hamiltonemploymentagreement.htm


    
      

      

    



    EMPLOYMENT
AGREEMENT

    


    This
Agreement (the “Agreement”), dated as of March 11, 2009 (the
“Effective Date”) by and between DOR BioPharma, Inc., a Delaware corporation
having a place of business at 850 Bear Tavern Road, Suite 201, Ewing, NJ 08628
(the “Corporation”), and Brian L. Hamilton, MD, PhD, an individual (the
“Employee”).

    


    W I T N E
S S E T H:

    


    WHEREAS,
the Corporation desires to employ Employee as Senior Vice President and Chief
Medical Officer, and the Employee desires to be employed by the Corporation as
Senior Vice President and Chief Medical Officer, all pursuant to the terms and
conditions hereinafter set forth;

    


    NOW,
THEREFORE, in consideration of the foregoing and the mutual promises and
covenants herein contained, it is agreed as follows:

    


    
      	
              1.

            	
              EMPL0YMENT
      DUTIES

            


    

     

    The
Corporation engages and employs Employee, and Employee hereby accepts engagement
and employment, as Senior Vice President and Chief Medical Officer reporting to
the Chief Executive Officer of the Corporation, and shall perform high quality,
full-time service to the Corporation to direct, supervise and have
responsibility for the clinical development efforts of the Corporation,
including, but not limited to: (i) directing and supervising the clinical
research and regulatory strategies of the Corporation; (ii) managing the
development personnel of the Corporation; and (iii) medical monitoring of the
Corporation’s ongoing and planned clinical trials and such other activities as
may be reasonably requested by the Chief Executive Officer or the Board of
Directors of the Corporation.  Employee acknowledges and understands
that his employment may entail significant travel on behalf of the
Corporation. Employee’s relocation
to the Princeton area is anticipated within one (1) year of date hereof (but in
any event not to exceed 24 months from date hereof) provided that sufficient
funding for corporation is in place providing for at least twelve (12) months of
operation.  Corporation will provide Employee with a mutually
agreeable relocation package consistent with biotech standards for a comparable
company.

     

    
      	
              2.

            	
              EMPLOYMENT
      TERM

            


    

    


    Employee’s employment hereunder shall
be for a period of two (2) years, unless extended by mutual agreement of the
parties (the “Term”).

    


    
      	
              3.

            	
              COMPENSATION

            


    

    


    As compensation for the performance of
Employee’s duties on behalf of the Corporation, Employee shall be compensated as
follows:

    


    
      	
                             
      (a)

            	
              (i)        
      The Corporation shall pay Employee an annual base salary (“Base
      Salary”) of two hundred and seventy thousand dollars ($270,000) per annum,
      payable in accordance with the usual payroll period of the
      Corporation.

            


    

    


    (ii)        The
Corporation shall pay employee a minimum annual bonus of seventy thousand
dollars ($70,000), payable at the end of each calendar year in prorated amount
if necessary.  Such bonus may be increased at the recommendation of
the CEO and by the approval of the Board of Directors.

    


    (b)   Contingent
upon Employee’s acceptance of this Agreement, the Corporation will grant to
Employee Options (“Options”) to purchase one million (1,000,000) shares of DOR
Common Stock.  Two hundred and fifty thousand (250,000) options will
vest immediately and the remainder will vest on each three (3) month anniversary
of the grant date of this form at a rate of sixty-two thousand, five hundred
(62,500) options per quarter while Employee continues to be employed by
Corporation.  The exercise price of such Options shall be equal to the
market price of DOR common stock as of the market close on the Effective Date of
this Agreement.  The Options will be granted pursuant to the
Corporation’s Employee Stock Option Plan and the Corporation’s standard Stock
Option Agreement.  All vested options shall be exercisable for a
period of one year following termination, subject to extension in the discretion
of the Stock Option Plan administrator.  Upon a change in control due
to merger or acquisition, all Employee options shall become fully vested, and be
exercisable for a period of 3 years after the merger or acquisition (unless they
would have expired sooner pursuant to their natural term).  In the
event of death of Employee during Term, all unvested options shall immediately
vest and remain exercisable for the rest of their natural term and become
property of Employee’s immediate family.

    


    (c)         
The Corporation shall withhold all applicable federal, state and local taxes;
social security; workers’ compensation contributions; and such other amounts as
may be required by law or agreed upon by the parties with respect to the
compensation payable to the Employee pursuant to section 3(a)
hereof.

    


    (d)         
The Corporation shall reimburse Employee for all normal, usual and necessary
expenses incurred by Employee in furtherance of the business and affairs of the
Corporation, including reasonable travel and entertainment, against receipt by
the Corporation of appropriate vouchers or other proof of Employee’s
expenditures and otherwise in accordance with the policy of the
Corporation.

    


    (e)         
 During the Term, Employee shall be entitled to a maximum of four (4) weeks
paid vacation per annum.  Unused vacation may be carried over to
successive years upon approval of the Chief Executive Officer.

    


    (f)          
The Corporation shall make available to Employee and his dependents such
medical, disability, life insurance and such other benefits as the Corporation
makes available to its other senior officers and directors.  Employee
may elect to have the Corporation reimburse Employee for payments made to his
own family medical plan.

    


    
      	
              4.

            	
              REPRESENTATIONS AND
      WARRANTIES BY EMPLOYEE AND
CORPORATION

            


    

    


    (a)         Employee
hereby represents and warrants to the Corporation as follows:

    


    (i)         Neither
the execution and delivery of this Agreement nor the performance by Employee of
his duties and other obligations hereunder violate or will violate any statute,
law, determination or award, or conflict with or constitute a default under
(whether immediately, upon the giving of notice or lapse of time or both) any
prior employment agreement, contract, or other instrument to which Employee is a
party or by which he is bound.

    


    (ii)         Employee
has the full right, power and legal capacity to enter and deliver this Agreement
and to perform his duties and other obligations hereunder. This Agreement
constitutes the legal, valid and binding obligation of Employee enforceable
against him in accordance with its terms. No approvals or consents of any
persons or entities are required for Employee to execute and deliver this
Agreement or perform his duties and other obligations hereunder.

    


    (b)         The
Corporation hereby represents and warrants to Employee as follows:

    


    (i)         The
Corporation is duly organized, validly existing and in good standing under the
laws of the State of Delaware, with all requisite corporate power and authority
to own its properties and conduct its business in the manner presently
contemplated.

    


    (ii)         The
Corporation has full power and authority to enter into this Agreement and to
incur and perform its obligations hereunder. This Agreement constitutes the
legal, valid and binding obligation of the Corporation enforceable against it in
accordance with its terms. Except as expressly set forth herein, no approvals or
consents of any persons or entities are required for Corporation to execute and
deliver this Agreement or perform its duties and other obligations
hereunder.

    


    (iii)       
The execution, delivery and performance by the Corporation of this Agreement
does not conflict with or result in a breach or violation of or constitute a
default under (whether immediately, upon the giving of notice or lapse of time
or both) the certificate of incorporation or by-laws of the Corporation, or any
agreement or instrument to which the Corporation is a party or by which the
Corporation or any of its properties may be bound or affected.

     

    5.          NON-COMPETITION

    


    (a)        Employee
understands and recognizes that his services to the Corporation are special and
unique and agrees that, during the term of this Agreement and for a period of
two (2) years following the termination of the Employee’s employment with the
Corporation (or one (1) year in the event that the Employee is terminated within
1 year of the Effective Date), employee shall not in any manner, directly or
indirectly, on behalf of himself or any person, firm, partnership, joint
venture, corporation or other business entity (‘Person”), enter into or engage
in any business competitive with the Corporation’s business or research
activities, either as an individual for his own account, or as a partner, joint
venturer, executive, agent, consultant, salesperson, officer, director of a
Person operating or intending to operate in the area of the use of any of the
compounds owned or licensed by the Corporation during the time of his
employ.

    


    (b)        During the Term and for two (2)
years (or one (1) year in the event that the Employee is terminated within 1
year of the Effective Date) following the termination of the Employee’s
employment with the Corporation, Employee shall not, directly or indirectly,
without the prior written consent of the Corporation:

     

          
 (i)      interfere with, disrupt or
attempt to disrupt any past, present or prospective relationship, contractual or
otherwise ,
between the Corporation and any of its licensors, licensees, clients,
customers, suppliers, employees, consultants or other related parties, or
solicit or induce for hire any of the employees or agents of the Corporation, or
any such individual who in the past was employed or retained by the Corporation
within six (6) months of the termination of said individual’s employment or
retention by the Corporation; or

     

               
(ii)            solicit
or accept employment or be retained by any party who, at any time during the
term of this Agreement, was a customer or supplier of the Corporation or any of
its affiliates, other than Biopharm Solutions, Inc. or any licensor or licensee
thereof where his position will be related to the business of the
Corporation.

    


                 
 (c)         In the event that
Employee breaches any provisions of this Section 5 or
there is a threatened
breach,                  then,
in addition to any other rights which the Corporation may have, the Corporation
shall be entitled without the posting of a bond or other security to injunctive
relief to enforce the restrictions contained herein.

    


      
(d)  Employee
represents that his spouse’s consulting company, Biopharm Solutions, Inc., will
not compete with any of DOR’s existing or future programs and will also abide by
Section 5 of this Agreement during the term of this Agreement.

    
 

    
      	
              6.

            	
              CONFIDENTIAL
      INFORMATION

            


    

    


    (a)         Employee
agrees that during the course of his employment or at any time after
termination, he will not disclose or make accessible to any other person, the
Corporation’s or any of its subsidiaries’ or affiliates’, (collectively the
“Affiliates”) products, services and technology, both current and under
development, promotion and marketing programs, business plans, lists, customer
lists, product or licensing opportunities, investor lists, trade secrets and
other confidential and proprietary business information of the Corporation or
the Affiliates. Employee agrees: (i) not to use any such information for himself
or others; and (ii) not to take any such material or reproductions thereof in
any form or media from the Corporation’s facilities at any time during his
employment by the Corporation, except as required in Employee’s duties to the
Corporation. Employee agrees immediately to return all such material and
reproductions thereof in his possession to the Corporation upon request and in
any event upon termination of employment.

    


    (b)         Except
with prior written authorization by the Corporation, Employee agrees not to
disclose or publish any of the confidential, technical or business information
or material of the Corporation, to any suppliers, licensors, licensees,
customers, partners or other third parties to whom the Corporation owes an
obligation of confidence, at any time during or after his employment with the
Corporation.

    


    (c)         Employee
hereby assigns to the Corporation all right, title and interest he may have or
acquire in all inventions (including patent rights) developed by Employee during
the term of this Agreement (hereinafter the “Inventions”) and agrees that all
Inventions shall be the sole property of the Corporation and its assigns, and
the Corporation and its assigns shall be the sole owner of all patents,
copyrights and other rights in connection therewith. Employee further agrees to
assist the Corporation in every proper way (but at the Corporation’s expense) to
obtain and from time to time enforce patents, copyrights or other rights on said
Inventions in any and all countries. Employee hereby irrevocably designates
counsel to the Corporation as Employee’s agent and attorney-in-fact to do all
lawful acts necessary to apply for and obtain patents and copyrights and to
enforce the Corporation’s rights under this Section. This Section shall survive
the termination of this Agreement for any reason.

    


    (d)         The
Employee recognizes that in the course of his duties hereunder, he may receive
from Affiliates or others information which may be considered “material,
nonpublic information” concerning a public company that is subject to the
reporting requirements of the Securities and Exchange Act of 1934, as amended.
The Employee agrees not to:

    


    (i)          Buy
or sell any security, option, bond or warrant while in possession of relevant
material, nonpublic information received from Affiliates or others in connection
herewith;

    


    (ii)       Provide
Affiliates with information with respect to any public company that may be
considered material, nonpublic information; or

    


    (iii)       Provide
any person with material, nonpublic information, received from Affiliates,
including any relative, associate, or other individual who intends to, or may
otherwise directly or indirectly benefit from, such information.

    


    
      	
              7.

            	
              TERMINATION

            


    

    


      
(a)        The Employee’s employment
hereunder shall begin on the Effective Date and shall continue for the period
set forth in Section 2 hereof unless renewed by mutual agreement or sooner
terminated upon the first to occur of the following events:

    


    (i)         The
death of the Employee;

    


    (ii)         One
year following the merger or consolidation in which either more than fifty
percent of the voting power of the Corporation is transferred or the Corporation
is not the surviving entity, or sale or other disposition of all or
substantially all the assets of the Corporation;

    


    (iii)    Termination
by the Board of Directors of the Corporation for Just
Cause.   Any of the following actions by the Employee shall
constitute “Just Cause”:

    


    (A)          Material
breach by the Employee of Section 1, Section 5 or Section 6 of this
Agreement;

    


    (B)          Material
breach by the Employee of any provision of this Agreement other than Section 5
or Section 6 which is not cured by the Employee within thirty (30) days of
notice thereof from the Corporation;

    


    (C)          Any
action by the Employee to intentionally harm the Corporation or any action of
gross negligence by the Employee; or

    


    (D)          The
conviction of the Employee of a felony.

    


    (iv)    Termination by
the Employee for Just Cause.   Any of the following actions or
omissions by the Corporation shall constitute just cause, subject to the notice
and cure requirements below, provided that the Employee terminates employment
with the Corporation within one year following the initial existence of one or
more of the following conditions, without the consent of the
Executive:

    


    
      	
              (A)  

            	
              Material
      diminution of base salary;

            


    

    


    
      	
              (B)  

            	
              Material
      diminution of the Employee’s authority, duties or responsibilities;
      or

            


    

    


    
      	
              (C)  

            	
              Material
      breach by the Corporation of any provision of this Agreement which is not
      cured by the Corporation within thirty (30) days of notice thereof from
      the Employee.

            


    

     

          
The Employee must provide notice to the Corporation of the existence of the
“just cause” condition not later than 90 days of its initial existence and the
Corporation shall have 30 days from the date of the Employee notice to cure the
condition giving rise to such notice.

    


    (b)        Upon
termination by the Corporation pursuant to either subparagraph (i) or (iii) of
paragraph (a) above or by Employee other than pursuant to subparagraph (iv) of
paragraph (a) above, the Employee (or his estate in the event of termination
pursuant to subparagraph (i)) shall be entitled to receive the Base Salary plus
Bonus accrued but unpaid as of the date of termination including any vacation
time accrued but not taken.

    


    (c)          Upon
termination by the Corporation without Just Cause or pursuant to subparagraphs
(i), (ii) or (iv) of paragraph (a) above, then the term of the Agreement as set
forth in Section 2 hereof shall be deemed to have been terminated as of such
date and (i) the Corporation shall pay to the Employee (or his estate in the
event of termination pursuant to subparagraph (i)), six months salary (subject
to set-off if termination occurs during first full year of employment) and any
accrued Bonuses and any vacation accrued but not taken, payable upon the normal
payroll periods of the Corporation with such payments to begin on the first
payroll period following the Employee’s termination of employment (“Severance
Period”).  Notwithstanding anything herein to the contrary, each
payment made during the Severance Period shall be deemed to be a separate
payment within the meaning of Section 409A of the Code and the regulations
thereunder.  Health benefits and life insurance will also be
maintained for Employee (or his dependents in the event of termination pursuant
to subparagraph (i)) by Company during severance period.  No unvested
options shall vest beyond the termination date, except where previously noted in
Section 3 (b) or at the discretion of the Stock Option Plan
Administrator.  

    


    (d)           Notwithstanding
anything to the contrary in this Agreement, if the Employee is determined by the
Corporation to be a “specified employee” within the meaning of Code Section
409A(a)(2)(B)(i) at the time of the Employee’s separation from service with the
Corporation and if any payment or benefit to which the Employee become entitled
to under this Agreement would be considered deferred compensation subject to
interest and additional tax imposed pursuant to Section 409A(a) of the Code
as a result of the application of Section 409A(a)(2)(B)(i) of the Code, no
such payment or benefit payable or provided to the Employee prior to the earlier
of (i) the expiration of the six (6) month period following the date of the
Employee’s “separation from service” (as such term is defined by Code Section
409A and the regulations promulgated thereunder), or (ii) the date of the
Employee’s death, but only to the extent such delayed commencement is otherwise
required in order to avoid a prohibited distribution under Code
Section 409A(a)(2).   The payments and benefits to which the
Employee would otherwise be entitled during the first six (6) months following
separation from service shall be accumulated and paid or provided, as
applicable, in a lump sum, on the date that is six (6) months and one day
following the Employee’s separation from service (or if such date does not fall
on a business day of the Corporation, the next following business day) and any
remaining payments or benefits will be paid in accordance with the normal
payment dates specified for them herein.

     

    8.          NOTICES

    


    Any
notice or other communication under this Agreement shall be in writing and shall
be deemed to have been given: when delivered personally against receipt
therefor; one (1) day after being sent by Federal Express or similar overnight
delivery; or three (3) days after being mailed registered or certified mail,
postage prepaid, return receipt requested, to either party at the address set
forth above, or to such other address as such party shall give by notice
hereunder to the other party.

    


    9.          SEVERABILITY OF PROVISIONS

    


    If any
provision of this Agreement shall be declared by a court of competent
jurisdiction to be invalid, illegal or incapable of being enforced in whole or
in part, such provision shall be interpreted so as to remain enforceable to the
maximum extent permissible consistent with applicable law and the remaining
conditions and provisions or portions thereof shall nevertheless remain in full
force and effect and enforceable to the extent they are valid, legal and
enforceable, and no provision shall be deemed dependent upon any other covenant
or provision unless so expressed herein.

    


    


    10.           ENTIRE AGREEMENT
MODIFICATION

    


    This
Agreement contains the entire agreement of the parties relating to the subject
matter hereof, and the parties hereto have made no agreements, representations
or warranties relating to the subject matter of this Agreement which are not set
forth herein. No modification of this Agreement shall be valid unless made in
writing and signed by the parties hereto.

    


    11.          BINDING
EFFECT

    


    The
rights, benefits, duties and obligations under this Agreement shall inure to,
and be binding upon, the Corporation, its successors and assigns, and upon
Employee and his legal representatives. This Agreement constitutes a personal
service agreement, and the performance of Employee’s obligations hereunder may
not be transferred or assigned by Employee.

    


    12.          NON-WAIVER

    


    The
failure of either party to insist upon the strict performance of any of the
terms, conditions and provisions of this Agreement shall not be construed as a
waiver or relinquishment of future compliance therewith, and said terms,
conditions and provisions shall remain in full force and effect. No waiver of
any term or condition of this Agreement on the part of either party shall be
effective for any purpose whatsoever unless such waiver is in writing and signed
by such party.

    


    13.          GOVERNING
LAW

    


    This
Agreement shall be governed by, and construed and interpreted in accordance
with, the laws of the State of New Jersey without regard to principles of
conflict of laws.

    


    14.          HEADINGS

    


    The
headings of paragraphs are inserted for convenience and shall not affect any
interpretation of this Agreement.

    


    


    


    IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.

    


    DOR
BIOPHARMA, INC.

    


    


    By: /s/Christopher J.
Schaber

    Christopher
J. Schaber, PhD

    President
and Chief Executive Officer

    


    


    EMPLOYEE:

    


    


    By: /s/Brian L.
Hamilton

    Brian L.
Hamilton, MD, PhD