Executive Agreement - Trimeris Inc. and Robert R. Bonczek
EXECUTIVE AGREEMENT
THIS AGREEMENT is made and entered into this the 7th day of January,
2000, by and between TRIMERIS, Inc., a Delaware corporation (the "Company"), and
ROBERT R. BONCZEK ("Bonczek").
W I T N E S S E T H:
WHEREAS, Bonczek and the Company deem it to be in their respective best
interests to enter into an agreement providing for the Company's appointment of
Bonczek as an officer of the Company pursuant to the terms herein stated;
NOW, THEREFORE, in consideration of the premises and the mutual
promises and agreements contained herein, it is hereby agreed as follows:
1. Effective Date. This Agreement shall be effective as of the 2nd day of
September, 1999, which date shall be referred to herein as the
"Effective Date".
2. Position and Duties.
(a) The Company hereby appoints Bonczek as its Acting Chief
Administrative Officer and Acting Chief Financial Officer commencing as
of the Effective Date for the "Term" (as herein defined below). In this
capacity, Bonczek shall devote his best efforts and attention to the
performance of the services customarily incident to such offices and
positions and to such other services of a senior executive nature as
may be reasonably requested by the Chief Executive Officer (CEO) and
Chief Scientific Officer (CSO) of the Company which may include
services for one or more subsidiaries or affiliates of the Company.
Bonczek shall in his capacity as an officer of the Company be
responsible to and obey the reasonable and lawful directives of the CEO
and CSO. Bonczek shall use his best efforts during the Term to protect,
encourage, and promote the interests of the Company.
(b) The Company and Bonczek agree that the position, salary
and duties outlined in subsection 2(a) above and subsections 3(a) and
(b) below are transitional in nature. The Company, in its sole
discretion, shall have the ability to reassign Bonczek to other duties
or offices (including a reassignment to a lesser role), to reduce
Bonczek's salary or to change Bonczek's position or title at any time
without Bonczek's consent, provided that:
(i) In the case of a reassignment or change of
position or title in which Bonczek remains an officer of the
Company, such reassignment or change of position or title
leaves Bonczek in a position at least comparable to Bonczek's
status and compensation under the Initial Consulting Agreement
between Bonczek and Company dated August 25, 1997 and as
amended on January 23, 1998 and April 28, 1999 (the "Initial
Consulting Agreement"); and
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(ii) In the case of a reassignment or change of
position or title in which Bonczek is no longer an officer of
the Company, such reassignment or change of position or title
leaves Bonczek in a position at least comparable to Bonczek's
status and compensation under the Initial Consulting Agreement
for a period of at least twenty-four (24) full months
following the reassignment or change (the "Protected Period").
The Company and Bonczek agree that any such reassignment, reduction of
salary or change in position or title permitted under this paragraph (a
"Permitted Reassignment") shall not entitle Bonczek to the payment of
severance benefits under the Severance Agreement (as herein defined
below).
3. Compensation.
(a) Base Salary. The Company shall pay to Bonczek during the
Term a minimum salary at the rate of Two Hundred Ten Thousand dollars
($210,000.00) per year and agrees that such salary shall be reviewed at
least annually. Such salary shall be subject to discretionary annual
increases as determined by the Compensation Committee of the Board of
Directors. Such salary shall be payable monthly and in accordance with
the Company's normal payroll procedures. (Bonczek's annual salary, as
set forth above or as it may be increased from time to time as set
forth herein, shall be referred to hereinafter as "Base Salary").
(b) Performance Bonus. In addition to the compensation
otherwise payable to Bonczek pursuant to this Agreement, Bonczek shall
be eligible to receive an annual bonus ("Bonus") pursuant to a
performance bonus plan (the "Bonus Plan") which may be established by
the Company for its senior executive officers and which shall provide
for bonus compensation to be payable based upon the financial and other
performance of the Company and Bonczek. Bonczek's Bonus shall be in an
amount up to forty-five percent (45%) of his Base Salary, provided that
the Company, in computing Bonczek's annual bonus, shall have the right
to make such adjustments as it may deem appropriate to reflect any
mid-year changes in Bonczek's salary or position pursuant to subsection
2(b) above.
(c) Long Term Stock Options. The Company has recommended that
the Compensation Committee of the Board grant Bonczek nonqualified
stock options to purchase One Hundred Thousand (100,000) shares of the
Company's common stock at a price equal to the fair market value of the
common stock on the date of grant, vesting monthly in an equal number
of shares over a period of four (4) years beginning August 17, 1999,
and further subject to the terms set forth in this paragraph. Such
options shall continue to vest so long as Bonczek remains an officer or
on the payroll of the Company. In the event of termination of both
Bonczek's appointment as an officer and on the payroll of the Company,
no additional options shall vest, but stock options previously vested
shall remain exercisable in accordance with the option agreement.
Notwithstanding the foregoing, if Bonczek's is terminated under
circumstances entitling Bonczek to severance benefits under the
Severance Agreement (as herein defined below), Bonczek's options shall
continue to vest during the Continuation Period (as defined in the
Severance Agreement) following termination in accordance with the
vesting schedule set
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forth in this paragraph and the option agreement, and shall remain
exercisable for the remainder of the option term. All options will be
subject to the terms and conditions of the Trimeris, Inc. Amended and
Restated Stock Incentive Plan.
(d) Relocation Expenses. If Bonczek decides to relocate his
primary residence to the Raleigh/Durham/Chapel Hill area during the
term of this Agreement, the Company shall reimburse Bonczek for all
conventional and reasonable relocation expenses. In addition, the
Company shall also pay Bonczek an additional amount of up to
Twenty-Five Thousand dollars ($25,000.00) for miscellaneous expenses
and charges not capable of being itemized.
(e) Reimbursement of Lost Income. In consideration of Bonczek
forgoing the supplemental income and career enhancement opportunities
normally attendant to him, Company agrees to award Bonczek upon
execution of this Agreement, a one time payment of Sixteen Thousand
dollars ($16,000.00).
4. Benefits During the Term.
(a) During the Term, Bonczek shall not be eligible to
participate in any life, health and long-term disability insurance
programs, pension and retirement programs, stock option and other
incentive compensation programs, and other fringe benefit programs made
available to senior executive employees of the Company from time to
time. However, Bonczek shall be entitled to receive such other fringe
benefits as may be granted to him from time to time by the Company's
Board of Directors.
(b) During the Term, Bonczek shall be allowed four (4) weeks
of vacation with pay and leaves of absence with pay.
(c) During the Term, the Company shall reimburse Bonczek for
reasonable business expenses incurred in performing Bonczek's duties
and promoting the business of the Company, including, but not limited
to, reasonable entertainment expenses, travel and lodging expenses,
following presentation of documentation in accordance with the
Company's business expense reimbursement policies.
5. Term; Termination. As used herein, the phrase "Term" shall mean the
period commencing on the Effective Date and ending on the same date two (2)
years later; provided, however, that as of the expiration date of each of (i)
the initial Term and (ii) if applicable, any Renewal Period (as defined below),
the Term shall automatically be extended for a two (2) year period (each a
"Renewal Period") unless either the Company or Bonczek provides two (2) months'
written notice to the contrary. Notwithstanding the foregoing, the Term shall
expire on the first to occur of the following:
(a) Reassignment. The Company may, at any time and without
prior notice, terminate Bonczek's appointment as an officer for the
purpose of reassigning Bonczek to a lesser capacity so long as such
reassignment satisfies the conditions of a Permitted Reassignment
pursuant to subsection 2(b)(ii) of this Agreement. Upon such Permitted
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Reassignment, Bonczek's Term hereunder shall expire on the last day of
the Protected Period.
(b) Termination by the Company. Notwithstanding anything to
the contrary in this Agreement, whether express or implied, the Company
may, at any time, terminate Bonczek's appointment (as an officer or
otherwise) for any reason other than Cause, Death or Disability by
giving Bonczek at least 60 days' prior written notice of the effective
date of termination. Company may terminate Employee's appointment (as
an officer or otherwise) for Cause, Death or Disability without prior
notice, except that Bonczek may not be terminated for substantial and
willful failure to perform specific and lawful directives of the CEO
and CSO, as reasonably determined by the CEO and CSO, unless and until
the CEO and CSO has given him reasonable written notice of his intended
actions and specifically describing the alleged events, activities or
omissions giving rise thereto and with respect to those events,
activities or omissions for which a cure is possible, a reasonable
opportunity to cure such breach; and provided further, however, that
for purposes of determining whether Cause is present, no act or failure
to act by Bonczek shall be considered "willful" if done or omitted to
be done by Bonczek in good faith and in the reasonable belief that such
act or omission was in the best interest of the Company and/or required
by applicable law. The terms "Cause" and "Disability" shall have the
meaning given them under the Severance Agreement.
(c) Termination by Bonczek. In the event that Bonczek's
appointment (as an officer or otherwise) with the Company is
voluntarily terminated by Bonczek, the Company shall have no further
obligation hereunder from and after the effective date of termination
except as may be provided in the Severance Agreement (as herein defined
below) and the Company shall have all other rights and remedies
available under this Agreement or any other agreement and at law or in
equity. Bonczek shall give the Company at least 30 days' advance
written notice of his intention to terminate his appointment hereunder.
(d) Salary and Benefits Upon Termination. In the event of
termination of appointment (as an officer or otherwise), Bonczek shall
receive all regular Base Salary due up to the date of termination, and
if it has not previously been paid to Bonczek, Bonczek shall be paid
any Bonus to which Bonczek had become entitled under the Bonus Plan
prior to the effective date of such termination and the Company shall
have no further obligation hereunder from and after the effective date
of termination except as may be provided in the Severance Agreement and
the Company shall have all other rights and remedies available under
this Agreement or any other agreement and at law or in equity.
Bonczek's stock options with respect to the Company's stock shall be
subject to the terms of the Trimeris, Inc. Amended and Restated Stock
Incentive Plan and applicable option agreements thereunder, or any
successor plans and agreements, which are not part of this Agreement.
Bonczek's right to severance benefits, if any, shall be governed by the
terms of the Separation and Severance Agreement attached hereto as
Exhibit B (the "Severance Agreement"); provided, however, Bonczek,
shall be entitled to de novo review of any material violation
of the Severance Agreement, or denial of any claim, or eligibility for
any claim thereunder exclusively as provided in the Resolution of
Dispute provisions of Section 12 of this Agreement.
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(e) Agreement. The Severance Agreement is incorporated in this
Agreement by reference and is hereby made a part of this Agreement as
if fully set forth herein.
6. Confidential Information, Non-Solicitation and Non-Competition.
(a) During the Term and at all times thereafter, Bonczek shall
not, except as may be required to perform his duties hereunder or as
required by applicable law, disclose to others or use, whether directly
or indirectly, any Confidential Information regarding the Company.
"Confidential Information" shall mean information about the Company,
its subsidiaries and affiliates, and their respective clients and
customers that is not available to the general public and that was
learned by Bonczek in the course of his appointment by the Company (as
an officer or otherwise), including (without limitation) (i) any
proprietary knowledge, trade secrets, ideas, processes, formulas, cell
lines, sequences, developments, designs, assays and techniques, data,
formulae, and client and customer lists and all papers, resumes,
records (including computer records), (ii) information regarding plans
for research, development, new products, marketing and selling,
business plans, budgets and unpublished financial statements, licenses,
prices and costs, suppliers and customers (iii) information regarding
the skills and compensation of other employees of Company and (iv) the
documents containing such Confidential Information. Bonczek
acknowledges that such Confidential Information is specialized, unique
in nature and of great value to the Company, and that such information
gives the Company a competitive advantage. Upon the termination of his
appointment for any reason whatsoever, Bonczek shall promptly deliver
to the Company all documents, slides, computer tapes and disks (and all
copies thereof) containing any Confidential Information.
(b) During the Term and for two (2) years thereafter, Bonczek
shall not, directly or indirectly in any manner or capacity (e.g., as
an advisor, principal, agent, partner, officer, director, shareholder,
employee, member of any association or otherwise) engage in, work for,
consult, provide advice or assistance or otherwise participate in any
activity which is competitive with the business of the Company which is
worldwide ("Competing Business" or "Competitor"). Bonczek further
agrees that during such period he will not assist or encourage any
other person in carrying out any activity that would be prohibited by
the foregoing provisions of this Section 6 if such activity were
carried out by Bonczek and, in particular, Bonczek agrees that he will
not induce any employee of the Company to carry out any such activity;
provided, however, that the "beneficial ownership" by Bonczek, either
individually or as a member of a "group," as such terms are used in
Rule 13d of the General Rules and Regulations under the Securities
Exchange Act of 1934, of not more than five percent (5%) of the voting
stock of any publicly held corporation shall not be a violation of this
Agreement. It is further expressly agreed that the Company will or
would suffer irreparable injury if Bonczek were to compete with the
Company or any subsidiary or affiliate of the Company in violation of
this Agreement and that the Company would by reason of such competition
be entitled to injunctive relief in a court of appropriate
jurisdiction.
"Competing Business" is defined as the business of the
discovery, development, testing, manufacturing, and/or marketing
therapeutic components for the treatment of
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human viral diseases based on a viral fusion protein target and any
other business in which the Company may engage or propose to engage
during the term of this Agreement.
(c) During the Term and for two (2) years thereafter, Bonczek
shall not, directly or indirectly, influence or attempt to influence
customers or suppliers of the Company or any of its subsidiaries or
affiliates, to divert their business to any Competitor of the Company.
(d) Bonczek recognizes that he will possess confidential
information about employees of the Company relating to their education,
experience, skills, abilities, compensation and benefits, and
interpersonal relationships with customers of the Company. Bonczek
recognizes that the information he will possess about these employees
is not generally known, is of substantial value to the Company in
developing its business and in securing and retaining customers, and
will be acquired by him because of his business position with the
Company. Bonczek agrees that, during the Term, and for a period of two
(2) years thereafter, he will not, directly or indirectly, solicit or
recruit any employee of the Company for the purpose of being employed
by him or by any Competitor of the Company on whose behalf he is acting
as an agent, representative or employee and that he will not at any
time convey any such confidential information or trade secrets about
other employees of the Company to any other person.
(e) Bonczek agrees and understands that Company has received,
and in the future will receive, from third parties confidential or
proprietary information ("Third Party Information") subject to a duty
on Company's part to maintain the confidentiality of such information
and to use it only for certain limited purposes. During the Term and
thereafter, Bonczek will hold Third Party Information in the strictest
of confidence and will not disclose (to anyone other than Company
personnel who need to know such information in connection with their
work for Company), or use, except in connection with any work for
Company, Third Party Information unless expressly and specifically
authorized to do so prior to any proposed disclosure by an officer of
Company.
(f) Inventions:
(i) Assignment. Bonczek hereby assigns to Company all
his right, title and interest in and to any and all
inventions (and all patent rights, copyright, trade
secret rights and all other rights throughout the
world in connection therewith, whether or not
patentable or registerable under copyright,
trademark or similar statutes), together with all
goodwill associated therewith, (all of the foregoing
being hereinafter referred to collectively as
"Proprietary Rights"), made, conceived, reduced to
practice or learned by Bonczek, either alone or
jointly with others, during his period of
appointment or engagement with Company. Proprietary
Rights assigned under this Section 6 are hereinafter
referred to as "Company Inventions". Bonczek agrees
to assist Company in every necessary way to obtain
or enforce any patents, copyrights or any
proprietary rights relating to Company Inventions
and to execute all documents and applications
necessary to
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vest in Company's full legal title to such Company
Inventions, and Bonczek agrees to continue this
assistance after the termination of his appointment
or engagement with Company. Furthermore, Bonczek
hereby designates and appoints Company and its
officers and agents as his agents and
attorneys-in-fact to execute and file any
certificates, applications or documents and to do
all other lawful acts reasonably necessary in the
opinion of Company to protect Company's rights in
Company Inventions. Bonczek expressly acknowledges
that the foregoing power of attorney is coupled with
an interest and is therefore irrevocable and will
survive Bonczek's termination of appointment or
engagement, death or incompetency.
(ii) Government. Bonczek also will assign to or as
directed by Company all his right, title and
interest in and to any and all Proprietary Rights,
full title to which may required to be in the United
States by a contract between Company and the United
States or any of its agencies.
(iii) Independent Proprietary Rights. Notwithstanding
anything in this Agreement to the contrary,
Bonczek's obligation to assign or offer to assign
Bonczek's rights in Proprietary Rights to Company
will not extend or apply to Proprietary Rights that
Bonczek has developed entirely on Bonczek's own time
without using Company's equipment, supplies,
facilities or trade secret information unless such
Proprietary Right: (a) relates to Company's business
or actual demonstrably anticipated research or
development or (b) results from any work performed
by Bonczek for Company. Bonczek will bear the burden
of proof in establishing that the Proprietary Right
qualifies for exclusion under this subsection
6(f)(iii).
(iv) Assignment of Company Inventions. Bonczek will
assist Company in every proper way to obtain and
from time to time enforce United States and foreign
Proprietary Rights related to Company Inventions in
any and all countries. Bonczek's obligation to
assist Company with respect to Proprietary Rights
relating to such Company Inventions will continue
beyond the termination of Bonczek's appointment or
engagement, but Company will compensate Bonczek at a
reasonable rate after Bonczek's termination for the
time actually spent by Bonczek at Company's request
on such assistance.
Bonczek hereby waives and quitclaims to Company all
claims, of any nature whatsoever, which Bonczek may
or may hereafter have for infringement, including
past infringements, of any Proprietary Rights
assigned hereunder to Company.
(v) Obligation to Keep Company Informed. During the
period of Bonczek's appointment or engagement,
Bonczek will promptly disclose to Company fully and
in writing, and will hold in trust for the
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sole right and benefit of Company, any and all
Proprietary Rights. In addition, after termination
of Bonczek's appointment or engagement, Bonczek will
disclose all patent applications filed by Bonczek
within a year after termination of such appointment
or engagement.
(vi) Prior Proprietary Rights. Proprietary Rights, if
any, patented or unpatented, which Bonczek made
prior to Bonczek's commencement of appointment or
engagement with Company are excluded from the scope
of this Agreement. To preclude any possible
uncertainty, Bonczek has set forth on the attached
Exhibit A, a complete list of all Proprietary Rights
that Bonczek has, alone or jointly with others,
conceived, developed or reduced to practice or
caused to be conceived, developed or reduced to
practice prior to the commencement of Bonczek's
appointment or engagement with Company, that Bonczek
considers to be Bonczek's property or the property
of the third parties, and Bonczek wishes to have
excluded from the scope of this Agreement. If
disclosure of any such Proprietary Right on Exhibit
A would cause Bonczek to violate any prior
confidentiality agreement with another party,
Bonczek understands that he is not to list such
Inventions in Exhibit A but that he is to inform
Company in writing that all such Proprietary Rights
have not been listed for that reason.
(g) If it is determined by a court of competent jurisdiction
in any state that any restriction in this Section 6 is excessive in
duration or scope or is unreasonable or unenforceable under the laws of
that state, it is the intention of the parties that such restriction
may be modified or amended by the court to render it enforceable to the
maximum extent permitted by the law of that state.
7. Return of Company Documents. In the event Bonczek leaves the Company
for whatever reason, Bonczek agrees to deliver to Company any and all laboratory
notebooks, drawings, notes, memoranda, specifications, devices, software,
databases, formulas, molecules, cells and documents, together with all copies
thereof, and any other material containing or disclosing any Company Inventions,
Third Party Information or Confidential Information of Company. Bonczek further
agrees that any property situated on Company's premises and owned by Company
including disks and other storage media, filing cabinets or other work areas, is
subject to inspection by Company personnel at any time, with or without notice,
for the purpose of protecting Company's rights and interests in its intellectual
property.
8. Miscellaneous. This Agreement shall also be subject to the following
miscellaneous considerations:
(a) Bonczek and the Company each represent and warrant to the
other that he or it has the authorization, power and right to deliver,
execute, and fully perform his or its obligations under this Agreement
in accordance with its terms.
(b) This Agreement (including attached Exhibits A and B)
contains a complete statement of all the arrangements between the
parties with respect to Bonczek's
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appointment by the Company, this Agreement supersedes all prior and
existing negotiations and agreements between the parties concerning
Bonczek's appointment as an officer (including but not limited to the
Initial Consulting Agreement), and this Agreement can only be changed
or modified pursuant to a written instrument duly executed by each of
the parties hereto.
(c) If any provision of this Agreement or any portion thereof
is declared invalid, illegal, or incapable of being enforced by any
court of competent jurisdiction, the remainder of such provisions and
all of the remaining provisions of this Agreement shall continue in
full force and effect.
(d) This Agreement shall be governed by and construed in
accordance with the internal, domestic laws of the State of North
Carolina.
(e) The Company may assign this Agreement to any direct or
indirect subsidiary or parent of the Company or joint venture in which
the Company has an interest, or any successor (whether by merger,
consolidation, purchase or otherwise) to all or substantially all of
the stock, assets or business of the Company and this Agreement shall
be binding upon and inure to the benefit of such successors and
assigns. Except as expressly provided herein, Bonczek may not sell,
transfer, assign, or pledge any of his rights or interests pursuant to
this Agreement.
(f) Any rights of Bonczek hereunder shall be in addition to
any rights Bonczek may otherwise have under benefit plans, agreements,
or arrangements of the Company to which he is a party or in which he is
a participant. Provisions of this Agreement shall not in any way
abrogate Bonczek's rights under such other plans, agreements, or
arrangements.
(g) For the purpose of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when delivered or mailed by
United States certified or registered mail, return receipt requested,
postage prepaid, addressed to the named Bonczek at the address set
forth below under his signature; provided that all notices to the
Company shall be directed to the attention of the CEO and CSO with a
copy to the Secretary of the Company, or to such other address as
either party may have furnished to the other in writing in accordance
herewith, except that notice of change of address shall be effective
only upon receipt.
(h) Section headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this
Agreement for any other purpose.
(i) Failure to insist upon strict compliance with any of the
terms, covenants, or conditions hereof shall not be deemed a waiver of
such term, covenant, or condition, nor shall any waiver or
relinquishment of, or failure to insist upon strict compliance with,
any right or power hereunder at any one or more times be deemed a
waiver or relinquishment of such right or power at any other time or
times.
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(j) This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
9. Legal and Equitable Remedies. Because Bonczek's services are
personal and unique, and because Bonczek will have access to and become
acquainted with Proprietary and Confidential Information of Company, Company
will have the right to enforce this Agreement and any of its provisions by
injunction, specific performance or other equitable relief in any court of
competent jurisdiction, without prejudice to any other rights and remedies that
Company may have for a breach of this Agreement.
10. Survival of Provisions. The executory provisions of this Agreement
will survive the termination of this Agreement or the assignment of this
Agreement by Company to any successor in interest or other assignee.
11. Resolution of Disputes. Except as otherwise specifically provided
in Sections 8 and 10 of the Severance Agreement attached hereto, any dispute or
controversy arising under or in connection with this Agreement and Severance
Agreement shall be settled exclusively by arbitration administered by the
American Arbitration Association and conducted before a panel of three
arbitrators in Raleigh, Wake County, North Carolina, all in accordance with its
Commercial Arbitration rules then in effect. The Company and Bonczek hereby
agree that the arbitrator will not have the authority to award punitive damages,
damages for emotional distress or any other damages that are not contractual in
nature. Judgment shall be final and binding upon the parties and judgement may
be entered on the arbitrator's award in any court having jurisdiction; provided,
however, that (a) the Company shall be entitled to seek a restraining order or
injunction in any court of competent jurisdiction to prevent any violation or
the continuation thereof, of the provisions of Section 6 of this Agreement, and
Bonczek consents that such restraining order or injunction may be granted
without the necessity of the Company's posting any bond except to the extent
otherwise required by applicable law; and (b) notwithstanding anything in the
Severance Agreement to the contrary, Bonczek, shall be entitled by arbitration
to seek de novo review of any material violation of the Severance Agreement or
any denial of a claim or obligation to pay a claim thereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
ROBERT R. BONCZEK COMPANY
TRIMERIS, INC.
BY: /S/ ROBERT R. BONCZEK BY: /S/ DANI P. BOLOGNESI
--------------------------- ---------------------
TITLE: ACTING CHIEF ADMINISTRATIVE NAME: DANI P. BOLOGNESI, PH.D
OFFICER AND ACTING CHIEF FINANCIAL OFFICER TITLE: CHIEF EXECUTIVE OFFICER
AND CHIEF SCIENTIFIC OFFICER
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EXHIBIT A
TO
EXECUTIVE AGREEMENT
1. The following is a complete list of all inventions or improvements
relevant to the subject matter of my appointment or engagement by the Company
that have been made or conceived or first reduced to practice by me alone or
jointly with others prior to my appointment or engagement by the Company and
therefore should be excluded from the coverage of this Agreement:
____ Additional sheets attached.
X No pertinent inventions or improvements.
____
____ Due to confidentiality agreements with one or more prior
employers, I cannot disclose certain inventions that would
otherwise be included on the above-described list.
2. I propose to bring to my appointment or engagement the following
devices, materials and documents of a former employer or other person to whom I
have an obligation of confidentiality and that are not generally available to
the public. These materials and documents may be used in my appointment or
engagement pursuant to the express written authorization of my former employer
or such other person (a copy of which is attached hereto). If no such
authorization is in place, I will consult with the Company management to
determine what steps should be taken to protect the interests of all parties
concerned:
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Additional sheets attached.
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X No material.
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Date: 7 January 2000
ROBERT R. BONCZEK:
/S/ ROBERT R. BONCZEK
---------------------------
Robert R. Bonczek
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EXHIBIT B TO EXECUTIVE AGREEMENT
EXECUTIVE SEPARATION AND SEVERANCE AGREEMENT
THIS SEPARATION AND SEVERANCE AGREEMENT (the "Severance Agreement") is
made a part of that Executive Agreement (the "Agreement"), entered into and
effective as of the 2nd day of September, 1999, by and between ROBERT R.
BONCZEK, an individual resident of the State of Delaware ("Bonczek"), and
TRIMERIS, INC., a Delaware corporation (the "Company").
W I T N E S S E T H:
-------------------
WHEREAS, the Company desires to provide for severance benefits under
the terms and conditions set forth herein; and
WHEREAS, this Severance Agreement constitutes part of the Agreement and
is incorporated therein by reference and fully set forth therein.
COVENANTS
NOW, THEREFORE, in consideration of the premises, mutual promises
contained herein, and other valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
1. Certain Definitions. The following terms shall have the meanings set
forth herein.
(a) "Administrator" shall mean the Company. The Company shall
also be the "named fiduciary" hereunder. The Company shall have the
authority to designate one or more of its officers, employees or
directors to act on its behalf in administering this Severance
Agreement.
(b) "Base Salary" shall mean Bonczek's regular pay (in the
form of salary or fees, as the case may be) at the time of termination.
Base Salary shall not include bonus or incentive plans, overtime pay,
relocation allowances or the value of any other benefits for which
Bonczek may be eligible.
(c) "Good Reason" shall mean, without the express written
consent of Bonczek, the occurrence of any of the following events
unless such events are fully corrected within 30 days following written
notification by Bonczek to the Company that he intends to terminate his
appointment as an officer hereunder for one of the reasons set forth
below:
(i) a material breach by the Company of any provision of
the Agreement or Severance Agreement, including, but
not limited to, the assignment to Bonczek of any
duties inconsistent with Bonczek's position in the
Company or a material adverse alteration in the
nature or status of
<PAGE>
Bonczek's responsibilities, except for a Permitted
Reassignment as permitted in subsection 2(b) of the
Agreement;
(ii) the Company's requiring Bonczek to be based anywhere
other than the metropolitan area where the Company
is currently located; and
(iii) the occurrence of a "Change in Control" as defined
below.
For purposes of this Agreement a "Change in Control" shall mean an
event as a result of which: (i) any "person" (as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934 (the
"Exchange Act")), is or becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act, except that a person shall be deemed
to have "beneficial ownership" of all securities that such person has
the right to acquire, whether such right is exercisable immediately or
only after the passage of time), directly or indirectly, of more than
50% of the total voting power of the voting stock of the Company; (ii)
the Company consolidates with, or merges with or into another
corporation or sells, assigns, conveys, transfers, leases or otherwise
disposes of all or substantially all of its assets to any person, or
any corporation consolidates with, or merges with or into, the Company,
in any such event pursuant to a transaction in which the outstanding
voting stock of the Company is changed into or exchanged for cash,
securities or other property, other than any such transaction where (A)
the outstanding voting stock of the Company is changed into or
exchanged for (i) voting stock of the surviving or transferee
corporation or (ii) cash, securities (whether or not including voting
stock) or other property, and (B) the holders of the voting stock of
the Company immediately prior to such transaction own, directly or
indirectly, not less than 50% of the voting power of the voting stock
of the surviving corporation immediately after such transaction; or
(iii) during any period of two consecutive years, individuals who at
the beginning of such period constituted the Board of the Company
(together with any new directors whose election by such Board or whose
nomination for election by the stockholders of the Company was approved
by a vote of 66-2/3% of the directors then still in office who were
either directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any
reason to constitute a majority of the Board of the Company then in
office; or (iv) the Company is liquidated or dissolved or adopts a plan
of liquidation, provided, however, that a Change in Control shall not
include any going private or leveraged buy-out transaction which is
sponsored by Bonczek or in which Bonczek acquires an equity interest
materially in excess of his equity interest in the Company immediately
prior to such transaction (each of the events described in (i), (ii),
(iii) or (iv) above, except as provided otherwise by the preceding
clause being referred to herein as a "Change in Control"). In the event
of a sale of the assets or stock of the Company, Bonczek shall have the
option of electing to terminate his appointment or engagement due to a
Change in Control and receive such severance benefits or electing to
remain employed under the terms of this Severance Agreement, but not
both. Bonczek's right to terminate his appointment or engagement for
Good Cause due to any "Change in Control" must be exercised within
sixty (60) days after receiving written notice or his receiving actual
knowledge of such Good Cause.
(d) "Cause" shall mean:
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(i) fraud, misappropriation, embezzlement, or other act
of material misconduct against the Company or any of
its affiliates;
(ii) substantial and willful failure to perform specific
and lawful directives of the CEO and CSO;
(iii) willful and knowing violation of any rules or
regulations of any governmental or regulatory body,
which is materially injurious to the financial
condition of the Company;
(iv) conviction of or plea of guilty or nolo contendere
to a felony; or
(v) a material breach of the terms and conditions of the
Agreement;
provided, however, that with regard to subparagraphs (ii) and
(v) above, Bonczek may not be terminated for Cause unless and
until the CEO and CSO have given him reasonable written notice
of their intended actions and specifically describing the
alleged events, activities or omissions giving rise thereto
and with respect to those events, activities or omissions for
which a cure is possible, a reasonable opportunity to cure
such breach; and provided further, however, that for purposes
of determining whether any such Cause is present, no act or
failure to act by Bonczek shall be considered "willful" if
done or omitted to be done by Bonczek in good faith and in the
reasonable belief that such act or omission was in the best
interest of the Company and/or required by applicable law.
(e) "Disability" shall mean that as a result of Bonczek's
incapacity due to physical or mental illness (as determined in good
faith by a physician acceptable to the Company and Bonczek), Bonczek
shall have been absent from the performance of his duties with the
Company for 120 consecutive days during any twelve (12) month period or
if a physician acceptable to the Company and Bonczek advises the
Company that it is likely that Bonczek will be unable to return to the
performance of his duties for 120 consecutive days during the
succeeding twelve (12) month period.
2. Responsibility for Benefits. The Company will pay the entire cost of
all benefits provided under this Severance Agreement, solely from its general
assets. The benefits made available by this Severance Agreement are "unfunded,"
and Bonczek is not required or permitted to make any contribution with respect
to this Severance Agreement.
3. Payment of Benefits. In the event Bonczek's appointment as an
officer of the Company is terminated (a) by the Company other than for Cause,
Disability, Death or Permitted Reassignment, or (b) by Bonczek for Good Reason
(as defined herein), Bonczek shall receive the following severance benefits upon
his satisfaction of the condition in Section 4 hereof: (i) his Base Salary
during the period commencing on the effective date of such termination and
ending on the second anniversary of the date of such termination or, if earlier,
the last day of the Protected Period (the "Continuation Period"), as if Bonczek
were still employed or providing services to the Company, as the case may be,
during the Continuation Period.
3
<PAGE>
4. Conditions to Receipt of Benefits. Upon the occurrence of an event
described in Section 3 above, Bonczek will be eligible for severance benefits
hereunder only if Bonczek executes and delivers to the Company a Settlement
Agreement and Release in the form of Exhibit 1 attached hereto and made a part
hereof.
5. Termination Events Not Covered; Termination of this Severance
Agreement. Notwithstanding anything to the contrary contained herein, the
Company shall not pay Bonczek severance benefits under this Severance Agreement
if:
(a) Bonczek dies during the Term;
(b) Bonczek's appointment or engagement is terminated for
Cause or Disability;
(c) Bonczek's appointment as an officer is terminated in a
Permitted Reassignment;
(d) Bonczek terminates his appointment with the Company for a
reason other than Good Reason as defined herein;
(e) Bonczek revokes his agreement to release the Company from
any and all claims related to his appointment pursuant to the
Settlement Agreement and Release executed in satisfaction of Section 4
hereof; or
This Severance Agreement shall terminate and be of no further force or effect
upon the occurrence of an event described in paragraphs (a), (b), (d) or (e) of
this Section. Following an event described in paragraph (c) of this Section,
this Severance Agreement shall terminate and be of no further force or effect at
the end of the Protected Period unless Bonczek becomes entitled to severance
benefits pursuant to Section 3 of this Severance Agreement prior to the end of
such Period.
6. How Severance Benefits Are Paid. The Company will pay severance
benefits in installments through the Company's regular payroll procedure
according to Bonczek's pay schedule at the time of termination of appointment;
provided however, the Administrator shall have the discretion to cause the
Company to pay all severance benefits in a lump sum payment, or to cause the
Company to postpone commencement of benefits until the eighth (8th) day
following Bonczek's execution of the Settlement Agreement and Release. Bonczek's
severance benefits may be subject to mandatory withholding, including federal,
state and local income taxes, as well as FICA and withholding for applicable
insurance premiums.
7. Administration. The Administrator shall have all powers necessary or
helpful to administering this Severance Agreement in all its details, and shall
have full discretionary authority in exercising such powers. This authority
includes, but is not limited to, the power:
(a) To make rules and regulations for the administration of
this Severance Agreement;
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<PAGE>
(b) To make any finding of fact necessary or appropriate for
any purpose under this Severance Agreement, including, but not limited
to, the determination of eligibility for and the amount of any benefit
payable under this Severance Agreement; and
(c) To interpret the terms and provisions of this Severance
Agreement and to determine any and all questions arising out of this
Severance Agreement or in connection with its administration. This
authority shall include, but is not limited to, the right to remedy or
resolve possible ambiguities, inconsistencies or omissions, by general
rule or particular decision.
(d) The Administrator shall exercise the powers conferred by
this Severance Agreement in its sole and absolute discretion, and all
its acts and determinations will be final and binding upon all
interested parties subject to the de novo review by arbitration as
provided in this Severance Agreement and Agreement.
8. Benefit Claims and Appeal Procedures. Bonczek has the right to make
a written claim for benefits under this Severance Agreement. If all or part of
Bonczek's claim for benefits is denied, or if there is a dispute regarding
Bonczek's rights under this Severance Agreement, the Administrator will notify
Bonczek in writing of the reasons for the denial of Bonczek's claim. The notice
will refer to the appropriate provision of this Severance Agreement on which the
denial or decision is based. The notice will also describe how claims are
reviewed and outline the steps for an appeal. Usually, the Administrator will
give Bonczek written notice of its decision within ninety (90) days of receipt
of the claim. However, the Administrator may in some cases require additional
time to complete its review, due to special circumstances. The Administrator
will notify Bonczek if additional time is required for review of the claim. If
Bonczek disagrees with the Administrator's decision, Bonczek may appeal and
request a review of the case by the Administrator. Bonczek must request a review
of the claim in writing within sixty (60) days after the Administrator notifies
Bonczek of its decision. Bonczek's request must state why Bonczek disagrees with
the decision, and Bonczek must include any information, questions or comments to
support his appeal. Bonczek or his legal representative may review any documents
related to the claim. The Administrator will review the appeal and notify
Bonczek of its decision within sixty (60) days after receipt of the appeal;
however, the Administrator may in some cases require additional time to complete
its review, due to special circumstances. The Administrator will notify Bonczek
if additional time is required for review of the appeal. The Administrator will
notify Bonczek of its final decision and the reasons for the decision.
9. Additional Information Regarding this Severance Agreement.
(a) This Severance Agreement shall not be amended except by a
written agreement executed by Bonczek and by an authorized officer of
the Company (other than Bonczek).
(b) The Agreement and this Severance Agreement provides the
sole and exclusive agreement concerning severance benefits for Bonczek
in the event of a
5
<PAGE>
termination and replaces any and all prior plans, policies and
practices relating to severance pay that may exist now or may have
existed in the past.
(c) To the extent not preempted by ERISA, the Agreement and
this Severance Agreement shall be governed by and construed according
to the laws of the State of North Carolina.
(d) If a provision of this Severance Agreement shall be held
illegal or invalid, the legality or invalidity shall not affect the
remaining provisions of this Severance Agreement, and this Severance
Agreement shall be construed and enforced as if the illegal or invalid
provision had not been included.
(e) Bonczek acknowledges that no representation, promise or
inducement has been made other than as set forth in the Agreement and
this Severance Agreement, and that he does not enter into this
Agreement and Severance Agreement in reliance upon any representation,
promise or inducement not set forth herein and the Agreement. The
Agreement and this Severance Agreement supersedes all prior
negotiations and understandings of any kind with respect to the subject
matter and contains all of the terms and provisions of the agreement
between Bonczek and the Company with respect to the subject matter
hereof. Any representation, promise or condition, whether written or
oral, not specifically incorporated herein, shall be of no binding
effect.
(f) Capitalized terms used in this Severance Agreement shall
have the meanings specified in the Agreement, unless expressly provided
otherwise herein.
10. Bonczek's Rights Under ERISA. As a participant under this Severance
Agreement, Bonczek is entitled to certain rights and protections under ERISA.
Bonczek may examine all documents relating to the Severance Agreement without
charge. These may include annual financial reports, plan descriptions and all
other official documents filed with the United States Department of Labor (if
any). Bonczek may obtain copies of documents relating to this Severance
Agreement and certain other information by writing to the Administrator. The
Administrator may impose a reasonable charge for the copies. In addition to
creating rights for Bonczek as a participant under this Severance Agreement,
ERISA imposes certain duties on the people who are responsible for operating
this Severance Agreement. These people are called "fiduciaries." The fiduciaries
have a duty to operate the Severance Agreement prudently and in the interest of
Bonczek. The Company may not terminate Bonczek's appointment or engagement or
otherwise discriminate against Bonczek in any way to prevent him from obtaining
a severance benefit or exercising rights under ERISA. Under ERISA, Bonczek may
take the following steps to enforce his rights: (a) if Bonczek requests certain
materials from the administrator regarding this Severance Agreement and does not
receive them within 30 days, Bonczek may file suit in a federal court; in such a
case, the court may require the Administrator to provide the materials and pay
Bonczek up to $100 a day until Bonczek receives the materials, unless the
materials were not sent due to reasons beyond the control of the Administrator;
(b) if Bonczek's claim for benefits is denied or ignored in whole or in part,
Bonczek may file suit in federal court; (c) if Bonczek is discriminated against
for pursuing a benefit or exercising ERISA rights, Bonczek may seek help from
the United States Department of Labor or file suit in a federal court. If
Bonczek files a suit, the court will decide who should pay court costs and legal
6
<PAGE>
fees. If Bonczek has any questions about this statement or about ERISA rights,
Bonczek should contact the Administrator. Bonczek may also contact the nearest
area office of the Pension and Welfare Benefit Administration, United States
Department of Labor.
11. Miscellaneous Information About this Severance Agreement. This
section provides general information about this Severance Agreement required by
the Employee Retirement Income Security Act of 1974 ("ERISA"). Participation in
this Severance Agreement is subject to the execution by Bonczek of a Settlement
Agreement and Release with the Company. This Agreement shall not be construed in
any manner to give any Company employee other than Bonczek the right to
severance benefits upon termination of appointment.
Plan Sponsor: Trimeris, Inc.
Tax ID Number: 56-6017737
Plan Name: Trimeris, Inc. 1999 Executive Agreement and
Separation and Severance Plan
Plan Number: _______
Plan Year: Calendar year
Plan Type: Welfare benefit plan
Effective Date: September 2, 1999
Agent For Service
of Legal Process: Trimeris, Inc.
Attention: Secretary
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK. SIGNATURE PAGE TO FOLLOW.]
7
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Severance
Agreement under seal as of the date first set forth above (the individual party
adopting the word "SEAL" as his seal).
COMPANY:
TRIMERIS, INC.
By: /s/ Dani P. Bologensi
----------------------
Dani P. Bolognesi, Ph.D.
Chief Executive Officer and
Chief Scientific Officer
ROBERT R. BONCZEK:
/s/ Robert R. Bonczek (SEAL)
-----------------------------------
Name: Robert R. Bonczek
8
<PAGE>
EXHIBIT 1
SETTLEMENT AGREEMENT AND RELEASE
THIS SETTLEMENT AGREEMENT AND RELEASE ("Settlement Agreement") sets out
the complete agreement and understanding between TRIMERIS, INC. (the "Company")
and ROBERT R. BONCZEK ("Bonczek") regarding the termination of Bonczek's
appointment as an officer with the Company.
I. RELEASE AND WAIVER: For and in consideration of the severance
payments described in that certain Separation and Severance Agreement dated as
of the 2nd day of September, 1999 between the Company and Bonczek (the
"Severance Agreement"), to be paid beginning no sooner than the eighth day
following execution of this document, Bonczek hereby releases, waives and
forever discharges the Company, its parent, affiliates and subsidiaries, and all
of its benefit plans, plan administrators, trustees, agents, subsidiaries,
affiliates, employees, officers, shareholders, successors and assigns (hereafter
the "Releasees") from any and all liability, actions, charges, causes of action,
demands, damages, attorneys fees or claims for relief or remuneration of any
kind whatsoever, whether known or unknown at this time, arising out of or in any
way connected with Bonczek's appointment or engagement, or the termination of
appointment or engagement, with the Company. These include, but are not limited
to, any claim (including related attorneys' fees and costs) under the Age
Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, the
Americans with Disabilities Act, the Worker's Adjustment and Retraining
Notification Act, the Equal Pay Act, the Post Civil War Civil Rights Act, the
Fair Labor Standards Act, the Family and Medical Leave Act, the North Carolina
Wage and Hour Act, the North Carolina Hazardous Chemicals Right to Know Act, the
North Carolina Retaliatory Employment Discrimination Act, all as amended, or any
other federal, state or local law or ordinance, and any claim for benefits or
other claims under the Employee Retirement Income Security Act of 1974, as
amended (except as expressly provided below). This waiver, release and discharge
also includes without limitation, any wrongful or unlawful discharge claims,
discipline or retaliation claims, any claims relating to any contract of
employment, whether express or implied, any claims related to promotions or
demotions, any claims for or relating to relocation, compensation including
commissions, short term or long term incentives, the Company's Bonczek benefit
plans and the management thereof (except as expressly provided below), any
claims for defamation, slander, libel, invasion of privacy, misrepresentation,
fraud, infliction of emotional distress, any claims based on stress to the
extent permitted by law, any claims for breach of any covenant of good faith and
fair dealing, and any other claims relating to Bonczek's appointment or
engagement with the Company and termination thereof. This Settlement Agreement
does not apply to any claims or rights that may arise under the Age
Discrimination in Employment Act after the date that this Settlement Agreement
is signed.
Bonczek expressly waives all claims, including those which he/she does
not know or suspect to exist in his/her favor as of the date of this Settlement
Agreement. As used in this Settlement Agreement, the parties understand the word
"claims" to include all actions, claims and grievances, whether actual or
potential, known or unknown, and specifically but not exclusively including all
claims against the Releasees arising from Bonczek's appointment or engagement
with the Company, the termination thereof or any other conduct by the Releasees
occurring on or prior to the date Bonczek signs this Settlement Agreement. All
such claims are
<PAGE>
forever barred by this Settlement Agreement whether they arise in contract or
tort or under a statute or any other law.
Bonczek also understands and agrees that this release extinguishes all
claims, whether known or unknown, foreseen or unforeseen, and expressly waives
any rights or benefits under any law or judicial decision providing that, in
substance, a general release does not extend to claims which a creditor does not
know or suspect to exist in his/her favor at the time of executing the release,
which if known by him must have materially affected his/her settlement with a
debtor. It is expressly understood and agreed by the parties that this
Settlement Agreement is in full accord, satisfaction and discharge of any and
all doubtful and/or disputed claims by Bonczek against the Releasees, and that
this Settlement Agreement has been signed with the express intent of
extinguishing all claims, obligations, actions or causes of action as herein
described.
Bonczek's waiver of claims relating to or arising under the Employee
Retirement Income Security Act of 1974, as amended, or the Company's 401(k)
Plan, shall not be construed as a waiver of Bonczek's right to receive his/her
vested benefits under such plan, if any, in accordance with the terms and
provisions of such plan, or as a waiver of Bonczek's right to reimbursement for
covered expenses under and in accordance with the terms and provisions of the
Company's health or dental insurance plans, to the extent such covered expenses
were incurred during a period in which Bonczek was eligible to participate and
in fact was participating in such plans.
II. VOLUNTARY AGREEMENT AND OTHER ACKNOWLEDGMENTS: Bonczek acknowledges
that:
I have read this Settlement Agreement, and I understand its legal and binding
effect. I am knowingly and voluntarily executing this Settlement Agreement of my
own free will.
The severance benefits under the Severance Agreement are in addition to and in
excess of benefits to which I am otherwise entitled.
I have had the opportunity to seek, and the Company has expressly advised me to
seek, legal counsel prior to signing this Settlement Agreement.
I have been given at least 45 days from the date I received this form to
consider the severance benefits being offered to me and the terms of this
Settlement Agreement.
At the beginning of that 45 day period, I also received a description of: (1)
the class, unit, or group of individuals covered by the severance and separation
plan (if any), the eligibility factors for this program, and any time limits
applicable to the program; and (2) the job titles and ages of all individuals
being asked to execute this Settlement Agreement in exchange for payment of
severance benefits (if any) and the job titles and ages of all individuals in
the same job classification or organizational unit who are not being asked to
execute this Settlement Agreement.
I understand that in signing this Settlement Agreement, I am releasing the
Releasees from any and all claims I may have against them (except as expressly
provided herein), including but not limited to claims under the Age
Discrimination in Employment Act.
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<PAGE>
III. REVOCATION OF SETTLEMENT AGREEMENT: I understand that I can change
my mind and revoke my signature on this Settlement Agreement within seven days
after signing it by hand delivering notice of such revocation to the Chairman of
the Compensation Committee of the Company. I understand that if I revoke this
Settlement Agreement, I will not be entitled to any severance benefits under the
Severance Agreement. I understand that, unless properly revoked by me during
this seven-day period, the release and waiver in the first section above will
become effective seven days after I sign the Settlement Agreement.
IV. COMPLETE AGREEMENT: I acknowledge that no representation, promise
or inducement has been made other than as set forth in this Settlement
Agreement, and that I do not enter into this Settlement Agreement in reliance
upon any representation, promise or inducement not set forth herein. This
Settlement Agreement supersedes all prior negotiations and understandings of any
kind with respect to the subject matter and contains all of the terms and
provisions of agreement between Bonczek and the Company with respect to the
subject matter hereof. Any representation, promise or condition, whether written
or oral, not specifically incorporated herein, shall be of no binding effect.
V. GOVERNING LAW: This Settlement Agreement shall be governed by the
Employee Retirement Income Security Act and, where applicable, the law of the
State of North Carolina.
VI. SEVERABILITY: In the event any provision of this Settlement
Agreement shall be held to be void, voidable, unlawful or, for any reason,
unenforceable, the remaining portions shall remain in full force and effect. The
unenforceability or invalidity of a provision of this Settlement Agreement in
one jurisdiction shall not invalidate or render that provision unenforceable in
any other jurisdiction. If Bonczek's release and waiver pursuant to Section I of
this Settlement Agreement is found to be unenforceable, however, Bonczek agrees
that he/she will either sign a valid release and waiver of claims in favor of
the Company and the Releasees or promptly return the severance benefits received
by Bonczek.
VII. BINDING EFFECT: This Settlement Agreement is binding upon, and
shall inure to the benefit of, the parties and their respective heirs,
executors, administrators, successors and assigns.
VIII. NO ADMISSIONS: This Settlement Agreement is not intended as, and
shall not be construed, as an admission that the Company and Releasees or any of
them have violated any federal, state or local law, ordinance or regulation,
breached any contract, or committed any wrong whatsoever against Bonczek.
AGREED AND UNDERSTOOD:
ROBERT R. BONCZEK:
------------------------- -----------------------
Name: Robert R. Bonczek Date
3