EMPLOYMENT AGREEMENT
Exhibit
10.1
This
Employment Agreement (the “Agreement”) is entered into
by and between Xxxx X. Xxxxxxx (“you” or
“your”) and Innovus Pharmaceuticals, Inc., a Nevada
corporation (the “Company”). This Agreement has an
effective date of April 27, 2018 (the “Effective
Date”).
In
consideration of the mutual covenants and promises made in this
Agreement, you and the Company agree as follows:
1. Position
and Responsibilities. As of the
Effective Date, you will be employed by the Company as the
Company’s Vice President, Chief Financial Officer and
Principal Accounting Officer (“CFO”). As CFO, you shall
report directly to the Company’s President and Chief
Executive Officer (the “CEO”). Your office will be
located at the Company’s headquarters at 0000 Xxxxx Xxxx, Xxx
Xxxxx, XX 00000.
Nothing
herein shall preclude you from (i) serving, with the prior
written consent of the Company as a member of the board of
directors or advisory boards (or their equivalents in the case of a
non-corporate entity) of non-competing businesses and charitable
organizations, (ii) engaging in charitable activities and
community affairs, and (iii) managing your personal
investments and affairs. The Company hereby acknowledges your
ownership of (or relationship with) the entities identified in
Exhibit A and
consents to such ownership or relationship for so long as such
entities continue to be a non-competing business with the
Company.
2. Term.
Your employment with the Company is at-will and either you or the
Company may terminate your employment at any time and for any
reason, with or without Cause/Good Reason (as each are defined
below), in each case subject to the terms and provisions of this
Agreement.
3. Salary,
Bonus, Equity Incentives, Benefits and
Indemnification. For avoidance of
doubt, the Company’s Board of Directors (the
“Board”) may delegate its authority and
responsibilities under this Section 3 to a committee of
members of the Board.
(a) Base
Salary. Commencing on the Effective Date, you will be paid
an annual base salary of Two Hundred Fifty thousand dollars
($250,000.00) (the “Base Salary”) for your services as
CFO, payable in the time and manner that the Company customarily
pays its employees provided that you will receive pro-rata payments
of Base Salary at least once each calendar month. Your Base Salary
will be reviewed periodically by the Board and may be increased
(but not decreased) by the Board.
(b) Bonuses.
You will be eligible to earn an annual cash bonus based on personal
performance objectives reasonably established by the Board. Your
annual target cash bonus amount will be equal to 25% of your then
annual Base Salary rate (with such rate determined as of the day
after the applicable anniversary of the Effective Date for such
fiscal year). The actual amount of the annual bonus paid to you, if
any, shall be determined by the Board in its sole discretion and
may be more or less than the target amount. If your employment ends
during any given fiscal year for any reason and whether or not you
execute the Mutual Release described in Section 6(e), you will be
paid a pro-rata amount of the target bonus determined by the
percentage of time you were employed during the fiscal year. The
annual bonus, if any, will be paid to you in cash by March 1 of the
following fiscal year, the payment of which is conditioned upon
your continued employment to and through the date of
payment.
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Compensatory Equity. Subject to approval
by the Board, the Company will grant you Restricted Stock Units
(“RSU”) covering One Million Two Hundred Thousand
(1,200,000) shares of the Company’s common stock (the
“Initial RSU Grant”). Four Hundred Thousand (400,000)
shares of the Initial RSU Grant shall be vested after one (1) year
of employment. Subject to your continued Service, the remaining
shares of the Initial RSU shall vest in eight (8) pro-rata equal
installments on a quarterly basis over the following two (2) years.
In addition to the Initial RSU Grant, you will be eligible for
annual grants of either RSU or stock options at the elections of
the Board. These additional grants may occur more frequently than
annually at the election of the Board.
For
purposes of this Agreement, the RSU Grant and any other Company
compensatory equity grants issued to you shall be collectively
referred to herein as “Compensatory Equity”. To the
extent you receive any stock options, stock appreciation rights or
similar derivative securities, you shall be entitled to according
to the applicable plan in place. In connection with any award of
Compensatory Equity (including the RSU Grant), you shall be
permitted at your election to satisfy the applicable exercise price
and/or tax withholding obligations via share withholding with the
shares that are surrendered to the Company valued at their then
fair market value as of the applicable vesting or settlement
date(s).
You
shall be eligible for additional grants of Compensatory Equity in
order to ensure that you have competitive equity compensation. All
grants of Compensatory Equity shall be issued pursuant to: (i) a
Board-approved employee stock incentive plan (the
“Plan”) and (ii) an effective registration statement
filed (and maintained) by the Company with the Securities and
Exchange Commission in accordance with the Securities Act of 1933,
as amended.
Additionally, all
outstanding unvested Compensatory Equity awards shall fully vest
and become exercisable (to the extent exercise is required) upon a
Change in Control occurring during your Service (as defined below).
You may also elect to establish a trading plan for Company
securities in accordance with Rule 10b5-1 of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”).
For purposes of this Agreement and your Compensatory Equity,
“Service” shall mean service by you as an employee,
director and/or consultant of the Company (or any subsidiary or
parent or affiliated entity of the Company).
(c) Benefits.
Commencing with the Effective Date, you will be entitled to
participate in all Company employee benefit plans and programs at
the time or thereafter made available to Company senior executive
officers including, without limitation and to the extent available,
major medical and dental coverage for you and your dependents,
group life insurance, any savings or profit sharing plans (such as
a 401K plan), deferred compensation plans, stock option incentive
plans, long-term disability insurance, holidays, vacation, sick
time, and other employee benefit programs sponsored by the Company.
The Company intends to instate some of the foregoing plans and
benefits in the future.
Notwithstanding the
foregoing, commencing with the Effective Date and thereafter on
each anniversary of the Effective Date, you shall incrementally
accrue 20 days of paid vacation time, three (3) sick days, and two
(2) floating holidays. Such accrued vacation and sick time will be
subject to any maximum accrual limits under the Company’s
policies. Any unused portion shall be paid to you upon termination
of your employment with the Company in accordance with applicable
state and federal law
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Indemnification. In the event that you
are made a party or threatened to be made a party to any action,
suit, or proceeding, whether civil, criminal, administrative, or
investigative (a “Proceeding”), by reason of your
employment with, or serving as an officer or director of, the
Company, the Company shall indemnify and hold you harmless, and
defend you to the fullest extent authorized by the laws of the
state in which the Company is incorporated, as the same exist and
may hereafter be amended, against any and all claims, demands,
suits, judgments, assessments, and settlements (collectively the
“Claims”), including all expenses incurred or suffered
by you in connection therewith and such indemnification shall
continue as to you even after you are no longer providing Service,
and shall inure to the benefit of your heirs, executors, and
administrators. The Company shall have the right to undertake, with
counsel or other representatives of its own choosing, the defense
or settlement of any Claims. In the event that the Company shall
fail to notify you, within ten (10) days of its receipt of your
written notice, that the Company has elected to undertake such
defense or settlement, or if at any time the Company shall
otherwise fail to diligently defend or pursue settlement of such
Claims, then you shall have the right to undertake the defense,
compromise, or settlement of such Claims, in which event the
Company shall hold you harmless from any legal fees incurred by you
for your counsel. Neither you nor the Company shall settle any
Claims without the prior written consent of the other, which
consent shall not be unreasonably withheld or delayed. Regardless
of which party is conducting the defense of any such Claims, the
other party, with counsel or other representatives of its own
choosing and at its sole cost and expense, shall have the right to
consult with the party conducting the defense of such Claims and
its counsel or other representatives concerning such Claims and you
and the respective counsel or other representatives shall cooperate
with respect to such Claims. The party conducting the defense of
any such Claims and its counsel shall in any case keep the other
party and its counsel (if any) fully informed as to the status of
such Claims and any matters relating thereto. You and the Company
shall provide to the other such records, books, documents, and
other materials as shall reasonably be necessary for each to
conduct or evaluate the defense of any Claims, and will generally
cooperate with respect to any matters relating thereto. This
Section 3(d) shall remain in effect after this Agreement is
terminated, regardless of the reasons for such termination. The
indemnification provided to you pursuant to this Section 3(d) shall
not supersede or reduce any indemnification provided to you under
any separate agreement, or the By-Laws of the Company; in this
regard, it is intended that this Agreement shall expand and extend
your rights to receive indemnification. The Company shall maintain
a directors and officers’ liability insurance policy
(including coverage through the sixth anniversary of cessation of
all of your services to the Company) covering you in your capacity
as an officer and director of the Company and any Company
affiliate.
4. Expense
Reimbursement. You are
authorized to incur on behalf of the Company only such reasonable
expenses (including travel and entertainment) in connection with
the business of the Company as are in conformity with the
Company’s published guidelines. The Company shall reimburse
you for all such reasonable expenses incurred in connection with
the business of the Company upon the presentation by you, from time
to time, of an itemized account of such expenditures and receipts,
which account shall be in form and substance in conformity with the
rules and regulations of the Internal Revenue Service.
Change
in Control
(a) Definition.
For purposes of this Agreement, “Change in Control”
shall mean a “change in control event” as defined under
Treasury Regulation Section 1.409A-3(i)(5)) as in effect on the
Effective Date or any change in control definition provided by the
Plan.
(a) Code
Section 280G. In the event that it is determined that any
payment or distribution of any type to or for your benefit made by
the Company, by any of its affiliates, by any person who acquires
ownership or effective control or ownership of a substantial
portion of the Company’s assets (within the meaning of
Section 280G of the Code or by any affiliate of such person,
whether paid or payable or distributed or distributable pursuant to
the terms of this Agreement or otherwise (the “Total
Payments”), would be subject to the excise tax imposed by
Section 4999 of the Code or any interest or penalties with respect
to such excise tax (such excise tax, together with any such
interest or penalties, are collectively referred to as the
“Excise Tax”), then such payments or distributions or
benefits shall be payable either:
(i) in
full; or
(ii) as
to the maximum value of such lesser amount which would result in no
portion of such payments or distributions or benefits being subject
to the Excise Tax.
You
shall receive the greater, on an after-tax basis, of (i) or (ii)
above.
If the
Total Payments must be reduced as provided in the previous
paragraph, the reduction shall occur in the following order: (1)
reduction of cash payments for which the full amount is treated as
a "parachute payment" (as defined under Code Section 280G and its
regulations); (2) cancellation of accelerated vesting (or, if
necessary, payment) of cash awards for which the full amount in not
treated as a parachute payment; (3) reduction of any continued
employee benefits and (4) cancellation of any accelerated vesting
of equity awards. In selecting the equity awards (if any) for which
vesting will be reduced under clause (4) of the preceding sentence,
awards shall be selected in a manner that maximizes the after-tax
aggregate amount of reduced Total Payments provided to you,
provided that if (and only if) necessary in order to avoid the
imposition of an additional tax under Section 409A of the Code,
awards instead shall be selected in the reverse order of the date
of grant. For the avoidance of doubt, for purposes of measuring an
equity compensation award's value to you when performing the
determinations under the preceding paragraph, such award's value
shall equal the then aggregate fair market value of the vested
shares underlying the award less any aggregate exercise price less
applicable taxes. Also, if two or more equity awards are granted on
the same date, each award will be reduced on a pro-rata
basis.
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All
mathematical determinations and all determinations of whether any
of the Total Payments are parachute payments that are required to
be made under this Section 5(b), shall be made by a nationally
recognized independent audit firm selected by the Company (the
“Accountants”), who shall provide their determination,
together with detailed supporting calculations regarding the amount
of any relevant matters, both to the Company and to you. Unless you
consent in writing, the Accountants may not be an audit firm that
is then providing services in any capacity to the person or entity
that is acquiring the Company. Such determinations shall be made by
the Accountants using reasonable good faith interpretations of the
Code. As expressly permitted by Treasury Regulations section
1.280G-1 Q/A-32, with respect to performing any present value
calculations that are required in connection with this Section
5(b), you and the Company each affirmatively elect to utilize the
Applicable Federal Rates ("AFR") that are in effect as of the
Effective Date and the Accountants shall therefore use such AFRs in
their determinations and calculations. If the Accountants determine
that no excise tax under Section 4999 of the Code is payable with
respect to a Total Payment, it shall furnish the Company and you
with an opinion reasonably acceptable to you that no such excise
tax under Section 4999 of the Code will be imposed with respect to
such Total Payments. The Company shall pay the fees and costs of
the Accountants which are incurred in connection with this Section
5(b).
5. Consequences
of Termination of Employment. For purposes of
this Agreement, your last day of employment with the Company is the
“Termination Date”. Upon termination of your employment
for any reason, you shall receive payment or benefits from the
Company covering the following: (i) all unpaid salary and
unpaid vacation accrued through the Termination Date, (ii) any
payments/benefits to which you are entitled under the express terms
of any applicable Company employee benefit plan, (iii) any
unreimbursed valid business expenses for which you have submitted
properly documented reimbursement requests and (iv) your then
outstanding Compensatory Equity as governed by their applicable
plan (collectively, (i) through (v) are the
“Accrued Pay”).
After
termination of your employment by the Company without cause or by
you for Good Reason, and whether or not the Mutual Release
described in Section 6(e) is executed by you, the Company shall pay
the entire premiums for your Company group medical, dental and
vision insurance coverage for you and your dependents for 6 months
after the Termination Date with coverage no less favorable than as
of immediately before your Termination Date (the “Continuing
Health Coverage”). If it becomes unreasonable for the Company
to continue to pay for this Continuing Health Coverage for you (or
imposes adverse tax consequences on you) because of changes in
applicable law then the Company shall make the premium payments to
you on an after-tax basis.
You
will also be paid all other post-employment payments and benefits
as provided in this Agreement including without limitation any
unpaid bonus amounts described in Section 3(b), which will be paid
over six (6) months. Within no later than 90 days after the later
of your Termination Date or the date that you are not considered to
be a ten percent (10%) shareholder under Section 16 of the Exchange
Act, you shall no longer be considered a Company affiliate and the
Company shall use commercially reasonable efforts to facilitate the
timely removal of any restrictive legends on any shares of Company
common stock then held by you.
(a) For
Cause. For purposes of this Agreement, your employment may
be terminated by the Company for “Cause” as a result of
the occurrence of one (1) or more of the following:
(i) Your
commission of fraud or other unlawful conduct in or that affects
your performance of duties for the Company;
(ii) Your
conviction of, or a plea of “guilty” or “no
contest" to, a felony under the laws of the United States or any
state thereof, if such felony either is work-related or materially
impairs your ability to perform services for the Company;
or
(iii) Your
willful material breach of this Agreement For purposes of the
foregoing, no act, or failure to act, on your part shall be
considered “willful” unless done, or omitted to be
done, by you other than in good faith, and without reasonable
belief that your action or omission was in furtherance of the
interests of the Company. The foregoing shall is an exclusive list
of the acts or omissions that shall be considered
“Cause” for the termination of your employment by the
Company. The Board shall provide you with 30 days advance written
notice specifically detailing the basis (and factual circumstances)
for the termination of your employment for Cause. During the 30 day
period after you have received such notice, you shall have an
opportunity to cure or remedy such alleged Cause events and to
present your case to the full Board (with the assistance of your
own counsel). A termination shall be deemed for Cause only if,
following such 30 day period, at least 75% of the group consisting
of the members of the Board vote affirmatively that your
termination is for Cause. You shall continue to receive all of the
compensation and benefits provided by this Agreement during the 30
day cure/remedy period.
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(b) Without
Cause or for Good Reason or Death or Disability. The Company
may terminate your employment without Cause or for Disability at
any time with 30 days advance written notice or you may resign your
employment for Good Reason (as defined below in
Section 6(b)(iii)) with 30 days advanced written notice or
your employment may also be terminated due to your death or by you
due to your Disability (each of the foregoing, a “Qualifying
Termination”). Any notice of termination by the Company that
is not covered by Section 6(a) must specify whether it was a
termination without Cause or due to your Disability. Without your
prior written consent, once the Company has provided you with such
a notice of termination under this Section 6(b) then it may not
rescind such notice nor may it modify the terms of your severance
benefits described in this Agreement. For purposes of this
Agreement, “Disability” is defined to occur when you
are unable to engage in any substantial gainful activity for 30 or
more consecutive days, or 60 or more days within a 120 day period
by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not
less than twelve (12) months. If your employment is terminated due
to a Qualifying Termination, then you will receive the following
benefits subject to your timely compliance with
Section 6(e) and further provided that no payments for
such Qualifying Termination shall be made until on or after the
date of a “separation from service” within the meaning
of Code Section 409A:
(i) The
Company shall provide you with a cash payment equal to six (6)
months of your then annual Base Salary and your annual target bonus
amount (the “Severance Payment”). The Severance Payment
shall be paid to you in six (6) equal installments after the
effective date of the Mutual Release described in Section
6(e).
(ii) The
Company shall provide the Continuing Health Coverage (or coverage
no less favorable to you than the Continuing Health Coverage) for 6
months after the Termination Date. If it becomes unreasonable for
the Company to continue to pay for this Continuing Health Coverage
for you (or it imposes adverse tax consequences on you) because of
changes in applicable law then the Company shall make the premium
payments to you on an after-tax basis. Additionally, all
outstanding unvested Compensatory Equity awards shall fully vest
and become exercisable (to the extent exercise is required) as of
your Termination Date.
(iii) For
purposes of this Agreement, you may resign your employment from the
Company for “Good Reason” within one (1) year after the
date that any one of the following events described in
subparts (1) through (5) (any one of which will constitute
“Good Reason”) has first occurred without your written
consent. Your resignation for Good Reason will only be effective if
the Company has not cured or remedied the Good Reason event within
30 days after its receipt of your written notice of the Good Reason
event. Such notice of your intention to resign for Good Reason must
be provided to the Company within 90 days of the initial existence
of a Good Reason event. This “Good Reason” definition
and process is intended to comply with the safe harbor provided
under Treasury Regulation Section 1.409A-1(n)(2)(ii) and shall be
interpreted accordingly.
(1)
You have incurred a
material diminution in your responsibilities, duties or authority
or you are no longer the CFO of the Company (or if the Company has
a parent entity, then you must be its CFO of the Company’s
ultimate parent entity);
(2)
Your workplace has
been relocated to a new location that is more than 100 miles away
from your work location that is specified in
Section 1;
(3)
Any material
reduction of your Base Salary.
(c) Voluntary
Termination. In the event you voluntarily terminate your
employment with the Company without Good Reason and not due to
Disability, you will not be entitled to the Severance Payment but
will receive your Accrued Pay plus the other post-termination
payments that are not predicated on a Qualifying Termination. You
agree to use your best efforts to provide the Company with at least
14 days advance written notice of your intention to resign without
Good Reason.
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(d) Change
of Control. If, within six (6) months following a Change in
Control, your employment is terminated pursuant to 6(b) or 6(c) (a
“Change in Control Termination”), then you will receive
the following benefits subject to your timely compliance with
Section 6(e) and further provided that no payments for
such Change in Control Termination shall be made until on or after
the date of a “separation from service” within the
meaning of Code Section 409A:
(i) The
Company shall provide you with a cash payment equal to six (6)
months of your then annual Base Salary and your annual target bonus
amount (the “Severance Payment”). The Severance Payment
shall be paid to you in six (6) equal installments after the
effective date of the Mutual Release described in Section
6(e).
(ii) The
Company shall provide the Continuing Health Coverage (or coverage
no less favorable to you than the Continuing Health Coverage) for 6
months after the Termination Date. If it becomes unreasonable for
the Company to continue to pay for this Continuing Health Coverage
for you (or it imposes adverse tax consequences on you) because of
changes in applicable law then the Company shall make the premium
payments to you on an after-tax basis. Additionally, all
outstanding unvested Compensatory Equity awards shall fully vest
and become exercisable (to the extent exercise is required) as of
your Termination Date.
(iii) All
of your unvested RSUs and options granted prior to, on, or after
the date hereof (but only (i) such RSUs and options as have been
granted to you by Company as of the date of the Change in control
or (ii) such RSUs and options as have been assumed by an acquiring
company at the time of a Change in Control or such new RSUs and
options that have been substituted by an acquiring company for RSUs
and options existing at the time of a Change in Control, each
pursuant to the terms of a company option plan) shall automatically
become fully vested as of the Termination Date. The parties hereto
acknowledge that the terms of this Agreement are intended to modify
the terms of Employee's existing RSU and option agreements and to
be a supplement to future RSU and options agreements.
(e) Mutual
Release of Claims. Subject to the next sentence, as a
condition to receiving (and continuing to receive) the payments and
benefits provided in Section 6(b), not later than forty-five
(45) days after your Termination Date, you execute (and not revoke)
and deliver to the Company a Mutual Release Of All Claims And
Covenant Not To Xxx agreement (the “Mutual Release”) in
the form attached as Exhibit B hereto. Payment of the forgoing may
be deferred or delayed until expiration of the revocation period.
However, this requirement for you to provide an executed Mutual
Release shall not be applicable if your employment was terminated
due to your death or Disability. The Company shall have the
obligation to prepare and execute said Mutual Release and tender
such Company-executed Mutual Release to you on or before your
Termination Date.
6. Proprietary
Information and Inventions Agreement;
Confidentiality. You will be
required, as a condition of your employment with the Company, to
execute the Company’s form of proprietary information and
inventions agreement (“Confidentiality
Agreement”).
7. Assignability;
Binding Nature. Commencing on the
Effective Date, this Agreement will be binding upon you and the
Company and the parties’ respective successors, heirs, and
assigns. This Agreement may not be assigned by you except that your
rights to compensation and benefits hereunder, subject to the
limitations of this Agreement, may be transferred by will or
operation of law. No rights or obligations of the Company under
this Agreement may be assigned or transferred except in the event
of a merger or consolidation in which the Company is not the
continuing entity, or the sale or liquidation of all or
substantially all of the assets of the Company provided that the
assignee or transferee is the successor to all or substantially all
of the assets of the Company and expressly in writing assumes the
Company’s obligations under this Agreement. The Company will
require any such purchaser, successor or assignee to expressly
assume and agree to perform this Agreement in the same manner and
to the same extent that the Company would be required to perform if
no such purchase, succession or assignment had taken place. Your
rights and obligations under this Agreement shall not be
transferable by you by assignment or otherwise provided, however,
that if you die, all amounts then payable to you hereunder shall be
paid in accordance with the terms of this Agreement to your
devisee, legatee or other designee or, if there be no such
designee, to your estate.
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8. Governing
Law; Arbitration. This Agreement
will be deemed a contract made under, and for all purposes shall be
construed in accordance with, the laws of California, without
regard to its conflicts of law provisions.
Except
as may be permitted below on this section 9, the parties agree that
any dispute between the parties arising out of or relating to the
negotiation, execution or performance of this Agreement shall be
settled by expedited binding arbitration in accordance with the
Employment Arbitration Rules and Mediation Procedures of the
American Arbitration Association. The location for the arbitration
shall be San Diego, California. The arbitration award shall be made
within sixty (60) days of the filing of the notice of intention to
arbitrate (demand), and the arbitrator(s) shall agree to comply
with this schedule before accepting appointment. Any award made by
such arbitrator(s) shall be final, binding and conclusive on the
parties for all purposes, and judgment upon the award rendered by
the arbitrators may be entered in any court having jurisdiction
thereof. The parties each agree that the arbitration provisions of
this Agreement shall provide each party with its exclusive remedy,
and each party expressly waives any right it might have to seek
redress in any other forum, except as otherwise expressly provided
in this Agreement. By electing arbitration as the means for final
settlement of all claims, the parties hereby waive their respective
rights to, and agree not to, xxx each other in any action in a
Federal, State or local court with respect to such claims, but may
seek to enforce in court an arbitration award rendered pursuant to
this Agreement. The parties specifically agree to waive their
respective rights to a trial by jury, and further agree that no
demand, request or motion will be made for trial by jury. In the
event that either party brings an action under Section 9 to enforce
or effect its rights under or relating to this Agreement (a
“Proceeding”), the prevailing party shall be entitled
to recover its costs and expenses, including the costs of
mediation, arbitration, litigation, court fees, and reasonable
attorneys’ fees incurred in connection with such an action.
The Company shall pay for all arbitration-specific costs, including
but not limited to the arbitration filing fee.
If you
are determined by the arbitrator to be the prevailing party in any
Proceeding where the Company was found to have materially breached
this Agreement, then, in addition to being awarded your costs and
expenses, you shall be entitled to: (i) interest on any late
payments, calculated at a rate equal to the statutory rate,
compounded daily, and (ii) the acceleration of payment for all
remaining payments owed to you, so that the unpaid balance
(including accrued interest) shall be paid in a single lump sum
within ten (10) business days of the issuance of the
arbitrator’s award. You may also be awarded any economic
damages arising from the Company’s breach, as may be
determined in the arbitrator in the Proceeding.
In
addition to the remedies set forth above, the parties hereby agree
that they shall be entitled to enforce their rights under this
Agreement specifically. All such rights and remedies shall be
cumulative and non-exclusive, and may be exercised singularly or
concurrently. The parties agree that irreparable harm would occur
in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise
breached. Each party agrees that, in the event of any breach or
threatened breach by any other party of any covenant or obligation
contained in this Agreement, the non-breaching party shall be
entitled to seek and obtain: (i) a decree or order of specific
performance to enforce the observance and performance of such
covenant or obligation, and (ii) an injunction restraining such
breach or threatened breach.
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9. Taxes.
All compensation paid by the Company hereunder to you or your
estate or beneficiaries will be subject to tax withholding pursuant
to any applicable laws or regulations. This Agreement and its
payments are intended to be exempt from or comply with the
requirements of Code Section 409A and the Company shall use its
best efforts to ensure that there are no violations of Code Section
409A. If any taxes under Code Section 409A are imposed on you, then
the Company shall within thirty days of the determination that
there would be an imposition of such taxes provide you with a
payment that will cover the costs of any Code Section 409A taxes,
excise taxes, penalties and interest along with any taxes imposed
on such payment so that you will on an after-tax basis (applying
the then highest aggregate marginal tax rates) be no worse off than
if no Code Section 409A taxes, excise taxes, penalties or interest
had been imposed. Notwithstanding any provision in the Agreement to
the contrary, if upon your “separation from service”
within the meaning of Code Section 409A, you are then a
“specified employee” (as defined in Code Section 409A),
then to the extent necessary to comply with Code Section 409A and
avoid the imposition of taxes under Code Section 409A, the Company
shall defer payment of “nonqualified deferred
compensation” subject to Code Section 409A payable as a
result of and within six (6) months following such
“separation from service” under this Agreement until
the earlier of (i) the first business day of the seventh month
following your “separation from service,” or (ii) ten
(10) days after the Company receives notification of your death.
Additionally, the reimbursement of expenses or in-kind benefits
provided pursuant to this Agreement shall be subject to the
following conditions: (1) the expenses eligible for reimbursement
or in-kind benefits in one taxable year shall not affect the
expenses eligible for reimbursement or in-kind benefits in any
other taxable year; (2) the reimbursement of eligible expenses or
in-kind benefits shall be made promptly, subject to the
Company’s applicable policies, but in no event later than the
end of the year after the year in which such expense was incurred;
and (3) the right to reimbursement or in-kind benefits shall not be
subject to liquidation or exchange for another benefit. The
provisions of this Section 10 shall survive any termination of this
Agreement or your employment.
10. Entire
Agreement. Except as
otherwise specifically provided in this Agreement, this Agreement
contains all the legally binding understandings and agreements
between you and the Company pertaining to the subject matter of
this Agreement and supersedes all such agreements, whether oral or
in writing, previously entered into between the parties. In the
event of any conflict in terms between this Agreement and any other
agreement executed by and between you and the Company or any
Company plan or policy, the terms of this Agreement shall prevail
and govern.
11. No
Offset or Mitigation. No severance or
other payments or benefits made to you under this Agreement may be
offset by the Company or by any other party. You shall have no duty
of mitigation with respect to any severance or other payments or
benefits made to you under this Agreement.
12. Notice.
Any notice that the Company is required to or may desire to give
you shall be given by personal delivery, recognized overnight
courier service, email, telecopy or registered or certified mail,
return receipt requested, addressed to you at your address of
record with the Company, or at such other place as you may from
time to time designate in writing. Any notice that you are required
or may desire to give to the Company hereunder shall be given by
personal delivery, recognized overnight courier service, email,
telecopy or by registered or certified mail, return receipt
requested, addressed to the Company’s General Counsel at its
principal office, or at such other office as the Company may from
time to time designate in writing. The date of actual delivery of
any notice under this Section 13 shall be deemed to be the
date of delivery thereof.
13. Waiver;
Severability. No provision of
this Agreement may be amended or waived unless such amendment or
waiver is agreed to by you and the Company in a writing that
specifically references this Section 14. No waiver by you or the
Company of the breach of any condition or provision of this
Agreement will be deemed a waiver of a similar or dissimilar
provision or condition at the same or any prior or subsequent time.
Except as expressly provided herein to the contrary, failure or
delay on the part of either party hereto to enforce any right,
power, or privilege hereunder will not be deemed to constitute a
waiver thereof. In the event any portion of this Agreement is
determined to be invalid or unenforceable for any reason, the
remaining portions shall be unaffected thereby and will remain in
full force and effect to the fullest extent permitted by
law.
14. Voluntary
Agreement, Nondisparagement. Each party
represents that it has the power and authority to enter into this
Agreement. Each party acknowledges that it has been advised to
review this Agreement with its own legal counsel and other advisors
of its choosing and that prior to entering into this Agreement,
each has had the opportunity to review this Agreement with its
attorney and other advisors and have not asked (or relied upon) the
other party or other party’s counsel to represent it in this
matter. Each party further represents that each has carefully read
and understands the scope and effect of the provisions of this
Agreement and that each is fully aware of the legal and binding
effect of this Agreement. This Agreement is executed voluntarily by
each party and without any duress or undue influence on the part or
behalf of the other party. The Company agrees that the Board and
its executive officers will not make (or direct the Company or any
of its affiliates, employees or agents to make) any written or oral
communications that could reasonably be considered to be
disparaging of you (or your family members) in any respect
including, but not limited to, your personal performance, abilities
or reputation.
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Please
acknowledge your acceptance and understanding of this Agreement by
signing and returning it to the undersigned. A copy of this signed
Agreement will be sent to you for your records.
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ACKNOWLEDGED AND AGREED:
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XXXX X. XXXXXXX
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/s/
XXXXXX
XXXXX
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/s/
XXXX
XXXXXXX
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BY:
Xxxxxx Xxxxx, Ph.D.
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TITLE:
President and CEO
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EXHIBIT A
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EXHIBIT B
MUTUAL RELEASE OF ALL CLAIMS AND COVENANT NOT TO XXX
PURSUANT
TO
AGREEMENT
1. PARTIES.
The parties to this Agreement and Release are Xxxx X. Xxxxxxx
(“Executive”) and Innovus Pharmaceuticals, Inc., a
Nevada corporation, (the “Company”).
2. RECITALS.
This Release is made with reference to the following
facts:
Executive
and Company are parties to an Employment Agreement dated April 27,
2018. That Employment Agreement provides that the Executive must
execute a mutual general release and covenant not to xxx not later
than forty-five (45) days after Executive’s Termination Date
(as defined in the Employment Agreement) in order for Executive to
receive the severance payment and benefits under the Employment
Agreement. This Release is the mutual general release and covenant
not to xxx required by the Employment Agreement.
3. EXECUTIVE’S
PROMISES. In consideration for the promises and payments
contained in the Employment Agreement, each party agrees as
follows:
3.1 Executive
hereby covenants not to xxx and also waives, releases and forever
discharges Company, its parent company, divisions, subsidiaries,
officers, directors, agents, employees, stockholders, affiliates
and successors from any and all claims, causes of action, damages
or costs of any type Executive may have against Company or its
current and former parent company, divisions, subsidiaries,
officers, directors, employees, agents, stockholders, successors or
affiliates (the “Released Parties”), and the Released
Parties similarly covenant not to xxx and also waive, release and
forever discharge Executive from any and all claims, causes of
action, damages or costs of any type that the Released Parties may
have against Executive, including without limitation those arising
out of or relating to Executive’s employment with Company, or
Executive’s separation of employment. This waiver and release
includes, but is not limited to, claims, causes of action, damages
or costs arising under or in relation to Company’s employee
handbook and personnel policies, or any oral or written
representations or statements made by officers, directors,
employees or agents of Company, or under any state or federal law
regulating wages, hours, compensation or employment, or any claim
for breach of contract or breach of the implied covenant of good
faith and fair dealing, or any claim for stock, stock options,
warrants, or phantom stock or equity of any kind or any claim for
wrongful termination, or any discrimination claim on the basis of
race, sex, sexual orientation, gender, age, religion, marital
status, national origin, physical or mental disability, medical
condition, or any claim arising under the federal Age
Discrimination in Employment Act, the Equal Pay Act, the California
Family Rights Act, the Pregnancy Discrimination Act, the Family
Medical Leave Act, the California Labor Code, the California Wage
Orders, Title VII of the Civil Rights Act, the Fair Employment and
Housing Act, the California Labor Code Private Attorneys General
Act of 2004, the California Wage Orders, and Business and
Professions Code Section 17200, et seq.
Notwithstanding the
foregoing, with respect to Executive’s release, this Release
does not release (a) claims that cannot be released as a matter of
law, (b) claims arising after the effective date of this
Release including those under the Employment Agreement, (c) claims
to enforce any of Executive’s rights to post-termination
benefits provided by the Employment Agreement, (d) claims for
indemnification or coverage under a directors and officers
liability insurance policy as provided in the Employment Agreement
or under any other contract or under applicable law, (e) claims to
enforce any of Executive’s vested benefits under any employee
benefit plan of the Company including without limitation his
Compensatory Equity (as defined in the Employment Agreement), (f)
Executive’s right to file a charge, testify, assist, or
cooperate with the EEOC or to file a claim under the Fair Labor
Standards Act, or (g) Executive’s rights arising solely as a
shareholder of the Company.
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3.2 The
waiver and release set forth in paragraph 3.1 applies to claims of
which either party does not currently have knowledge and each party
specifically waives the benefit of the provisions of Section 1542
of the Civil Code of the State of California which reads as
follows: “A general release does not extend to claims which
the creditor does not know or suspect to exist in his or her favor
at the time of executing the release, which if known by him or her
must have materially affected his or her settlement with the
debtor.”
4. CONSULTATION,
REVIEW, AND REVOCATION. In accordance with the Age
Discrimination in Employment Act of 1967 (“ADEA”) as
amended by the Older Workers Benefit Protection Act, Executive is
advised to consult with an attorney before signing this Release.
Executive is given a period of 45 days in which to consider whether
to enter into this Release. Executive does not have to utilize the
entire 45 day period before signing this Release, and may waive
this right. If Executive does enter into this Release, Executive
may revoke the Release within 7 days after the execution of the
Release. Any revocation must be in writing and must be received by
the Company no later than midnight of the seventh day after
execution by Executive. The Release is not effective or enforceable
until after this 7-day period has passed without
revocation.
5. MISCELLANEOUS.
5.1 This
Release shall be deemed to have been executed and delivered within
the State of California, and the rights and obligations of the
parties hereunder shall be construed and enforced in accordance
with, and governed by, the laws of the State of
California.
5.2 This
Release is the entire agreement between the parties with respect to
the subject matter hereof and supersedes all prior and
contemporaneous oral and written agreements and discussions. This
Release may be amended only by an agreement in a writing signed by
the parties.
5.3 This
Release is binding upon and shall inure to the benefit of the
parties hereof, their respective agents, employees,
representatives, officers, directors, divisions, subsidiaries,
affiliates, parent company, assigns, heirs, partners, successors in
interest and stockholders, including any successor company of the
Company.
5.4 Each
party agrees that it has read this Release and has had the
opportunity to ask questions, seek counsel and time to consider the
terms of the Release. Each party has entered into this Release
freely and voluntarily.
5.5 The
parties agree that any dispute or controversy arising from or
related to this Release shall be decided by final and binding
arbitration as provided in the Employment Agreement.
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XXXX X. XXXXXXX (“Executive”)
_______________________________
Date:___________________________
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INNOVUS PHARMACEUTICALS INC.
(“Company”)
By: ___________________________________
Its: President
& CEO
Date: ___________________________________
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