Amendment to Amended and Restated Employment Agreement
Exhibit 10.2
Amendment to Amended and Restated Employment Agreement
This Amendment to the Amended and Restated Employment Agreement (“Amendment”)
is entered into and made effective September 29, 2021 (“Amendment Effective Date”) by and between ADMA Biologics, Inc. (“ADMA”) and Xxxx X. Xxxxxxxx ("Executive").
RECITALS
WHEREAS, Executive and ADMA are parties to that certain
Amended and Restated Employment Agreement effective January 29, 2019 (“Agreement”); and
WHEREAS, Executive and ADMA desire to amend the Agreement as
set forth herein.
NOW THEREFORE, for good and valuable consideration, the
sufficiency and receipt of which is hereby acknowledged, Executive and ADMA agree as set forth below.
AGREEMENT
Section 1. Defined Terms. Unless otherwise defined within this Amendment, a capitalized term within this Amendment shall have the same meaning ascribed to the same capitalized
term within the Agreement.
Section 2. Amendment to Option Grants.
Section 2.5 of the Agreement is hereby renamed “Option and RSU Grants” and Section 2.5(a) of the Agreement is hereby superseded, deleted and replaced, in its entirety, with the following:
“(a) Executive has been granted options to purchase shares of common stock, par value $0.001 per share (the "Shares"), of the Company (the
"Options") and restricted stock units for the right to receive Shares of the Company (the “Restricted Stock Units”). Notwithstanding anything contained in the option grants or the grant of restricted stock units, the Company and the Executive have
agreed that (i) if the Executive's employment is terminated by the Company or its successor for any reason other than Cause (as defined below) or by the Executive for Good Reason (as defined below) immediately preceding or within two years after a
Change of Control (as defined below) of the Company, all Shares underlying such Options or Restricted Stock Units, as well as all Shares underlying any other options or restricted stock units granted in the future to Executive by the Company, shall
be immediately vested and in the case of the Options, exercisable, upon such termination of employment and with specific respect to such Options (and future options) shall remain exercisable until the earlier of the second anniversary of the
Executive's termination of employment or the expiration of the ten-year term of the Options (and any future options), and (ii) if the Executive's employment is terminated by the Company or its successor for any reason other than Cause, by the
Executive for Good Reason, or as a result of the Executive's death or Disability (as defined below) and clause (i) above does not apply, the portion of such Options or Restricted Stock Units (and any future options or restricted stock units) that
would have vested and in the case of the Options, become exercisable, on or before the first anniversary of the Executive's termination of employment had his employment with the Company continued will become immediately vested and in the case of the
Options, exercisable, upon such termination of employment and with specific respect to the Options, shall remain exercisable until the earlier of the second anniversary of the Executive's termination of employment or the expiration of the ten-year
term of the Options (and any future options).”
Section 3. Exclusion. The
following is hereby appended as a new subsection 2.5(c) of the Agreement:
Notwithstanding the foregoing, all references in this Section 2.5 to restricted stock units and restricted stock unit grants shall not apply
to that certain restricted stock unit grant contemplated in the Retention Award Agreement by and between the Executive and the Company, dated as of September 29, 2021.
Section 4. Amendment to Rights of Executive Upon Termination. Section 3.2(b)
of the Agreement is hereby superseded, deleted and replaced, in its entirety, with the following:
“(b) In the event that Executive's
employment is terminated (i) by the Company pursuant to Section 3.1(e) without Cause, (ii) due to a resignation by Executive pursuant to Section 3.4 for Good Reason or (iii) any termination resulting from a Change of Control in which this Agreement
is not assumed by the successor to the Company (if assumption is required for this Agreement to be binding upon such successor), the Company shall have no further obligation to Executive under this Agreement except for payment to Executive of (A)
his accrued, but unpaid Base Salary through the date of termination, (B) any unreimbursed expenses, subject to any right of set-off, (C) in the event the Executive elects continued coverage under COBRA, the Company will reimburse Executive for the
same portion of Executive's family COBRA health insurance premium that it paid during the Executive's employment up until the earlier of (i) the date eighteen (18) months after the date of Executive's termination and (ii) the date on which the
Executive is eligible for comparable health benefits with another company or business entity; provided, however, that in the event Executive's employment is terminated for the reasons stated above in this Section 3.2(b) immediately preceding or
within two years following a Change of Control (including, without limitation, the failure of a successor to assume), the Company will reimburse Executive for the same portion of Executive's family COBRA health insurance premium that it paid during
the Executive's employment up until the earlier of (i) the date twenty-four (24) months after the date of Executive's termination and (ii) the date on which the Executive is eligible for comparable health benefits with another company or business
entity, (D) any Target Bonus that has not been paid from the prior performance year to the extent the Board of Directors has determined in good faith that the goals have been attained, payable within 30 days of the date of termination, (E) a
severance payment equal to eighteen (18) months Base Salary plus one and one half (1.5) times the annual Target Bonus payable in 18 monthly, equal installments after termination; provided, however, that in the event Executive's employment is
terminated for the reasons stated above in this Section 3.2(b) immediately preceding or within two years following a Change of Control (including, without limitation, the failure of a successor to assume), such severance payment will be equal to
twenty-four (24) months Base Salary plus two (2) times the annual Target Bonus, payable in a lump sum within five business days of his termination, and (F) the accelerated vesting of the Shares underlying the Options and Restricted Stock Units as
provided under Section 2.5, as applicable.”
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Section 5. Governing Law. This
Amendment and any controversy arising out of or relating to this Amendment shall be governed by and construed in accordance with the internal laws of the State of New Jersey.
Section 6. Amendment Limited.
Except as expressly provided herein, each of the provisions of the Agreement shall remain in full force and effect following the execution of this Amendment.
Section 7. Counterparts; Facsimile.
This Amendment may be executed by facsimile signature and in any number of counterparts, each of which shall be enforceable against the parties actually executing such counterparts, and all of which together shall constitute one instrument.
Section 8. Conflicts. In the
event of any conflict or inconsistency between the provisions of this Amendment and the provisions of the Agreement, the provisions of this Amendment shall control.
Section 9. Amendment. On and
after the execution of this Amendment, each reference in the Agreement to the Agreement shall mean and be a reference to the Agreement as
modified by this Amendment.
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IN WITNESS WHEREOF, ADMA and Executive have executed this Amendment as of the date set forth below.
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XXXX X. XXXXXXXX
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Signature:
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/s/ Xxxx X. Xxxxxxxx
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Signature:
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/s/ Xxxxxx X. Xxxx
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Print:
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Xxxx X. Xxxxxxxx
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Print:
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Xxxxxx X. Xxxx
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Date:
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September 29, 2021
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Title:
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Chairman of the Board of Directors
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Date:
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September 29, 2021
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