appoints the Company, its officers, and directors as Executives attorney in fact to sign and execute such documents in Executives name, all with the same legal force and effect as if executed by Executive. This designation of power of attorney is a power coupled with an interest and is irrevocable. Executive will not retain any proprietary interest in any Company Work Product and shall not register, file, seek to obtain, or obtain any Intellectual Property Rights covering any Company Work Product in his own name.
(h) Executive agrees to disclose and describe to the Company promptly and in writing to the Company all Company Work Product to which the Company is entitled as provided above. Executive shall deliver all Company Work Product in Executives possession whenever the Company so requests, and, in any event, prior to or upon Executives termination of employment. After the Company confirms receipt of Company Work Product, Executive shall delete or destroy all Company Work Product in Executives possession whenever the Company so requests and at the Companys reasonable direction, without retaining any copies thereof, and, in any event, prior to or upon Executives termination of employment.
(i) Consistent with Executives obligations under Section 6, Executive shall hold in the strictest confidence, and will not disclose, furnish or make accessible to any person or entity (directly or indirectly) Company Work Product, except as required in accordance with Executives duties as an employee of the Company.
(j) For the avoidance of doubt, Executive shall not be entitled to any additional or special compensation or reimbursement in fulfilling his obligations under this Section 7, except that the Company, in its sole discretion, may reimburse Executive for any reasonable expenses which Executive may incur on behalf of the Company.
8. Immunity under Defend Trade Secrets Act of 2016
The Defend Trade Secrets Act of 2016 (the Act) provides that: (1) An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that: (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. The Act further provides that: an individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual: (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.
9. Non-Competition; Non-Solicitation.
(a) Non-Competition. During the Employment Period and for a period of twelve (12) months thereafter (the Restricted Period), Executive shall not, without the prior written consent of the Board, directly or indirectly, whether as owner, consultant, employee, partner, venturer, agent, through stock ownership, investment of capital, lending of money or property, rendering of services, or otherwise, engage or participate in a Competitive Business operating within the Restricted Area.
As used in this Agreement, the term Competitive Business means any firm or business organization that competes with the Company or any affiliated company in the business of developing, designing, testing, marketing, selling, distributing or manufacturing products or services involving the use of T cell receptors in T cell therapy to treat or diagnose human disease. Notwithstanding the foregoing, Executive may own up to one percent (1%) of the outstanding stock of a publicly held corporation which constitutes or is affiliated with a Competitive Business. As used in this Agreement, the term Restricted Area means the United States and the United Kingdom.
(b) Agreement Not to Solicit Executives. During the Restricted Period, the Executive shall not, directly or indirectly (through another person, entity or otherwise): (i) solicit, induce or attempt to induce any executive of the Company or any affiliated company to leave the employ of the Company or affiliated company, or in any way interfere with the relationship between the Company or affiliated company and any Executive thereof, or (ii) hire any person who is/was an executive of the Company or affiliated company, at any time during the Restricted Period as an Executive, consultant or otherwise.
(c) Non-Solicitation of Others. During the Employment Period and the Restricted Period, Executive shall not, directly or indirectly (through another person, entity or otherwise): (i) contact, solicit or accept the business of any customer, vendor or client of the Company or affiliated company for any reason except for non-competing purposes unrelated to the use of T cell receptors in T cell therapy to treat or diagnose human disease; or (ii) induce or seek to influence any customer, vendor or client of the Company or affiliated company to discontinue, modify or reduce its business relationship with the Company or affiliated company for any reason.
(d) If, at the time of enforcement of Section 6, 7 or 9 of this Agreement, a court shall hold that the duration, scope or geographical area restrictions stated herein are unreasonable under circumstances then existing, the parties hereto agree that the maximum duration, scope or geographical area reasonable under such circumstances shall be substituted for the stated duration, scope or area and that the court shall be allowed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by law.
(e) Executive acknowledges and agrees that the restrictive covenants contained herein (i) are necessary for the reasonable and proper protection of the goodwill of the Company and its trade secrets, proprietary data and confidential information, (ii) are reasonable with respect to length of time, scope and geographic area and (iii) will not prohibit Executive from engaging in other businesses or employment for the purpose of earning a livelihood following the termination of his relationship with the Company.
(f) Injunctive Relief. The Executive acknowledges and agrees that (i) the Companys remedies at law for a breach or threatened breach of any of the provisions of Sections 6, 7 and 9 would be inadequate and, in recognition of this fact, the Executive agrees that, in the event of such a breach or threatened breach, in addition to any remedies at law, the Company, without posting any bond, will be entitled to obtain equitable relief in the form of specific performance, temporary restraining order, temporary or permanent injunction or any other equitable remedy which may then be available in the event of the termination of Executives employment with the Company, (ii) the Executives experience and capabilities are such that Executive can obtain employment in a field of employment that would not breach Executives covenants under this Agreement, and the enforcement of this Agreement by way of injunction will not cause Executive undue hardship or prevent Executive from earning a livelihood, and (iii) the nature of the Companys business is worldwide in scope. Executive acknowledges that any claim or cause of action against Company shall not constitute a defense to the enforcement by Company of Executives covenants in Sections 6, 7 and 9 of this Agreement. In the event that Executive violates any of the covenants in this Agreement and the Company prevails in any legal action for injunctive or other relief, the Company shall have the benefit of the full period of the covenants such that the covenants shall have the duration of one year computed from the date the Executive ceased violation of the covenants, either by order of the court or otherwise. In the event that, notwithstanding the foregoing, any of the provisions in Sections 6, 7 and 9 shall be held to be invalid or unenforceable, the remaining provisions of such Sections shall nevertheless continue to be valid and enforceable as though the invalid or
unenforceable parts had not been included in such Sections. In the event that any provision of such Sections relating to the time period and/or the areas of restriction and/or related aspects shall be declared by a court of competent jurisdiction to exceed the maximum restrictiveness such court deems reasonable and enforceable, the time period and/or areas of restriction and/or related aspects deemed reasonable and enforceable by the court shall become and be the maximum restriction in such regard, and the restriction shall remain enforceable to the fullest extent deemed reasonable by such court. In the event of a breach by Executive of any provision of Sections 6, 7 and 9 of this Agreement, Companys obligations under this Agreement shall immediately terminate and Executive shall not be entitled to any additional monetary payments of any kind whatsoever.
10. Executives Representations and Covenants. Executive hereby represents and warrants to the Company that: (i) the execution, delivery and performance of this Agreement by Executive do not and shall not conflict with, breach, violate or cause a default under any contract, agreement, instrument, order, judgment or decree to which Executive is a party or by which he is bound; (ii) Executive is not a party to or bound by any employment agreement, non-compete agreement or confidentiality agreement with any other person or entity; (iii) upon the execution and delivery of this Agreement by the Company, this Agreement shall be the valid and binding obligation of Executive, enforceable in accordance with its terms; and (iv) Executive is authorized to work in the United States without restriction. Executive hereby acknowledges and represents that he has been made aware of his right to consult with independent legal counsel regarding his rights and obligations under this Agreement and that he fully understands the terms and conditions contained herein. Executive further covenants that he shall not make any statements, other than pursuant to the performance of his job duties and responsibilities, to the press or other media in connection with the Company and/or any affiliated company at any time either during or after the Employment Period without the prior consent of the Chief Executive Officer.
(a) Executive hereby certifies to the Company that, as provided in Section 306(a) and Section 306(b) of the U.S. Federal Food, Drug and Cosmetic Act (21 U.S.C. SS 335a(a) and 335a(b)) and/or under any equivalent law within or outside the United States, Executive has not in the past been and/or is not currently (or threatened to be or subject to any pending action, suit, claim investigation or administrative proceeding which could result in Executive being) (i) debarred or (ii) excluded from participation in any federally funded healthcare program or (iii) otherwise subject to any governmental sanction in any jurisdiction (including disqualification from participation in clinical research) that would affect or has affected Executives ability to perform Executives obligations under this Agreement, or Executives employment with the Company or prevent Executive from working for the Company in any capacity in any jurisdiction.
(b) Executive hereby confirms that Executive is not on any of the following exclusion lists: (a) Food and Drug Administration Debarment List; (b) General Services Administration Excluded Parties List System; or (c) Office of Inspector General List of Excluded Individuals/Entities. Executive warrants and represents to the Company that Executive will notify the Company immediately if any of the foregoing occurs or is threatened. Executive confirms that, following the termination of Executives employment with the Company for any reason he will notify the Company of his inclusion on the exclusion lists referenced above, or the threat of such inclusion, solely where such inclusion or the threat of such inclusion arises in connection with Executives employment with the Company. Any violation of this section by Executive may result in the withdrawal of the offer of engagement or the termination of Executives employment with the Company. While employed by the Company, Immediately upon the request of the Company at any time, Executive will certify to the Company in writing Executives compliance with the provisions of this section. Executive hereby confirms that Executive understands that the Company will verify the information the Executive certifies under this Agreement. Falsified or incorrect information provided by the Executive may result in the withdrawal of the offer of engagement or the termination of Executives employment with the Company.
12. Survival. Sections 5 through 23, inclusive, shall survive and continue in full force in accordance with their terms notwithstanding the termination of the Employment Period.
13. Notices. Any notice provided for in this Agreement shall be in writing and shall be either personally delivered, sent by reputable overnight courier service or mailed by first class mail, return receipt requested, to the recipient at the address below indicated:
Notices to Executive:
at such address as most currently appears in the records of the Company
Notices to the Company:
351 Rouse Boulevard
Attention: Chief Executive Officer
or such other address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party. Any notice under this Agreement shall be deemed to have been given when so delivered, sent or mailed.
14. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement or any action in any other jurisdiction, but this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.
15. Complete Agreement. This Agreement, those documents expressly referred to herein and other documents of even date herewith embody the complete agreement and understanding among the parties and supersede and preempt any prior understandings, agreements or representations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.
16. No Strict Construction. The language used in this Agreement shall be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction shall be applied against any party.
17. Counterparts. This Agreement may be executed in separate counterparts (including by means of telecopied signature pages or electronic transmission in portable document format (pdf)), each of which is deemed to be an original and all of which taken together constitute one and the same agreement.
18. Successors and Assigns. This Agreement, including, but not limited to, the terms and conditions in Sections 6, 7 and 9, shall inure to the benefit of, and be binding upon, the heirs, executors, administrators, successors and assigns of the respective parties hereto, but in no event may Executive assign or delegate to any other party Executives rights, duties or obligations under this Agreement. Executive further hereby consents and agrees that the Company may assign this Agreement (including, but not limited to, Sections 6, 7 and 9) and any of the rights or obligations hereunder to any third party in connection with the sale, merger, consolidation, reorganization, liquidation or transfer, in whole or in part, of the Companys control and/or ownership of its assets or business. In such event, Executive agrees to continue to be bound by the terms of this Agreement.
19. Choice of Law. All issues and questions concerning the construction, validity, enforcement and interpretation of this Agreement and the exhibits and schedules hereto shall be governed by, and construed in accordance with, the laws of the Commonwealth of Pennsylvania, without giving effect to any choice of law or conflict of law rules or provisions (whether of the Commonwealth of Pennsylvania or
any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the Commonwealth of Pennsylvania.
20. Amendment and Waiver. The provisions of this Agreement may be amended or waived only with the prior written consent of the Company and Executive, and no course of conduct or course of dealing or failure or delay by any party hereto in enforcing or exercising any of the provisions of this Agreement (including, without limitation, the Companys right to terminate the Employment Period with or without Cause) shall affect the validity, binding effect or enforceability of this Agreement or be deemed to be an implied waiver of any provision of this Agreement.
21. Insurance. The Company may, at its discretion, apply for and procure in its own name and for its own benefit life and/or disability insurance on Executive in any amount or amounts considered advisable. Executive agrees to cooperate in any medical or other examination, supply any information and execute and deliver any applications or other instruments in writing as may be reasonably necessary to obtain and constitute such insurance.
22. Agreement to Arbitrate.
(a) Notwithstanding any express provision to the contrary, Executive and the Company agree that any claim, controversy or dispute between Executive and the Company (including without limitation the Companys affiliates, officers, executives, representatives, or agents) arising out of or relating to this Agreement, the employment of Executive, the cessation of employment of Executive, or any matter relating to the foregoing shall be submitted to and settled by arbitration before a single arbitrator in a forum of the American Arbitration Association (AAA) located in Philadelphia, Pennsylvania, and conducted in accordance with the National Rules for the Resolution of Employment Disputes. In such arbitration: (i) the arbitrator shall agree to treat as confidential evidence and other information presented by the parties to the same extent as Confidential Information under this Agreement must be held confidential by the Executive; (ii) the arbitrator shall have no authority to amend or modify any of the terms of this Agreement; and (iii) the arbitrator shall have ten (10) business days from the closing statements or submission of post-hearing briefs by the parties to render his decision.
(b) All AAA-imposed costs of said arbitration, including the arbitrators fees, if any, shall be borne by the Company. All legal fees incurred by the parties in connection with such arbitration shall be borne by the party who incurs them, unless applicable statutory authority provides for the award of attorneys fees to the prevailing party and the arbitrators decision and award provides for the award of such fees.
(c) Any arbitration award shall be final and binding upon the parties, and any court having jurisdiction may enter a judgment on the award. The foregoing requirement to arbitrate claims, controversies, and disputes applies to all claims or demands by the Executive, including without limitation, any rights or claims the Executive may have under the Age Discrimination in Employment Act of 1967, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1991, the Equal Pay Act, the Family and Medical Leave Act or any other federal, state or local laws or regulations pertaining to the Executives employment or the termination of the Executives employment.
(d) All claims must be arbitrated, with the limited exception of claims for violations of Sections 6, 7 and 9 of this Agreement. In the event of an alleged breach of Sections 6, 7 or 9 of this Agreement by Executive, the Company has the option to elect between arbitration and a judicial forum.
23. Corporate Opportunity. Executive acknowledges that all Corporate Opportunities are for the benefit of the Company and that Executive would be in breach of his duties to the Company if Executive accepted or pursued, directly or indirectly, any Corporate Opportunity on Executives own behalf.
As used in this Agreement, the term Business means the business of developing, designing, testing, marketing, selling, distributing or manufacturing products or services involving the use of T cell therapy to
treat or diagnose human disease and/or any further associated business that may be developed by the Company or any of its affiliates of which Executive is aware; the term Corporate Opportunities means business, commercial and investment opportunities or offers presented to Executive or of which Executive becomes aware (including in Executives capacity as agent, employee, director of officer of the Company) at any time during the Employment Period and which relate to the Business.
24. Executives Cooperation. During the Employment Period, Executive shall reasonably cooperate with the Company and its affiliates or subsidiaries in any internal investigation or administrative, regulatory or judicial proceeding as reasonably requested by the Company (including, without limitation, Executives being reasonably available to the Company upon reasonable notice for interviews and factual investigations, appearing at the Companys reasonable request to give testimony without requiring service of a subpoena or other legal process, volunteering to the Company all pertinent information and turning over to the Company all relevant documents which are or may come into Executives possession, all at times and on schedules that are reasonably consistent with Executives other permitted activities and commitments) at reasonable times. In the event the Company requires Executives cooperation in accordance with this Section 24, the Company shall reimburse Executive solely for reasonable travel expenses (including lodging and meals, upon submission of receipts). Nothing about the foregoing shall preclude Executive from testifying truthfully in any forum or from providing truthful information to any government agency or commission.
25. 409A Compliance.
(a) The intent of the parties is that payments and benefits under this Agreement comply with Section 409A and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. In no event shall the Company or its subsidiaries or affiliates be liable for any additional tax, interest or penalty that may be imposed on Executive under Section 409A or damages for failing to comply with Section 409A.
(b) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a separation from service within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a termination, termination of employment or like terms shall mean separation from service.
(c) To the extent that reimbursements or other in-kind benefits under this Agreement constitute nonqualified deferred compensation for purposes of Section 409A: (i) all such expenses or other reimbursements hereunder shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by the Executive; (ii) any such right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit; and (iii) no such reimbursement, expenses eligible for reimbursement, or in-kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year.
(d) For purposes of Section 409A, the Executives right to receive any installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments.
(e) Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment under this Agreement that constitutes nonqualified deferred compensation for purposes of Section 409A be subject to offset by any other amount unless otherwise permitted by Section 409A.