Exhibit 10.1
EMPLOYMENT AGREEMENT entered into as of May 5, 2003 (the "Effective
Date") between The BioBalance Corporation., a Delaware corporation (the
"Company"), and Xxxxxx X'Xxxxxxx ("Executive").
W I T N E S S E T H
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WHEREAS, the Company is a development stage pharmaceutical company, which
owns probiotic technology and intellectual property for the treatment of
Irritable Bowel Syndrome (IBS), Inflammatory Bowel Disease (IBD) and other GI
conditions.
WHEREAS, the Company wishes to employ Executive as its Chief Operating
Officer; and
WHEREAS, Executive wishes to be so employed;
NOW in consideration of the mutual covenants contained herein it is agreed as
follows:
1. EMPLOYMENT. DUTIES AND ACCEPTANCE
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1.1 The Company hereby employs Executive for the Term (as hereinafter defined),
and Executive hereby agrees to be employed by the Company, on the terms and
conditions contained herein, as its Chief Operating Officer or in such other
comparable executive managerial position or positions with the Company or its
subsidiaries or affiliates as shall hereafter be designated by the Board of
Directors of the Company (the "Board"). Executive shall devote all of his
business time, energy, skill and efforts to the performance of his duties
hereunder and shall faithfully and diligently serve the Company. Executive
shall engage in no other business during the Term, except for the passive
supervision of his investments; provided that such activities do not materially
interfere with Executive's obligations hereunder. Executive shall report to and
shall be subject to the direction of the Company's chief executive officer
("CEO"),if and when a CEO shall be appointed by the Board, and the Board, and in
connection therewith, he shall perform duties commensurate with such offices as
shall reasonably be directed by the CEO (when appointed) and the Board.
Executive's duties shall be performed primarily at the Company's offices in New
York City.
1.2 Executive shall also serve, if requested by the Board, as a director or
officer of the Company's parent, New York Health Care, Inc. ("Parent"), and
subsidiaries and affiliates of the Company, if nominated and elected or
appointed by the board of directors of the applicable entity, and shall perform
such additional executive duties as the CEO or the Board may from time to time
requires; provided that such additional positions and duties are commensurate
with Executive's position at the Company. The Executive will not be paid
additional compensation for such additional executive duties unless the Board (
or the Compensation Committee of the Board) shall determine that additional
compensation is appropriate. In such case, the amount of additional
compensation will be determined by the Board or such Committee.
1.3 The Executive hereby acknowledges (a) that Parent is a publicly-held
company and, as a result, the Board and the board of directors of Parent have
implemented certain codes of conduct
and policies applicable to directors, executive officers and other employees of
Parent and the Company, including codes of conduct, communications, xxxxxxx
xxxxxxx and whisteblower policies; and (b) that he has received and reviewed
copies of such codes and policies and fully understands the contents thereof.
Executive hereby agrees to strictly comply with and observe the provisions of
such codes and policies and to promptly execute any agreements or confirmations
generally distributed by the Company or Parent to employees requiring such
employees to abide by such codes and policies. The Executive understands that a
failure to comply with or observe the provisions of any such code or policy may
result in disciplinary action, including termination of employment for cause
under Section 6.3
2. TERM OF EMPLOYMENT
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The term of Executive's employment under this Agreement (the "Term")
commenced on the Effective Date and continues for a period of 36 consecutive
months from the Effective Date., unless sooner terminated as provided in Section
6 of this Agreement.
3. COMPENSATION
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3.1. As compensation for all services to be rendered pursuant to this
Agreement, the Company agrees to pay Executive, on a bi-weekly basis, a salary,
subject to Section 3.2, at the annual rate of two hundred thousand dollars
($200,000) ("Base Salary"). All payments of Base
Salary are subject to deductions and withholding in accordance with the
Company's payroll policy and applicable law.
3.2. The Executive's Base Salary will be increased to an annual rate
of Two Hundred and Twenty Five Thousand Dollars ($225,000) as of the closing of
another round of equity financing by the Parent or the Company during the Term
which shall have raised gross proceeds of at least five million dollars
($5,000,000). Such increased rate of Base Salary shall remain in effect from
the date of such closing to the earlier of expiration of the Term and the
termination pursuant to Section 6 hereofThe Compensation Committee of the Board
may, in its discretion, approve further increases in Base Salary.
3.2.1 Executive hereby acknowledges that he has been granted a ten-year
option to purchase two hundred thousand (200,000) shares of Parent's Common
Stock at an exercise price of $2.48 under Parent's existing stock option plan.
The stock option agreement that has been or will be issued by Parent contains
or will contain the following provisions, among others:
(a) The right to exercise the option shall vest in three equal
annual installments on the first three anniversaries of the date of
grant. No portion of the Option shall vest however on any such
anniversary if Executive is not then employed by the Company for
whatever reason, except as follow:
(i) The Company shall terminate Executive's employment
for any reason, except as set forth in Section 6.3 hereunder;
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(ii). The primary business of the Company shall be sold,
whether by sale, lease or licensing of assets, merger or
consolidation, sale of the Company's stock or other means of
disposition and transfer; or
(iii) A Change of Control (as defined in Section 7.3)
occurs with respect to the Company;
provided that should any of the exceptions listed above occur, all of
the Executive's unvested options shall immediately vest.
(b) The option, to the extent then exercisable, must be exercised
within 90days from the effective date of Executive's resignation or
termination of employment with the Company.
3.2.2 The Company will cause Parent to grant to Executive an option to
purchase Fifty Thousand (50,000) shares of Parent's Common Stock on each
anniversary date of the Effective Date (the "additional options"). The exercise
price of additional options shall be determined by the closing price of the
Parent Common Stock on the date of each grant as listed on NASDAQ or other
public exchange, if such Common Stock is then so listed, otherwise based on the
mean between the high bid and low asked price per share on the date of grant or,
or if there were no trades on such date, on the next preceding date on which
there was trading activity. Any additional options granted under this Agreement
will fully vest in six months following the date of each grant, subject to
Executive being employed by the Company on such date, and must be exercised
within 90 days of the effective date of Executive's resignation or termination
of employment with the Company.
3.2.3 The shares of the Company's Parent common stock which may be
purchased upon exercise of an option granted as contemplated by Sections 3.2.1
and 3.2.2 of this Agreement are to be purchased by Executive for investment
purposes only and no sale, offer to sell or transfer of such shares, or of any
shares or other securities issued in exchange for or in respect of such shares,
shall be made unless a registration statement under the Securities Act of 1933,
as amended, with respect to such shares is in effect, or an exemption from the
registration requirements of such Act is then in fact applicable to such shares.
3.3 The Company shall pay to Executive the following bonuses:
a. A payment in the amount of not less than 33% of Executive's
then Base Salary rate within 15 business days after the end of the first
year of the Term; provided that each of the milestones listed as Schedule A
hereto has been achieved as determined by the Compensation Committee of the
Board, in the good faith exercise of its discretion.
b. For the second and third years of the Term, Executive and
the Board shall jointly use commercially reasonable efforts determine in
writing the goals('milestones") to be achieved for that year writing,
within 45 days following the beginning of such year. The amount of the
bonus in years two and three will be at least 40% and 50%,
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respectively, of Executive's then Base Salary rate, payable within 15
business days after the end of such year, provided that each of milestones
for such year has been achieved, as determined by the Compensation
Committee of the Board, in the good faith exercise of its discretion.
c. The determination by the Compensation Committee of the Board
of any milestones to be achieved by the Company and the actual achievement
of such milestones shall be conclusive for all purposes of this Agreement.
4. BENEFITS & EXPENSES
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4.1 During the Term, Executive shall have the right to participate in
the Company's then existing medical and dental insurance and other employee
benefit plans and policies on the same terms as are then generally available to
other senior executives within the pharmaceutical industry in firms of similar
size and financial condition to the Company.
4.2 Executive shall be entitled to paid vacation each year during the
Term of this Agreement at the rate of four (4) weeks per annum. However,
Executive may not take such vacation in increments in excess of two consecutive
weeks. Vacation shall be taken each year and, if not taken, shall be carried
over for one (1) year and, if not taken during such carry-over period, shall be
forfeited.
4.3 The Company shall reimburse Executive, in accordance with the
practice followed from time to time for other executive officers within the
pharmaceutical industry in firms of similar size and financial condition to the
Company, for all reasonable and necessary business and traveling expenses and
other disbursements incurred by Executive for or on behalf of the Company in the
performance of Executive's duties hereunder, upon presentation by Executive of
an appropriate accounting or documentation of such expenses.
4.4 Executive shall be entitled to all rights and benefits for which
he shall be eligible under any additional bonus, participation or extra
compensation plan, pension, group insurance or other so-called "fringe" benefits
which the Company generally provides to its other senior executives.
4.5 Should Executive's employment by the Company be terminated,
other than for any reason set forth in Section 6.3 or Executive's resignation
without good reason, then Executive shall be entitled to (a) a severance payment
equal to one half of the Base Salary Rate salary in effect on the effective date
of termination plus the annual cash bonus (if any) payable by the Company to
Executive or his estate during the annual period immediately preceding the date
of termination, provided all conditions precedent to the payment of such bonus
have been satisfied. Such severance payment shall include any unused vacation
days and be payable in a lump sum payment within fifteen (15) days after the
termination of the Executive's employment; and (b)to continue to participate in
Company-paid medical and dental benefits for a period of six full months
following the termination date.
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5. INJUNCTIVE RELIEF
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5.1 It is acknowledged that it will be impossible to measure in money
the damages that would be suffered if Executive fails to comply with any of the
obligations herein imposed on him and that in the event of any such failure, the
Company will not have an adequate remedy at law. It is therefore agreed that the
Company shall be entitled to injunctive relief to enforce such obligations, and
that in the event that any action should be brought in equity to enforce any of
the provisions of this Agreement, Executive shall not raise the defense that
there is an adequate remedy at law.
6. TERMINATION
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6.1 If Executive shall die during the Term, the Term shall terminate
as of the date of death, except that Executive's legal representatives shall be
entitled to receive the salary provided for hereunder to the last day of the
month in which his death occurs and, further provided that Executive's legal
representatives shall be entitled to exercise any options granted to Executive
pursuant to Section 3 of this Agreement for a period of 90days following
Executive's death, if, and only if, such options would have been exercisable by
Executive at the time of Executive's death.
6.2 If during the Term, Executive shall become so physically or
mentally disabled, , so that he is unable to substantially perform his services
hereunder the Company for a period of six months from the commencement of such
disability, the Company may at any time after the end of such six month period,
by written notice to Executive (but before Executive has recovered from such
disability), terminate Executive's employment and all benefits hereunder, as of
a date specified in such notice. In the event Executive's employment and
benefits are terminated pursuant to this Section 6.2, Executive or his legal
representative shall be entitled to exercise the options granted to Executive
pursuant to Section 3 of this Agreement for a period of 90 days following the
effective date of such termination, if, and only if, such options would have
been exercisable by Executive at the time of such termination.
6.3 Notwithstanding anything herein to the contrary, the Company may,
without liability, terminate Executive's employment hereunder for Cause at any
time upon written notice from the Board specifying such cause, and thereafter
the Company's obligations and any options granted to Executive hereunder shall
cease and terminate. As used herein, the term "Cause" shall mean (a) conviction
of, or a plea of "guilty" or "no contest" to a felony under the laws of the
United States or any state thereof; (b) committing an act of fraud against, or
the misappropriation of property belonging to, the Company, Parent or any
subsidiary or affiliate of the Company; or a willful breach of duty in the
course of Executive's employment or habitual neglect of material duties in
connection with his employment; (c) a material breach of any confidentiality or
proprietary information agreement between Executive and the Company or any code
of conduct or other corporate governance policy adopted by Parent or the
Company; or (d) continued unsatisfactory performance after being given a written
warning and at least 45 days to improve performance.
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As a prior condition to Executive receiving any payment or benefit upon
termination of employment, Executive shall execute a full release of known and
unknown claims against the Company, its successors, affiliates, employees,
agents, advisors and representatives, in a form designated by the Company.
7. CHANGE IN CONTROL.
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7.1 After a Change in Control of the Company as defined under Section
7.3 hereof, Executive shall be entitled to a one-time additional compensation
payment in the amount equal to 2.99 times Executive's then current annual
compensation (including bonuses). Such additional compensation will be paid to
Executive in a lump sum within 30 days following such Change in Control takes
effect provided that Executive's employment by the Company is terminated (other
than for Cause) following such Change of Control. Said amount shall be
determined by counsel to the Company in consultation with the Company's
auditors.
7.2 To the extent that any such payment (alone or with other
compensation payable to the Executive) are subject to an excise tax under
Section 4999 of the Internal Revenue Code, or any successor provision, the
Company will make an additional cash payment to the Executive such that the
Executive's net after-tax compensation is not reduced by such excise tax. Any
compensation payable to Executive contingent on a Change in Control, and which
qualifies as a "parachute payment" under Section 280G of the Internal Revenue
Code shall be limited to the maximum amount that may be paid to Executive
without any part such compensation being deemed an "excess parachute payment"
under that section.
7.3 A "Change in Control" shall be deemed to have occurred in the
event (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"), or a group of such
"persons", is or becomes a "beneficial owner" (as defined in Rule 13d-e of the
Exchange Act), directly or indirectly, of 50% or more of the combined voting
power of the Company's outstanding securities, or (ii) of a merger,
consolidation or other business combination in which securities possessing 50%
or more of the total combined voting power of the Company's outstanding
securities are transferred to a person or persons different from the persons
holding those securities immediately prior to such transaction; or (iii) or the
sale, transfer or other disposition of all or substantially all of the Company's
assets; provided that no Change of Control shall be deemed have occurred as the
result of the transfer of the Company's voting securities to another
wholly-owned or majority-owned subsidiary of Parent, or the merger,
consolidation or other business combination between or among Parent and the
Company or between Parent and/or more one or subsidiaries of Parent and the
Company, or any acquisition of assets of the Company by Parent and/or one or
more subsidiaries of Parent so long as the Company's obligations under this
Agreement are assumed by the Parent or another subsidiary of Parent.
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8. PROTECTION OF CONFIDENTIAL INFORMATION AND COVENANT NOT TO COMPETE.
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Executive hereby covenants and agrees as follows:
8.1 Executive will, during the Term and thereafter, keep secret and
retain in the strictest confidence all confidential information of the Company,
including the Company's trade "know-how", or secrets, supplier lists or other
information, pricing policies, operational methods, technical processes,
formula, inventions and research projects, and other intellectual property
rights and business affairs of the Company, learned by him heretofore or
hereafter, and not to disclose them to anyone outside of the Company, either
during or after his employment with the Company (whether terminated with or
without cause), except in the course of performing his duties hereunder or with
the Company's express prior written consent. Confidential matters shall not
include any information which:
a. was previously known to Executive other than as a result of any
discussion with or disclosure by the Company;
b. is or becomes publicly known through no wrongful act or failure to act
of Executive;
c. is disclosed to third persons by the Company without restriction as to
further use or disclosure;
d. is disclosed to the public by a third party who has the right to
disclose it without restriction as to use or further disclosure; or
e. upon 10 days' prior written notice to the Company, is disclosed pursuant
to a statute, regulation or the order of a court of competent jurisdiction.
8.2 Promptly following the expiration or earlier termination of the
Term, Executive will promptly, or at any time the Company may so request,
deliver to a representative of the Company designated by CEO or the Board all
memoranda, computer stored information, disks, tapes, notes, records, reports,
manuals, drawings, blueprints and other Company owned documents (and all copies
thereof) relating to the Company's business and all property owned by the
Company, including computer and communications equipment (e.g., laptop computer,
cell phones and beepers) which Executive may then possess or have under his
control.
8.3 During the Term, and the 18-month period immediately thereafter
(the "Limitation Period") and whether employment is terminated with or without
Cause, Executive agrees that he will not engage, directly or indirectly (whether
as employee, consultant, investor, broker, partner or otherwise in any way), in
any business in which the Company was engaged during the Term or in which the
Company, during the Term, planned to engage and of which Executive was aware, or
employ or retain any person who was an employee or consultant of the Company
during the one-year period preceding such employment or retention.
Notwithstanding the foregoing but subject to the continued applicability of
Section 8.1, the
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Executive may during the Limitation Period be employed by non-probiotic
divisions of any company which has aggregate annual sales of not less than $250
million.
8.4 During the Term and for a period of 24 consecutive months after
the expiration or earlier termination of the Term, Executive will not directly,
indirectly, personally or through others, solicit or encourage, or attempt to
solicit or encourage (on Executive's own behalf or on behalf of any other person
or entity) for hire any employee or consultant of the Company or any of the
Company's affiliates.
8.5 If Executive commits a breach of any of the provisions of in
Sections 8.1-8.4, inclusive, of this Agreement, the Company shall have the
following rights and remedies:
8.5.1 The right and remedy to have the provisions of this Agreement
specifically enforced by any court having equity jurisdiction, it being
acknowledged and agreed that any such breach will cause irreparable injury to
the Company and that money damages will not provide an adequate remedy to the
Company; and
8.5.2 If any of the covenants contained in Sections 8.1- 8.4,
inclusive, of this Agreement, or any part thereof, is hereafter construed to be
invalid or unenforceable, the same shall not affect the remainder of the
covenant or covenants, which shall be given full effect, without regard to the
invalid portions.
8.5.3 The right and remedy to require executive to account for and pay
over to the Company all compensation, profits, accruals, monies, increments or
other benefits (collectively, "Benefits") derived, received or to be received by
Executive as the result of any transactions constituting a breach of any of the
provisions of Sections 8.1-8.4, inclusive, of this Agreement, and Executive
hereby agrees to account for and pay over such Benefits to the Company. Each of
the rights and remedies enumerated above shall be independent of the other, and
shall be severally enforceable, and all of such rights and remedies shall be in
addition to, and not in lieu of, any other rights and remedies available to the
Company under law or in equity.
8.6 If any of the covenants contained in Sections 8.1- 8.4,
inclusive, of this Agreement, or any part thereof, is held to be unenforceable
because of the duration of such provision or the area covered thereby, the
parties agree that the court making such determination shall have the power to
reduce the duration and/or area of such provision and, in its reduced form, said
provision shall then be enforceable.
8.7 The parties hereto intend to and hereby confer jurisdiction to
enforce the covenants contained in Sections 8.1- 8.4, inclusive, of this
Agreement, upon the courts of any state within the continental United States.
9. INSURANCE
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9.1 Executive agrees that the Company shall have the right at its
expense to acquire key man life insurance on the life of Executive in an amount
determined by the Company wherein
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the Company is named as the beneficiary of said life insurance policy.
Executive shall take whatever reasonable steps are necessary and required for
the Company to acquire said key man life insurance.
9.2 Executive shall be included in the normal insurance coverage as
provided for by the Parent's Directors & Officers insurance policy.
10. INDEMNIFICATION
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10.1 The Company shall indemnify Executive (which term includes
appropriate advances of funds for legal fees and expenses) to the maximum extent
permitted by applicable law against all costs, charges, expenses, judgments and
settlements incurred or sustained by him in connection with any action, suit or
proceeding to which he may be made a party by reason of his being an officer,
director or employee of the Company or of any subsidiary or affiliate of the
Company.
11. NOTICES
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11.1 All notices, requests, consents and other communications,
required or permitted to be given hereunder, shall be in writing and shall be
deemed to have been duly given if delivered personally or sent by facsimile
transmission (confirmed by first-class mail), or mailed first-class, postage
prepaid, by registered or certified mail (notices, sent by telegram or mailed
shall be deemed to have been given on the date sent), as follows (or to such
other address as either party shall designate by notice in writing to the other
in accordance herewith):
If to the Company, to:
The BioBalance Corporation
000 Xxxxxxx Xxxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000
and, if to the Executive, to:
Xxxxxx X'Xxxxxxx
00 Xxxxx Xxxxx Xxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
12. GENERAL
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12.1 This Agreement shall be governed by and construed and enforced
in accordance with the laws of the State of New York applicable to agreements
made and to be performed entirely in New York. Executive consents to the
exclusive jurisdiction of the Federal and State courts in New York on all
matters relating to this Agreement, and agrees that process may be served upon
him in the manner provided for notices hereunder.
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12.2 The article and section headings contained herein are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
12.3 This Agreement sets forth the entire agreement and understanding
of the parties relating to the subject matter hereof, and supersedes all prior
agreements, arrangements and understandings, written or oral, relating to the
subject matter hereof. Neither party to this Agreement has made any
representation, promise or inducement, and neither party shall be bound by or
liable for any alleged representation, promise or inducement not so set forth.
12.4 This Agreement and Executive's rights hereunder, other than the
right to receive payments of Base Salary and bonus compensation hereunder, may
not be assigned by Executive, and any attempted assignment without the Company's
prior written consent shall be null and void ab initio. The Company may assign
its rights, together with its obligations, hereunder in connection with any
sale, transfer or other disposition of all or substantially all of its business
or assets; in any event the obligations of the Company hereunder shall be
binding on its successors or assigns, whether by merger, consolidation or
acquisition of all or substantially all of its business or assets.
12.5 This Agreement may be amended, modified, superseded, cancelled,
renewed or extended and the terms or covenants hereof may be waived, only by a
written instrument executed by both of the parties hereto, or in the case of a
waiver, by the party waiving compliance. The failure of either party at any time
or times to require performance of any provision hereof shall in no manner
affect the right of such party at a latter time to enforce the same. No waiver
by either party of the breach of any term or covenant contained in this
Agreement, whether by conduct or otherwise, in any one or more instances, shall
be deemed to be, or construed as, a further or continuing waiver of any breach,
or a waiver of the breach of any other term or covenant contained in this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
The BioBalance Corporation
By:_________________________________
Name:
Title:
Executive:
________________________________
Xxxxxx X'Xxxxxxx
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SCHEDULE A
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YEAR I OBJECTIVES
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1. Develop a comprehensive Business Plan for the Company and gain
approval from the Board of Directors for implementation.
2. Develop a Company Budget which itemizes spending on a quarterly and
monthly basis. Gain Board approval for such Budget and maintain
overall Company spending within Budget.
3. Oversee the Company's efforts to obtain GRAS (Generally Recognized as
Safe) status for the Product by 1Q 04
4. Manage the completion of a safety clinical study of the Product at a
dose ten times the normal levels in 120-140 adult volunteers by 2Q04
and submit the results for publication. Total cost for the study
should not exceed $500k.
5. Develop and implement an efficacy study in approximately 200 IBS
patients in multiple sites. The study should begin by 4Q03 in at least
one site and all sites by 1Q04 unless delayed by Company funding
issues. The total cost of the study should not exceed $1.2MM.
6. Implement a long term safety study in 25-30 patients. The study should
begin by 1Q04 and the total cost should not exceed $350k.
7. Begin the process for prescription drug approval of the Product. The
Executive should identify and retain expert consultants as needed for
this effort. A pre-IND (Investigational New Drug) meeting or
conference call should occur before the end of 1Q04 to gain agreement
on a proposed Clinical Development plan for U.S. regulatory approval.
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