Ex-10.2 Employment Agreement - Dallas Hughes



 





EXHIBIT 10.2




EMPLOYMENT AGREEMENT




     THIS EMPLOYMENT AGREEMENT (“Agreement”) is made and entered as of December 3, 2007 between
Advanced Viral Research Corp., a Delaware corporation (“Employer”), and Dallas E. Hughes, an
individual (“Employee”).



R E C I T A L S




     WHEREAS, Employer and Employee desire to enter into this Agreement to memorialize the
employment relationship between Employer and Employee.



     NOW, THEREFORE, in consideration of the mutual promises contained herein and for other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto mutually agree as follows:


1. TERM. This Agreement shall be for an initial term of one (1) year, commencing as of December 3,
2007 (the “Effective Date”) and ending on December 2, 2008, unless terminated earlier as provided
herein (the “Initial Term”), and thereafter will govern Employee’s continued employment by Employer
until that employment ceases (such period of Employee’s employment is herein referred to as the
“Term”).



2. DUTIES.




     2.1. In General. Upon the terms and subject to the conditions of this Agreement,
Employer hereby employs Employee and Employee hereby accepts such employment with Employer for the
term of this Agreement as Vice President Research of Employer. Employee shall have the following
duties: (i) development of Employer’s scientific and intellectual property assets, including the
chemical compounds identified as CTK000147, CTK000168 and AVR118, as well as other similar projects
in which Employer may have an interest from time to time; and (ii) such other services commensurate
with Employee’s position as the President of Employer, in his discretion, shall reasonably request
from time to time in connection with the Employer’s business and communicated to Employee (the
“Duties”). During the term of this Agreement and subject to Section 2.3 below, Employee shall
devote substantially all of his attention, skill and efforts during normal business hours to the
faithful performance of the Duties.



     2.2. Place of Performance. So long as Employer has offices/laboratory space in
Boston, Massachusetts, the Duties shall be performed in Boston, Massachusetts, except for such
travel in the ordinary course of Employer’s business as may from time to time be reasonably
required. If Employer does not have offices/laboratory space in Boston, Massachusetts, the Duties
shall be performed in Yonkers, New York, except for such travel in the ordinary course of
Employer’s business as may from time to time be reasonably required.



     2.3. Other Activities. Employee shall not, without the approval of the President of
Employer, render services of a business nature to any other person or entity, if such activities
would interfere with the performance of Employee’s Duties as required under this Agreement or
otherwise prevent Employee from devoting substantially all of his attention, skill and efforts
during normal business hours to the performance of Employee’s Duties as required under this
Agreement. Subject to the foregoing limitations, the following activities shall be deemed to be
permissible: (i) owning or managing real or personal property owned by Employee or his family
members; (ii) owning or managing any business which does not compete, directly or indirectly, with
the Business (as defined below); and (iii) holding directorships or similar positions in any
organization which are approved by the Board of Directors of Employer (the “Board”). “Business”
shall mean any business that is developing, manufacturing and/or distributing pharmaceutical
products which exhibit substantially similar biological mechanisms of action as Employer’s products
in the clinical indications pursued by Employer.



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3. COMPENSATION AND OTHER BENEFITS.




     3.1. Compensation and Employee Benefit Plans. For all services rendered by Employee
in any capacity during his employment under this Agreement (including any renewals hereof),
Employer shall pay to Employee as compensation the sum of the amounts set forth in the following
subparagraphs (a) and (b).



          (a) Base Salary. Commencing upon the Effective Date, Employee shall be paid the sum
of Two Hundred Thousand Dollars ($200,000) on an annualized basis (the “Base Salary”), which amount
shall be paid in accordance with Employer’s customary payroll practices. The Base Salary shall be
reviewed on an annual basis by the Board and may be increased from time to time by the Board.




          (b) Benefit Plans. During the term of Employee’s employment with Employer, Employee
shall be entitled to participate in all cash and non-cash incentive compensation, bonus, equity,
savings and retirement plans, practices, policies and programs applicable generally to other
executives of Employer, and Employee shall be eligible for participation in and shall receive all
benefits under, welfare benefit plans, practices, policies and programs applicable generally to
other executives of Employer, including but not limited to comprehensive medical and dental
coverage, disability and basic and supplemental life insurance.




     3.2. Business Expenses. Employee shall be reimbursed for reasonable expenses related
to maintenance of professional licenses, membership in professional societies, reasonable
entertainment, travel, and similar items, in each case, subject to Employer’s prior written
approval in accordance with Employer’s policies, practices and procedures.



     3.3. Vacation. Employee will be entitled to three (3) weeks paid vacation annually or
such other time as authorized by the Board of Directors during which time his compensation shall be
paid in full.



4. TERMINATION OF EMPLOYMENT.




     4.1. Termination by Employer for Cause. Employer may terminate Employee for “Cause”
at any time upon notice to Employee. As used herein, the term “Cause” shall mean:



          (a) Employee’s material breach of any provision of this Agreement; provided, however, that in
the event Employer believes that this Agreement has been breached, it shall provide Employee with
written notice of such breach and provide Employee with a thirty (30) day period in which to cure
or remedy such breach. For the avoidance of doubt, it shall constitute a material breach of this
Agreement if Employee fails to perform his Duties hereunder by way of intentional neglect or
chronic absenteeism (excluding Disability);




          (b) The commission by Employee of a crime, or an act of fraud or dishonesty against Employer,
its subsidiaries or affiliates; or




          (c) The use by Employee of an illegal substance, including, but not limited to, marijuana,
cocaine, heroin, and all other illegal substances, and/or the dependence by Employee upon the use
of alcohol, which, in any case, in the opinion of both Employee’s family physician and a physician
chosen by Employer, materially impairs Employee’s ability to perform his Duties hereunder, which
dependence is not cured or rehabilitated, as determined by Employee’s physician, within three
(3) months of receipt of written notice from Employer to Employee.




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     4.2. Termination Upon Death or Disability. This Agreement shall terminate upon the
death or the Disability (as defined below) of Employee. Employee or his heirs or estate (as the
case may be) shall be entitled to the compensation provided for with respect to a termination by
death or Disability in this Agreement. As used in this Agreement, the term “Disability” means (A)
Employee’s incapacity due to a permanent mental or physical illness that prevents Employee from
performing his duties hereunder for 26 consecutive weeks or (B) a physical condition that renders
the performance by Employee of his duties hereunder a serious threat to the health and well being
of Employee. Disability shall be determined by a physician selected by Employee (or his legal
representative) and reasonably acceptable to Employer.



     4.3. Payments Upon Termination. If Employee’s employment is terminated pursuant to
Sections 4.1 or 4.2 hereof, then Employee shall be entitled to: (1) the Base Salary pursuant to
Section 3.1(a) earned through the date of termination; and (2) all applicable reimbursements from
Employer due under Section 3.2 hereof.



     4.4. Termination without Cause or Resignation for Good Reason. If Employer terminates
Employee without Cause or Employee resigns for “Good Reason” (as defined below) at any time,
Employee shall be entitled to:



          (a) the Base Salary pursuant to Section 3.1(a) earned through the date of termination or
resignation;




          (b) payment for all unused vacation and personal days accrued through the date of termination
or resignation;




          (c) all applicable reimbursements from Employer due under Section 3.2 hereof;




          (d) monthly severance payments equal to one-twelfth of the Base Salary as of the date of such
termination or resignation through the scheduled expiration of the Initial Term; and




          (e) waiver of the applicable premium otherwise payable for COBRA continuation coverage for
Employee (and, to the extent covered immediately prior to the date of Employee’s termination, his
spouse and dependents) the scheduled expiration of the Initial Term.



“Good Reason” shall mean any of the following, without Employee’s prior consent: (i) a material,
adverse change in title, authority or duties (including the assignment of duties materially
inconsistent with the executive’s position), (ii) a reduction in Base Salary, or (iii) a relocation
of Employee’s principal worksite more than 50 miles.




     4.5. Termination of Obligations. Upon the resignation of Employee or termination of
Employee’s employment in accordance with the provisions of this Section 4, all obligations of
Employee and Employer hereunder shall be terminated except as otherwise provided herein.



     4.6. Resignation. Any termination of employment under this Agreement, whether or not
voluntary, will automatically constitute a resignation of Employee as an officer of Employer and
all subsidiaries of Employer, and if requested to do so by Employer’s Board of Directors, Employee
shall resign as a member of the Board of Directors of Employer and all subsidiaries of Employer;
provided, however,
that Employee shall execute such resignation documents as Employer may reasonably request in
order to evidence such resignation and this provision shall survive the termination of this
Agreement.



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5. NON-COMPETITION.




     5.1. Definitions. For purposes of this Section 5:



          (a) “Employer” shall mean Advanced Viral Research Corp. and any of its subsidiaries.




          (b) “Confidential Information” shall mean proprietary or confidential information or knowledge
of Employer, including without limitation, any financial information, marketing plans, strategies,
trade secrets, data, know-how, processes, techniques and other proprietary information of Employer
or its subsidiaries. The term “Confidential Information” does not include information (including
office practices and procedures) that is obvious, or that may readily be determined by any person
reasonably knowledgeable in the industry in which Employer operates by diligent review and
examination of public sources, or that becomes generally available to the public other than as a
result of a disclosure by Employee or any agent or other representative thereof.




          (c) “Inventions” shall mean any and all ideas, concepts, discoveries, inventions,
developments, improvements, trade secrets, technical data, know-how or other materials conceived,
devised, invented, developed or reduced to practice or tangible medium by Employee: (i) during the
term of this Agreement; (ii) that are related to and used in connection with the business of
Employer or its affiliates; and (iii) that are a result of Duties assigned to Employee by Employer.




          (d) “Restricted Period” shall mean the period commencing on the date of Employee’s employment
with Employer and ending two (2) years after the termination thereof.




     5.2. Confidential Information. During and for a period of five (5) years after the
term of the Agreement, Employee shall not directly or indirectly, divulge, furnish or make
accessible to any party not authorized by Employer to receive it, any of the Confidential
Information, other than in the course of performing his duties hereunder and in accordance with
Employer’s policies and regulations, as established from time to time, for the protection of the
Employer’s Confidential Information. Notwithstanding the foregoing, Employee shall not have any
obligation hereunder to keep confidential any Confidential Information to the extent disclosure of
any thereof is required by law, or determined in good faith by Employee to be necessary or
appropriate to comply with any legal or regulatory order, regulation or requirement; provided,
however, that in the event disclosure is required by law, Employee shall provide Employer
with reasonable notice of such requirement so that Employer may seek an appropriate protective
order and Employee shall reasonably cooperate with Employer’s efforts to seek such a protective
order. Upon termination of employment, all tangible evidence of such Confidential Information in
the possession of Employee shall be returned to Employer, and Employee shall not make or retain any
copies or excerpts thereof, except that Employee may retain copies of all materials that may be of
a personal nature to Employee. Employee further agrees not to use any Confidential Information for
the benefit of any person or entity other than Employer or its subsidiaries.



     5.3. Non-Solicitation. During the Restricted Period, Employee shall not influence or
attempt to influence customers of Employer or any of its present or future subsidiaries either
directly or indirectly, to divert their business from Employer to any individual, partnership,
firm, corporation, or other entity that is in competition with the business of Employer or any
subsidiary of Employer at any time during the Restricted Period. During the Restricted Period,
Employee shall not directly or indirectly solicit any of Employer’s employees or independent
contractors to work for (as an employee or independent contractor)
any business, individual, partnership, firm, corporation, or other entity in competition with
the business of Employer or any subsidiary of Employer at any time during the Non-Solicitation
Period.



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     5.4. Patents/Assignment and Transfer of Inventions. Employee shall disclose, assign
and transfer to the Company any and all Inventions. Employee shall assign any and all right,
title, or interest that Employee may have in such Inventions under patent law to the Employer and
Employer will be entitled to obtain and hold in its own name all patents with respect to such
Inventions. Employee also agrees to execute such documents and perform such activities as the
Employer may reasonably request to obtain such patents and to assist the Employer, as reasonably
requested by the Board in defending its patents.



     5.5. Remedies. In the event of an actual or threatened breach by the Employee of this Section
5, including any subparagraph hereof, Employer shall be entitled to an injunction restraining
Employee from its prohibited conduct. If the court should hold that the duration and/or scope
(geographic or otherwise) of the covenants contained herein are unreasonable, then, to the extent
permitted by law, the court may prescribe a duration and/or scope (geographic or otherwise), that
is reasonable and the parties agree to accept such determination, subject to their rights of
appeal. Nothing contained herein shall be construed as prohibiting Employer or any third party
from pursuing any of the remedies available to it for such breach or threatened breach, including
recovery of damages from Employee. In any action or proceeding to enforce the provisions of this
Section 5, the prevailing party shall be reimbursed by the other party for all costs incurred in
such action or proceeding, including, without limitation, all court costs and filing fees and all
reasonable attorneys’ fees, incurred either at the trial level or at the appellate level. If
Employee shall be in violation of any of the restrictive covenants contained in this Agreement,
then the time limitation otherwise applicable to such restrictive covenant shall be extended for a
period of time equal to the period of time during which the Employee has acted in violation of such
restrictive covenants. The existence of any claim or cause of action by Employee against Employer,
whether predicated upon this Agreement or otherwise, shall not constitute a defense to the
enforcement by Employer of the foregoing restrictive covenant, but shall be litigated separately.


6. NOTICES. Any notice, request, demand, offer, payment or communication required or permitted to
be given by any provision of this Agreement shall be deemed to have been delivered and given for
all purposes if written and if (a) delivered personally or by courier or delivery service, at the
time of such delivery; or (b) directed by registered or certified United States mail, postage and
charges prepaid, addressed to the intended recipient, at the address specified below, at such time
that the intended recipient or its agent signs or executes the receipt:




	 	 	 	 	 
	 

	 	If to Employer:
	 	Advanced Viral Research Corp.
	 

	 	 	 	200 Corporate Boulevard South
	 

	 	 	 	Yonkers, New York 10701
	 

	 	 	 	Attn: Chairman of the Board
	 

	 	 	 	Tel: 914-376-7383
	 
	 	 	 	 
	 

	 	If to Employee:
	 	Dallas E. Hughes
	 

	 	 	 	22 Field Pond Road
	 

	 	 	 	Milford, MA 01757
	 

	 	 	 	Tel: 508-473-4842





Any party may change the address to which notices are to be mailed by giving written notice as
provided herein to the other party. Commencing immediately after the receipt of such notice, such
newly designated
address shall be such person’s address for purposes of all notices or other communications required
or permitted to be given pursuant to this Agreement.




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7. MISCELLANEOUS.




     7.1. Governing Law. This Agreement shall be construed pursuant to the laws of the
State of New York, and all of its provisions shall be administered according to and its validity
shall be determined under the laws of the State of New York without regard to any conflict or
choice of law issues.



     7.2. Gender and Number. Whenever appropriate, references in this Agreement in any
gender shall be construed to include all other genders, references in the singular shall be
construed to include the plural, and references in the plural shall be construed to include the
singular, unless the context clearly indicates to the contrary.



     7.3. Certain Words. The words “hereof,” “herein,” “hereunder,” and other similar
compounds of the word “here” shall mean and refer to the entire Agreement and not to any particular
section, provision or paragraph unless so required by the context.



     7.4. Captions. Paragraph titles or captions contained in this Agreement are inserted only as
a matter of convenience and/or reference, and they shall in no way be construed as limiting,
extending, defining or describing either the scope or intent of this Agreement or of any provision
hereof.



     7.5. Counterparts. This Agreement may be executed in one or more counterparts, and any such
counterpart shall, for all purposes, be deemed an original, but all such counterparts together
shall constitute but one and the same instrument.



     7.6. Severability. The invalidity or unenforceability of any provision hereunder (or any
portion of such a provision) shall not affect the validity or enforceability of the remaining
provisions (or remaining portions of such provisions) of this Agreement.



     7.7. Entire Agreement. This Agreement (and all other documents executed
simultaneously herewith or pursuant hereto) constitutes the entire agreement among the parties
pertaining to the subject matter hereof, and supersedes and revokes any and all prior or existing
agreements, written or oral, relating to the subject matter hereof, and this Agreement shall be
solely determinative of the subject matter hereof.



     7.8. Restrictive Covenant. In the event the non-solicitation clause or any other
restrictive covenant of this Agreement shall be deemed unenforceable, invalid or overbroad in whole
or in part for any reason, then any arbitration panel or court of competent jurisdiction is hereby
authorized, requested and instructed to reform such provision(s) to provide for the maximum
competitive restraints upon Employee’s activities (in time and geographic area), which may then be
legal and valid.



     7.9. Waiver. Either Employer or Employee may, at any time or times, waive (in whole or in
part) any rights or privileges to which it or he may be entitled hereunder. However, no waiver by
any party of any condition or of the breach of any term, covenant, representation or warranty
contained in this Agreement, in any one or more instances, shall be deemed to be or construed as a
further continuing waiver of any other condition or of any breach of any other terms, covenants,
representations or warranties contained in this Agreement, and no waiver shall be effective unless
it is in writing and signed by the waiving party.



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     7.10. Attorneys’ Fees. In the event that either party shall be required to retain the
services of an attorney to enforce any of his or its rights hereunder, the prevailing party in any
arbitration or court action shall be entitled to receive from the other party all costs and
expenses including (but not limited to) court costs and attorneys’ fees (whether in the arbitration
or in a court of original jurisdiction or one or more courts of appellate jurisdiction) incurred by
him or it in connection therewith. The parties hereby expressly confer on the arbitrator the right
to award costs and attorneys’ fees in the arbitration.



     7.11. Dispute Resolution. Except for any dispute or controversy in which Employer is
seeking injunctive relief pursuant to Section 5, Employee and Employer shall settle by arbitration
any dispute or controversy arising in connection with this Agreement, whether or not such dispute
involves a plan subject to the Employee Retirement Income Security Act of 1974, as amended. Such
arbitration shall be conducted in accordance with the rules of the American Arbitration Association
before a panel of three arbitrators sitting in New York City, New York or such other location as
shall be mutually agreed by the parties. The award of the arbitrators shall be final and
nonappealable, and judgment may be entered on the award of the arbitrators in any court having
proper jurisdiction. The arbitrators shall have authority to award all remedies available under
law. The arbitrators shall assess arbitration fees and expenses against the parties in their
discretion. EMPLOYEE ACKNOWLEDGES THAT BY SIGNING THIS AGREEMENT, EMPLOYEE IS WAIVING ANY RIGHT
THAT EMPLOYEE MAY HAVE TO A JURY TRIAL OR, OTHER THAN AS PROVIDED BY SECTION 5, A TRIAL BEFORE A
JUDGE IN CONNECTION WITH, OR RELATING TO, A CLAIM.



     7.12. Venue. Any litigation arising hereunder shall be instituted only in New York City, New
York, the place where this Agreement was executed, and all parties hereto agree that venue shall be
proper in said county for all such legal or equitable proceedings.



     7.13. Assignment. The rights and obligations of the parties under this Agreement shall inure
to the benefit of and shall be binding upon their successors, assigns, and/or other legal
representatives. Additionally, covenants in this Agreement which are for the benefit of Employer
also shall run in favor of Employer’s subsidiaries. This Agreement shall not be assignable by
Employer or Employee. The services of Employee are personal and his obligations may not be
delegated by his except as otherwise provided herein.



     7.14. Amendment. This Agreement may not be amended, modified, superseded, canceled, or
terminated, and any of the matters, covenants, representations, warranties or conditions hereof may
not be waived, except by a written instrument executed by Employer and Employee or, in the case of
a waiver, by the party to be charged with such waiver.



     7.15. No Third Party Beneficiary. Nothing expressed or implied in this Agreement is
intended or shall be construed to confer upon or give any person, other than Employer and Employee
and their respective successors and permitted assigns, any rights or remedies under or by reason of
this Agreement.



     7.16. Indemnification. To the fullest extent permitted by law and Employer’s
certificate of incorporation and by-laws, Employer shall promptly indemnify Employee for all
amounts (including, without limitation, judgments, fines, settlement payments, losses, damages,
costs and expenses (including reasonable attorneys’ fees)) incurred or paid by the Employee in
connection with any action, proceeding, suit or investigation arising out of or relating to the
performance by Employee of services for (or acting as a fiduciary of any Employee benefit plans,
programs or arrangements of) Employer or any of its subsidiaries or affiliates, including as a
director, officer or employee of Employer or any such subsidiary or affiliate. Employer also
agrees to maintain a directors’ and officers’ liability insurance policy covering Employee to the
extent Employer provides such coverage for its other executive officers.



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     7.17. Tax Withholding. All payments to the Employee under this Agreement will be
subject to the withholding of all applicable employment and income taxes.



[Signatures on next page]




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     IN WITNESS WHEREOF, Employer and Employee have caused this Agreement to be executed on the day
and year first above written.



	 	 	 	 	 
	 	EMPLOYER:


ADVANCED VIRAL RESEARCH CORP.

 	 
	 	By:  	/s/ Stephen M. Elliston
 	 
	 	 	Name:  	Stephen M. Elliston 	 
	 	 	Title:  	President 	 
	 



	 	 	 	 	 
	 	EMPLOYEE:

 	 
	 	/s/ Dallas E. Hughes
 	 
	 	 	 
	 	 	 
	 



[Signature Page to Hughes Employment Agreement]





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