EMPLOYMENT AGREEMENT
EXHIBIT 10.2
EXECUTION COPY
THIS EMPLOYMENT AGREEMENT (hereinafter referred to as the “Employment Agreement”) is
made and entered into as of the 25th day of September, 2008, by and among GETTING READY
CORPORATION, a Delaware corporation (“Employer”), WINSTON LABORATORIES, INC., a Delaware
corporation and wholly-owned subsidiary of Employer (“Winston”), and XXXX X. XXXXXXXXX,
M.D., an individual having an address at 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx
(“Employee”).
WITNESSETH:
WHEREAS, the Employer desires to employ the Employee to perform the Duties (as defined herein)
and the Employee desires to accept employment on the terms and conditions hereinafter stated; and
WHEREAS, in the course of his employment, the Employee will gain knowledge of the research,
manufacture, sale, distribution and marketing of the Employer’s products; and
WHEREAS, the Employer would suffer irreparable harm if the Employee were to use such
knowledge, information and personal relationships in competition with the Employer;
NOW, THEREFORE, for and in consideration of the employment of Employee by the Employer, and
for and in consideration of the premises, the mutual covenants and agreements hereinbelow set
forth, and for other good and valuable consideration, the receipt, adequacy and sufficiency of
which are hereby acknowledged and accepted by all parties hereto and will not hereafter be
questioned or challenged, the Employer and the Employee covenant and agree as follows:
1. Definitions.
(a) “Affiliate” as used herein with respect to a specified person shall mean a
person or entity that directly, or indirectly through one or more intermediaries, controls
or is controlled by, or is under common control with, the person specified. As used herein,
“control” means the power, by ownership of voting securities, agreement or otherwise, to
direct the management of a person or entity.
(b) “Cause” as used herein means the following: (i) the conviction of the
Employee of, or the entry of a plea of guilty or nolo contendere by the Employee to, any
misdemeanor involving moral turpitude or any felony; (ii) fraud, misappropriation or
embezzlement by the Employee with respect to the Employer or any Subsidiary or Affiliate
thereof, including without limitation Winston; (iii) the Employee’s willful failure, gross
negligence or gross misconduct in the performance of his assigned duties for the Employer or
any Subsidiary or Affiliate thereof, including without limitation
Winston; (iv) the Employee’s material breach of a fiduciary duty to the Employer or any
Subsidiary or Affiliate thereof, including without limitation Winston; (v) any wrongful act
or omission of the Employee not at the express direction of the Board of Directors of
Employer or any Subsidiary or Affiliate thereof, including without limitation Winston, that
reflects materially and adversely on the integrity and reputation for honesty and fair
dealing of the Employer or any Subsidiary or Affiliate thereof, including without limitation
Winston, or has a material detrimental effect on the Employer’s financial condition,
position or business, or the financial condition, position or business of any Subsidiary or
Affiliate thereof, including without limitation Winston; or (vi) the breach by the Employee
of any material term of this Employment Agreement (provided that in the case of
clauses (iii),(iv),(v) and (vi) (but excluding breaches of Section 6 or 7), Employer shall
have provided Employee with written notice of the acts, breaches or other events that would
otherwise constitute “Cause” hereunder and Employee shall have failed to cure or remedy such
acts, breaches or other events within ten (10) days following receipt of such notice, and
provided further that the failure of the Employer or any Subsidiary to
achieve any financial objective shall not serve as the basis for Cause hereunder).
(c) “Disability” as used herein means the incapacity of Employee due to
physical or mental illness where the Employee has been unable to perform his duties during
the preceding 90 days, or where said incapacity has been determined to exist or have existed
such that he is or was unable to perform his previously assigned duties, and that such
incapacity continued, has continued and/or will continue for such period of time of at least
90 days during any consecutive 365 day period by either (i) the liability insurance carrier
for Employer or its Subsidiaries or (ii) the concurring opinions of two board certified,
licensed physicians (as selected one by Employer and one by Employee); provided that
Employee shall, within 15 days after the written request of Employer or any Subsidiary or
Affiliate thereof, including without limitation Winston, submit to a physical and/or mental
examination for purposes of determining Disability.
(d) “Employment Termination Date” as used herein means the effective date the
Employee’s employment with Employer is terminated or ceases for any reason.
(e) “Subsidiary” means and refers to any corporation, association or other
business entity of which more than fifty percent (50%) of the issued and outstanding shares
of capital stock or equity interests is owned or controlled, directly or indirectly, by the
Employer.
Page 2 of 11
2. Employment.
(a) The Employer hereby employs the Employee as President and Chief Executive Officer
of the Employer and Winston to perform the Duties (as defined below) for the term of this
Employment Agreement, and the Employee hereby accepts and agrees to such employment, subject
to the provisions of this Employment Agreement. At any time during the term of this
Employment Agreement, the Board of Directors of
Employer and/or Winston may choose to recruit and hire a new President and Chief
Executive Officer of Employer and/or Winston.
Employee hereby agrees that, in the event he
is replaced as President and Chief Executive Officer of Employer and Winston during the term
of this Employment Agreement, he will assume the title of Vice Chairman of Employer without
further alteration of the terms and provisions of this Employment Agreement, including
without limitation the compensation to which he is entitled, and such change in title shall
not be treated as a termination of employment for purposes of Section 5.
(b) Employee hereby agrees that he will at all times faithfully, industriously and to
the best of his ability, experience, and talents, perform all of the duties as may be
established in writing by the Board of Directors of Employer and/or Winston from time to
time (the “Duties”) in accordance with the Employer’s and/or Winston’s reasonable
direction.
(c) The term of this Employment Agreement shall commence on the date hereof and
terminate on the date that is two (2) years from the date hereof (the “Agreement
Termination Date”).
(d) Commencing on the date hereof, Employee shall receive compensation from the
Employer as follows:
(i) An annual base salary (the “Base Salary”) of (a) Two Hundred Sixty Thousand
Dollars ($260,000) for the period commencing on the date hereof and ending on the first
anniversary of the date hereof and (b) Two Hundred Eighty Thousand Dollars ($280,000) for the
period commencing on the day after the first anniversary of the date hereof and ending on the
Agreement Termination Date, which Base Salary shall be paid in accordance with Employer’s
payroll procedures. Employee shall not be entitled to any additional compensation hereunder
for services he provides to any Subsidiary or Affiliate of Employer; provided that
Employee may receive additional compensation for services it provides to Opko Health, Inc.
(“Opko”) and Exopharma, Inc. (“Exopharma”) pursuant to separate agreements
with such entities.
(ii) Major medical, 401K and life insurance plans in forms substantially similar to those
provided to Employee by Winston prior to the execution and delivery of this Employment
Agreement; and
(iii) Certain executive bonus and stock option plans, which shall be based upon the
performance of the Employee relative to certain benchmarks and initiatives established by the
Board of Directors of Employer from time to time.
3. Other Employment. The Employer acknowledges and agrees that the Employee need not
devote his full working time to the performance of the Duties and that Employee may become employed
by or provide services for or on behalf of other companies or organizations, provided
that, such employment or performance of services shall not violate the terms and provisions
of this Employment Agreement, including without limitation those set forth in
Sections 2, 5, 6, 7 and 9 herein and provided further that employee shall
devote at least 60% of his full working time to his Duties hereunder.
Page 3 of 11
4. Vacation. Employee shall be entitled to six (6) weeks of paid vacation per year
during the term hereof.
5. Termination.
(a) The Employer may terminate the Employee’s employment under this Employment
Agreement at any time other than for Cause upon sixty (60) days prior written notice from
Employer to Employee. If (i) Employee’s employment is terminated by Employer without Cause
and not on account of death or Disability, and (ii) Employee has complied and continues to
comply with the requirements of Sections 6 and 7 hereof, then:
| (i) | the Employer shall pay to the Employee his Base Salary as in effect as of the Employment Termination Date for an additional twelve (12) months from the Employment Termination Date (the “Termination Payments”), to be paid in equal monthly installments as full compensation in payment for all claims under this Employment Agreement. | ||
| (ii) | In addition, the Employer will provide Employee with life insurance benefits, to the same extent it provides life insurance to its similarly situated active employees, for a period of twelve (12) months after the Employment Termination Date. | ||
| (iii) | To the extent that Employee is entitled to continuation coverage under COBRA, the Employer also shall pay the Employee’s portion of such continuation coverage for a period not to exceed twelve months (12) after the Employment Termination Date. | ||
| (iv) | If Employer terminates Employee’s employment as described in this Section 5(a), all benefits, not fully vested, will immediately fully vest. |
(b) The Board of Directors of the Employer may terminate the Employee’s employment
under this Employment Agreement at any time for Cause upon giving the Employee a notice of
termination stating specifically the reason for such termination for Cause. In the event of
a termination of Employee’s employment under this Employment Agreement for Cause or due to
the death or Disability of Employee, the Employee shall receive solely the Base Salary
through the date of his termination, plus any accrued benefits. Employer’s exercise of its
right to terminate hereunder shall be without prejudice to any other remedy to which
Employer may be entitled at law, in equity or under this Employment Agreement.
Page 4 of 11
(c) Employee may voluntarily terminate his employment upon sixty (60) days prior
written notice to Employer. Employee’s exercise of his right to terminate hereunder shall
be without prejudice to any other remedy to which Employee may be entitled by law, in
equity, or under this Employment Agreement.
(d) Notwithstanding anything to the contrary contained herein, the Employer and the
Employee specifically acknowledge and agree that Sections 1, 5, 6, 7, 8, 9, 10, 11, 12, 13,
14 and 15 hereof shall survive termination or cessation of the Employee’s employment under
this Employment Agreement or the expiration of this Employment Agreement and shall continue
to be in full force and effect thereafter.
6. Confidential Information. The Employee acknowledges that all confidential
information regarding the business of the Employer and its Subsidiaries and Affiliates is the
exclusive property of the Employer and/or such Subsidiaries and Affiliates. On or before the date
that his employment with the Employer terminates or ceases, the Employee shall return to the
Employer all copies of any material involving such confidential information, and the Employee
agrees that he will not, directly or indirectly, divulge or use such information, whether or not
such information is in written or other tangible form. The Employee also shall return to the
Employer by that date any other items in his possession, custody or control that are the property
of the Employer. This Section 6 is intended to cover confidential information of the Employer and
its Subsidiaries and Affiliates that relates to the business of the Employer and its Subsidiaries
and Affiliates that has not otherwise been made public (other than public disclosures in violation
of any confidentiality obligation) and shall not apply to Employee responses that may be required
by proper governmental or judicial inquiry, provided that Employee shall provide Employer
with notice of any such compelled disclosure and shall cooperate with Employer (at Employer’s cost)
in seeking a protective order for such confidential information.
7. Non-Solicitation and Non-Competition.
(a) During the “Non-Competition Period” (hereinafter defined) the Employee shall not,
directly or indirectly, anywhere in the world, (i) employ or solicit for employment, or
assist in any way in solicitation for employment, any person employed by the Employer or any
of its Subsidiaries or Affiliates then or at any time within the preceding 12 months;
(ii) solicit, or assist in any way in the solicitation of business from any of the
Employer’s or its Subsidiaries’ or Affiliates’ clients or prospective clients, either for
the Employee’s own benefit or the benefit of anyone other than the Employer, its
Subsidiaries or Affiliates, unless the business being solicited is not competitive with the
services or products provided by the Employer, its Subsidiaries or Affiliates; (iii) induce
or attempt to induce any of the Employer’s or its Subsidiaries’ or Affiliates’ customers or
prospective customers to reduce its purchase of services or products from the Employer, its
Subsidiaries or Affiliates or to cease having the Employer or its Subsidiaries or Affiliates
provide services or prospective services or develop products or prospective products for any
such customer or prospective customer; or (iv) except through the Employer, Winston, Opko or
Exopharma, engage in, carry on, participate in or have a financial interest in, or assist,
consult or advise any individual or entity engaging in, carrying on or participating in, any
business relating to the research and
development, manufacture, sale, distribution or marketing of any products competitive
with products sold by, proposed to be sold by, or under development by Employer, its
Subsidiaries or Affiliates. Clause (i) shall not restrict Employee from publishing general
solicitations for employment, not directed toward a particular person or persons. Clause
(ii) shall not apply to Employee’s passive ownership of no more than 2% of any publicly
traded entity.
Page 5 of 11
(b) For purposes of this Employment Agreement, the term “Non-Competition
Period” shall include the period that Employee is employed or retained by Employer (or
an Affiliate or Subsidiary of Employer) and for a period of twenty-four (24) months after
the Employment Termination Date.
8. Reasonableness; Injunctive Relief; Enforcement. Employee agrees that the covenants
and agreements contained in Sections 6 and 7 are, taken as a whole, fair and reasonable in their
geographic scope and duration, and Employee will not raise any issue of the reasonableness of the
scope or duration of any such covenants in any proceeding to enforce any such covenants. Employee
acknowledges that Employer has entered into this Agreement in reliance, among other things, upon
the fulfillment by Employee of all of the covenants and agreements of Sections 6 and 7. Employee
understands and agrees that Employer may not be adequately compensated by damages for a breach by
Employee of any of the covenants and agreements contained in Section 6 or 7, and that Employer
shall, in addition to all other remedies, be entitled to injunctive relief and specific
performance. Employee hereby affirmatively waives the requirement that Employer post any bond,
demonstrate the likelihood of irreparable damage to Employer or demonstrate that any actual damages
will be suffered by Employer or any other entity seeking enforcement hereof as a result of
Employee’s breach of any provision of Section 6 or 7. The covenants and agreements contained in
Section 6 or 7 shall be construed as separate covenants and agreements, and if any court shall
finally determine that the restraints provided for in any such covenants and agreements are too
broad as to the area, activity or time covered, said area, activity or time covered shall be
reduced to whatever extent the court deems reasonable, and such covenants and agreements shall be
enforced as to such reduced area, activity or time. Nothing herein contained will be construed as
prohibiting Employer from pursuing any other remedies available to it for such breach or threatened
breach, including the recovery of money damages, and it shall also be entitled to the payment of
any and all reasonable fees, disbursements, and other charges of the attorneys and collection
agents, court costs, and all other costs of enforcement. All time periods referenced in this
Agreement shall be computed by excluding from such computation any time during which there is
pending in any court of competent jurisdiction any action (including any appeal from any final
judgment) brought by any person or entity, whether or not a party to this Agreement, in which
action Employer seeks to enforce the agreements and covenants in this Agreement or in which any
Person contests the validity of such agreements and covenants or their enforceability or seeks to
avoid their performance or enforcement.
Page 6 of 11
9. Assignment of Patents. The Employee shall and hereby covenants and agrees to and
does hereby, without charge to Winston but at Winston’s expense, transfer and assign to Winston all
right, title, interest, claim and demand of the Employee in, to and under and by virtue of any and
all inventions and discoveries including invention disclosures, patent
applications and patents and all worldwide counterparts thereof and including continuations,
continuations-in-part, divisionals, extensions and supplementary protection certificates relating
to pharmaceutical products and methods of using such products to treat mammals, including humans,
for any medical use exclusive of dermatogical or ophthalmic uses and which Employee invents
following the execution of this Agreement (the “Patents”). The Employee hereby covenants
and agrees without charge to Winston or the Employer but at Winston’s or the Employer’s expense:
(i) to disclose promptly to Winston and the Employer all Patents and (ii) upon Winston or the
Employer’s request, to execute promptly a specific assignment to Winston of all rights, title,
interest, claim and demand of the Employee in, to, and under and by virtue of the Patents.
10. Offsets. There will be no right of set-off in respect of any claim, debt or
obligation against any payment to or benefit for the Employee provided for in this Employment
Agreement.
11. Legal Fees. The party prevailing in any civil action, arbitration or other
proceeding shall be entitled to recover from the nonprevailing party, in addition to any damages
the prevailing party may have been awarded, all reasonable expenses that the prevailing party may
have incurred in connection with such proceeding, including reasonable accounting fees, attorneys’
fees and expert witnesses’ fees.
12. Successor and Assigns. The Employer and Winston will require any successor
(whether direct or indirect, by purchase, merger, consolidation, reorganization or otherwise) to
all or substantially all of the business or assets of the Employer or Winston, as the case may be,
by agreement in form and substance satisfactory to the Employee, expressly to assume and agree to
perform this Agreement in the same manner and to the same extent the Employer or Winston would be
required to perform if no such succession had taken place. This Agreement will be binding upon and
inure to the benefit of the Employer and Winston and any successor to the Employer or Winston, as
applicable, including without limitation any persons acquiring directly or indirectly all or
substantially all of the business or assets of the Employer or Winston whether by purchase, merger,
consolidation, reorganization or otherwise (and such successor shall thereafter be deemed the
“Employer” or “Winston,” as the case may be, for the purposes of this Agreement), but will not
otherwise be assignable, transferable or delegable by the Employer, Winston or Employee.
13. Governing Law; Jurisdiction. This Employment Agreement shall be governed and
construed in accordance with the substantive laws of the State of Florida (without reference to
conflicts of laws principles). Each of the parties consents and voluntarily submits to personal
jurisdiction in the State of Florida and the United States District Court for the Southern District
of Florida in any proceeding arising out of or relating to this Agreement, and agrees that all
claims raised in such proceeding may be heard and determined in such court. Each of the parties
further consents and agrees that such party may be served with process in the same manner as a
notice may be given under this Agreement.
Page 7 of 11
14. Notices. All notices, requests, waivers and other communications made pursuant to
this Employment Agreement will be in writing and will be conclusively deemed to have been
duly given (i) when hand delivered to another party; (ii) upon receipt, when sent by facsimile
to the number set forth below with written confirmation of transmission; or (iii) the next business
day after deposit with a national overnight delivery service, postage prepaid, addressed to a party
as set forth below with next business day delivery guaranteed. Each person or entity making a
communication hereunder by facsimile will promptly confirm by telephone to the person to whom such
communication was addressed each communication made by it by facsimile pursuant hereto. A party
may change or supplement the addresses given below, or designate additional addresses for purposes
of this Section 14, by giving the other party written notice of the new address in the manner set
forth above.
| If to Employer or Winston: | Getting Ready Corporation | |||
| 0000 Xxxxxxxx Xxxxxxxxx | ||||
| Xxxxx 000 | ||||
| Attention: Xxxxx X. Xxxxxxx | ||||
| Phone: (000) 000-0000 | ||||
| Facsimile: (000) 000-0000 | ||||
| with a copy to: | Xxxxxx Xxxxxx & Associates, P.A. | |||
| 000 Xxxxxxxx Xxxxxx, Xxxxx 0000 | ||||
| Xxxxx, XX 00000 | ||||
| Attention: Xxxxxx Xxxxxx, Esq. | ||||
| Phone: (000) 000-0000 | ||||
| Facsimile: (000) 000-0000 | ||||
| and | ||||
| Akerman Senterfitt | ||||
| Xxx Xxxxxxxxx Xxxxx Xxxxxx | ||||
| Xxxxx 0000 | ||||
| Xxxxx, XX 00000 | ||||
| Attention: Xxxxx X. Xxxxxxxxxxx, Esq. | ||||
| Phone: (000) 000-0000 | ||||
| Facsimile: (000) 000-0000 | ||||
| If to Employee: | Xxxx X. Xxxxxxxxx, M.D. | |||
| 000 Xxxxxxxxx Xxxx | ||||
| Xxxxxxxxx, XX 00000 | ||||
| Phone: 000-000-0000 | ||||
| Facsimile: 847-362-8394 |
Page 8 of 11
| with a copy to: | Seyfarth Xxxx LLP | |||
| 000 Xxxxx Xxxxxxxx Xxxxxx | ||||
| Xxxxx 0000 | ||||
| Xxxxxxx, Xxx 00000 | ||||
| Attention: Xxxxxx Xxxxxxx, Esq. | ||||
| Phone: (000) 000-0000 | ||||
| Facsimile: (000) 000-0000 |
15. General.
(a) This Employment Agreement contains the entire understanding of the parties hereto
with respect to the subject matter hereof and, except as provided herein, supersedes all
previous written and oral agreements between the parties with respect to the subject matter
set forth herein. This Employment Agreement shall not inure to benefit of Employee’s
successors, heirs and/or legal representative.
(b) This Employment Agreement may not be modified or amended except by a writing signed
by all of the parties hereto. No party shall be deemed to have waived compliance by another
party of any provision of this Employment Agreement unless such waiver is contained in a
written instrument signed by the waiving party, and no waiver that may be given by a party
will be applicable except in the specific instance for which it is given. The failure of any
party to enforce at any time any of the provisions of this Employment Agreement or to
exercise any right or option contained in this Employment Agreement or to require at any
time performance of any of the provisions of this Employment Agreement, by any of the other
parties shall not be construed to be a waiver of such provisions and shall not affect the
validity of this Employment Agreement or any of its provisions or the right of such party
thereafter to enforce each provision of this Employment Agreement. No course of dealing
shall operate as a waiver or modification of any provision of this Employment Agreement or
otherwise prejudice such party’s rights, powers and remedies.
(c) The invalidity or unenforceability of any particular term or provision of this
Employment Agreement shall not affect the validity or enforceability of any other term or
provision hereof, and except as otherwise provided herein, this Employment Agreement shall
be construed in all respects as if such invalid or unenforceable term or provision were
omitted.
(d) This Employment Agreement may be executed in multiple counterparts, each of which
shall be deemed an original, but all of which shall constitute one and the same agreement.
(e) The Employer and/or Winston may withhold from any amounts payable to the Employee
hereunder all federal, state, city, or other taxes as the Employer
and/or Winston determines it is required to withhold pursuant to any law or government
regulation or ruling.
Page 9 of 11
(f) Section titles or captions in this Employment Agreement are included for purposes
of convenience only and shall not be considered a part of this Employment Agreement in
construing or interpreting any of its provisions. All references in this Employment
Agreement to Sections shall refer to Sections of this Agreement unless the context clearly
otherwise requires. When used in this Employment Agreement, the word “including” shall have
its common meaning and any list of items that may follow such word shall not be deemed to
represent a complete list of the contents of the referent of the subject.
(g) No right or remedy conferred upon or reserved to any of the parties under the terms
of this Employment Agreement is intended to be, nor shall it be deemed, exclusive of any
other right or remedy provided in this Employment Agreement or by law or equity, but each
shall be cumulative of every other right or remedy.
(h) The parties do not intend that this Employment Agreement shall confer on any third
party any right, remedy or benefit or that any third party shall have any right to enforce
any provision of this Employment Agreement.
[SIGNATURE PAGE FOLLOWS]
Page 10 of 11
IN WITNESS WHEREOF, the Employer and Winston have caused this Employment Agreement to be
executed by their duly authorized representatives, and the Employee has executed this Employment
Agreement as set forth below.
EMPLOYER:
| GETTING READY CORPORATION |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | President | |||
WINSTON:
| WINSTON LABORATORIES, INC. |
||||
| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | CFO | |||
EMPLOYEE:
| /s/ Xxxx X. Xxxxxxxxx, M.D. | ||||
| Xxxx X. Xxxxxxxxx, M.D. | ||||
Page 11 of 11
