EMPLOYMENT AGREEMENT
| Exhibit 10.2 | Employment Agreement, dated February 1, 2011, by and between Streamline Health Solutions, Inc., a Delaware corporation and Xxxxxx X. Xxxxxx. |
This EMPLOYMENT AGREEMENT (“Agreement”) is entered into effective as of January 31, 2011 (the
“Effective Date”), by and among Streamline Health Solutions, Inc., a Delaware corporation (the
“Company”) and Xxxxxx X. Xxxxxx (“Executive”).
RECITALS:
The Company and Executive hereby agree that Executive shall serve as the President and Chief
Executive Officer (“CEO”) of the Company pursuant to the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, in consideration of the premises and the agreements contained herein, and for
other good and valuable consideration, the receipt and adequacy of which the parties hereby
acknowledge, the parties agree as follows:
1. EMPLOYMENT
The Company hereby agrees to employ Executive, and Executive, in consideration of such
employment and other consideration set forth herein, hereby accepts employment, upon the terms and
conditions set forth herein.
2. POSITION AND DUTIES
During the term of this Agreement, Executive shall be employed as the CEO of the Company and
may also serve as an officer or as a member of the board of the Company and/or of affiliates of the
Company for no additional compensation, as part of Executive’s services to the Company hereunder.
While employed hereunder, Executive shall do all things necessary, legal and incident to the above
position, and otherwise shall perform such CEO-level functions as the Board of Directors (the
“Board”) of the Company may establish from time to time. In addition, during the period of his
employment hereunder, Executive shall be appointed or nominated for election to the Board.
3. COMPENSATION
Subject to such modifications as may be contemplated by said exhibit and approved from time to
time by the Board, Executive shall receive the compensation and benefits listed on the attached
Exhibit A. Such compensation and benefits shall be paid and provided by the Company in accordance
with the Company’s regular payroll, compensation and benefits policies.
4. EXPENSES
The Company shall pay or reimburse Executive for all travel and out-of-pocket expenses
reasonably incurred or paid by Executive in connection with the performance of Executive’s duties
as an employee of the Company upon compliance with the Company’s procedures for expense
reimbursement, including the presentation of expense statements or receipts or such other
supporting documentation as the Company may reasonably require.
5. PRIOR EMPLOYMENT; BINDING AGREEMENT
Executive warrants and represents to the Company (i) that Executive will take no action in
violation of any employment agreement or arrangement with any prior employer, (ii) that Executive
has disclosed to the Company all such prior written agreements, (iii) that any employment agreement
or arrangement with any prior employer is null and void and of no effect, and (iv) that Executive
has the full right and authority to enter into this Agreement and to perform all of Executive’s
obligations hereunder. The Executive agrees to indemnify and hold the Company harmless from and
against any and all claims, liabilities or expenses incurred by the Company as a result of any
claim made by any prior employer arising out of this Agreement or the employment of Executive by
the Company. The Company warrants and represents to the Executive that the Company, acting by the
officer executing this Agreement on behalf of the Company, has the full right and authority to
enter into this Agreement and to perform all of the Company’s obligations hereunder.
6. OUTSIDE EMPLOYMENT
Executive shall devote Executive’s full time and attention to the performance of the duties
incident to Executive’s position with the Company, and shall not have any other employment with any
other enterprise or substantial responsibility for any enterprise which would be inconsistent with
Executive’s duty to devote Executive’s full time and attention to the Company matters; provided,
however, that, the foregoing shall not prevent Executive from participation in any charitable or
civic organization or from service in a non-executive capacity on the boards of directors of up to
two other companies that does not interfere with Executive’s performance of the duties and
responsibilities to be performed by Executive under this Agreement.
7. CONFIDENTIAL INFORMATION
Executive shall not, during the term of this Agreement or at any time thereafter, disclose, or
cause to be disclosed, in any way Confidential Information, or any part thereof, to any person,
firm, corporation, association, or any other operation or entity, or use the Confidential
Information on Executive’s own behalf, for any reason or purpose. Executive further agrees that,
during the term of this Agreement or at any time thereafter, Executive will not distribute, or
cause to be distributed, Confidential Information to any third person or permit the reproduction of
Confidential Information, except on behalf of the Company in Executive’s capacity as an employee of
the Company. Executive shall take all reasonable care to avoid unauthorized disclosure or use of
the Confidential Information. Executive hereby assumes responsibility for and shall indemnify and
hold the Company harmless from and against any disclosure or use of the Confidential Information in
violation of this Agreement.
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For the purpose of this Agreement, “Confidential Information” shall mean any written or
unwritten information which specifically relates to and or is used in the Company’s business
(including, without limitation, the Company’s services, processes, patents, systems,
equipment, creations, designs, formats, programming, discoveries, inventions, improvements,
computer programs, data kept on computer, engineering, research, development, applications,
financial information, information regarding services and products in development, market
information including test marketing or localized marketing, other information regarding processes
or plans in development, trade secrets, training manuals, know-how of the Company, and the
customers, clients, suppliers and others with whom the Company does or has in the past done,
business, regardless of when and by whom such information was developed or acquired) which the
Company deems confidential and proprietary which is generally not known to others outside the
Company and which gives or tends to give the Company a competitive advantage over persons who do
not possess such information or the secrecy of which is otherwise of value to the Company in the
conduct of its business — regardless of when and by whom such information was developed or
acquired, and regardless of whether any of these are described in writing, reduced to practice,
copyrightable or considered copyrightable, patentable or considered patentable. Provided, however,
that “Confidential Information” shall not include general industry information or information which
is publicly available or is otherwise in the public domain without breach of this Agreement,
information which Executive has lawfully acquired from a source other than the Company, or
information which is required to be disclosed pursuant to any law, regulation, or rule of any
governmental body or authority or court order. Executive acknowledges that Confidential Information
is novel, proprietary to and of considerable value to the Company.
Executive agrees that all restrictions contained in this Section 7 are reasonable and valid
under the circumstances and hereby waives all defenses to the strict enforcement thereof by the
Company.
Executive agrees that, upon the request of the Company, or immediately on termination of his
employment for whatever reason, Executive will immediately deliver up to the requesting entity all
Confidential Information in Executive’s possession and/or control, and all notes, records,
memoranda, correspondence, files and other papers, and all copies, relating to or containing
Confidential Information. Executive does not have, nor can Executive acquire, any property or other
right in Confidential Information.
8. PROPERTY OF THE COMPANY
All ideas, inventions, discoveries, proprietary information, know-how, processes and other
developments and, more specifically improvements to existing inventions, conceived by Executive,
alone or with others, during the term of Executive’s employment, whether or not during working
hours and whether or not while working on a specific project, that are within the scope of the
Company’s business operations or that relate to any work or projects of the Company, are and shall
remain the exclusive property of the Company. Inventions, improvements and discoveries relating to
the business of the Company conceived or made by Executive, either alone or with others, while
employed with the Company are conclusively and irrefutably presumed to have been made during the
period of employment and are the sole property of the Company. The Executive shall promptly
disclose in writing any such matters to the Company but to no other person without the consent of
the Company. Executive hereby assigns and agrees to assign all right, title, and interest in and to
such matters to the Company. Executive will, upon request of the Company, execute such assignments
or other instruments and assist the Company in the obtaining, at the Company’s sole expense, of
any patents, trademarks or similar protection, if available, in the name of the Company.
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9. NON-COMPETITION AGREEMENT
(a) During the term of Executive’s employment, whether under this Agreement or at will, and
for a period of two years after the termination date of Executive’s employment (whether such
termination be with or without cause), Executive agrees, provided he has received all the
compensation specified in Sections 11 and 13 hereof to be received by him coincident with such
termination, that he will not directly or indirectly, whether as an employee, agent, consultant,
director, officer, investor, partner, shareholder, proprietor, lender or otherwise own, operate or
otherwise work for or participate in any competitive business (including the pertinent division or
subsidiary of any multi-sector business), anywhere in the world, which designs, develops,
manufactures or markets any product or service that in any way competes with the Company’s
business, products or services as conducted, or planned to be conducted, on the date of termination
(a “Competitive Business”), provided that the foregoing shall not prohibit Executive from owning
not more than 5% of the outstanding stock of a corporation subject to the reporting requirements of
the Securities Exchange Act of 1934.
(b) During the term of Executive’s employment and for a period ending two years from the
termination of Executive’s employment with the Company, whether by reason of the expiration of the
term of this Agreement, resignation, discharge by the Company or otherwise, Executive hereby agrees
that Executive will not, directly or indirectly:
(i) solicit, otherwise attempt to employ or contract with any current or future employee of
the Company for employment or otherwise in any Competitive Business or otherwise offer any
inducement to any current or future employee of the Company to leave the Company’s employ; or
(ii) contact or solicit any customer or client of the Company (an “Existing Customer”),
contact or solicit any individual or business entity with whom the Company has directly
communicated for the purpose of rendering services prior to the effective date of such termination
(a “Potential Customer”), or otherwise provide any other products or services for any Existing
Customer or Potential Customer of the Company, on behalf of a Competitive Business or in a manner
that is competitive to the Company’s business; or
(iii) Use or divulge to anyone any information about the identity of the Company’s customers
or suppliers (including without limitation, mental or written customer lists and customer prospect
lists), or information about customer requirements, transactions, work orders, pricing policies,
plans, or any other Confidential Information.
(c) For the purpose of this Agreement, Competitive Business shall mean any business operation
(including a sole proprietorship) anywhere in the world which designs, develops, manufactures or
markets any product or service that in any way competes with the Company’s healthcare document
management software and document workflow software business, products or services as conducted, or
contemplated to be conducted, on the date of termination.
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10. TERM
Unless earlier terminated pursuant to Section 11 hereof, the term of this Agreement (the
“Term”) shall be for the time period beginning on the Effective Date, and continuing through
January 31, 2013 (the “Expiration Date”), unless, during the Term of this Agreement, or any renewal
thereof, there is a change in control as defined in Section 13 hereof, at which time the then
current Expiration Date will be extended to be one year from the date of the change in control. On
the Expiration Date, and on each annual Expiration Date thereafter (each such date being
hereinafter referred to as the “Renewal Date”), absent notice to the contrary from either party
hereto to the other received at least 60 days prior to commencement of the Renewal Term, the term
of employment hereunder shall automatically renew for an additional one (1) year period. Unless
waived in writing by the Company, the requirements of Sections 7 (Confidential Agreement), 8
(Property of the Company) and 9 (Non-Competition Agreement) shall survive the expiration or
termination of this Agreement for any reason.
11. TERMINATION
(a) Death. This Agreement and Executive’s employment hereunder shall be terminated on the
death of Executive, effective as of the date of Executive’s death.
(b) Continued Disability. This Agreement and Executive’s employment hereunder may be
terminated, at the option of the Company, upon a Continued Disability of Executive, effective as of
the date of the determination of Continued Disability as that term is hereinafter defined. For the
purposes of this Agreement, “Continued Disability” shall be defined as the inability or incapacity
(either mental or physical) of Executive to continue to perform Executive’s duties hereunder for a
continuous period of one hundred twenty (120) working days, or if, during any calendar year of the
Term hereof because of disability, Executive shall have been unable to perform Executive’s duties
hereunder for a total period of one hundred eighty (180) working days regardless of whether or not
such days are consecutive. The determination as to whether Executive is unable to perform the
essential functions of Executive’s job shall be made by the Board in its reasonable discretion;
provided, however, that if Executive is not satisfied with the decision of the Board, Executive
will submit to examination by three competent physicians who practice in the metropolitan area in
which the Company then resides, one of whom shall be selected by the Company, another of whom shall
be selected by Executive, with the third to be selected by the physicians so selected. The
determination of a majority of the physicians so selected shall supersede the determination of the
Board and shall be final and conclusive.
(c) Termination For Good Cause. Notwithstanding any other provision of this Agreement, the
Company may at any time immediately terminate this Agreement and Executive’s employment thereunder
for Good Cause. For this purpose, “Good Cause” shall include the following: the current use of
illegal drugs; conviction of any crime which involves moral turpitude, fraud or misrepresentation;
commission of any act which would constitute a felony and which adversely impacts the business or
reputation of the Company; fraud; misappropriation or embezzlement of Company funds or property;
willful misconduct or grossly negligent or reckless conduct which is materially injurious to the
reputation, business or business relationships of the Company; material violation or default on any
of the provisions of this Agreement; or material and continuous failure to meet reasonable
performance criteria or reasonable standards of conduct as established from time to time by the
Board, which failure continues for at least 30 days after written notice from the Company to
Executive. Any alleged cause for termination shall be delivered in writing to Executive stating the
full basis for such cause along with any notice of such termination.
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(d) Termination Without Good Cause. The Company may terminate Executive’s employment or
elect not to renew this Agreement prior to the Expiration Date at any time, whether or not for Good
Cause (as “Good Cause” is defined in Section 11(c) above). In the event the Company terminates
Executive or elects not to renew this Agreement for reasons other than Good Cause, Executive’s
Death, or Executive’s Disability, the Company will pay Executive a lump sum amount equal to
Executive’s annual base salary as in effect as of the date of such separation from employment, plus
an amount equal to the higher of the bonuses paid to Executive during that prior fiscal year or
earned in the then current fiscal year to date (provided that if Executive is terminated without
Good Cause during the first twelve months of employment with the Company, the bonus component of
the separation payment will be equal to the Target Bonus specified in Exhibit A for the period),
which shall be paid as soon as practicable following Executive’s execution (and non-revocation) of
a form of general release of claims as is acceptable to the Board. In any event, the Company shall
provide such release to Executive in a timely manner so that after the longest available review and
revocation period, the lump sum severance shall be paid no later than the 90th day
following Executive’s separation from service or March 15th of the calendar year
following the calendar year in which such separation from service occurs, whichever is sooner.
Executive shall also be entitled to the continuation of the then current Company benefits to the
extent continuation of such benefits is provided for under the applicable plans.
12. ADVICE TO PROSPECTIVE EMPLOYERS
If Executive seeks or is offered employment by any other company, firm or person, he will
notify the prospective employer of the existence and terms of the non-competition and
confidentiality agreements set forth in Sections 7 and 9 of this Agreement. Executive may disclose
the language of Sections 7 and 9, but may not disclose the remainder of this Agreement.
13. CHANGE IN CONTROL; ACCELERATED VESTING SCHEDULES
(a) In the event that, within twelve months of a change in control of the Company, Executive’s
employment by the Company is terminated prior to the end of the then current Term or Executive
terminates his employment due to a material reduction in his duties or compensation (“Good
Reason”), all stock options and restricted stock granted to Executive shall immediately vest in
full, and the Company will pay Executive a lump sum amount in accordance with Section 11(d), above;
provided, however, that in the event this Section 13 is applicable, the amount of such lump sum
shall be equal to 200% of the amount as determined under Section 11(d), alone. In the event
Executive seeks to terminate his employment for Good Reason, such termination shall not be treated
for purposes of this Section 13 as a resignation for Good Reason unless Executive provides the
Company with notice of the existence of the condition claimed to constitute Good Reason within 90
days of the initial existence of such condition and the Company fails to remedy such condition
within 30 days following the Company’s receipt of such notice.
(b) For purposes of this Agreement, “change in control” means any of the following events:
(i) A change in control of the direction and administration of the Company’s business of a
nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation
14A promulgated under the Securities Exchange Act of 1934, as
amended (the “1934 Act”), as in effect on the date hereof and any successor provision of the
regulations under the 1934 Act, whether or not the Company is then subject to such reporting
requirements; or
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(ii) Any “person” (as such term is used in section 13(d) and section 14(d)(2) of the 1934 Act
but excluding any employee benefit plan of the Company) is or becomes the “beneficial owner” (as
defined in Rule 13d-3 under the 1934 Act), directly or indirectly, of securities of the Company
representing more than one half of the combined voting power of the Company’s outstanding
securities then entitled to vote for the election of directors; or
(iii) The Company shall sell all or substantially all of the assets of the Company; or
(iv) The Company shall participate in a merger, reorganization, consolidation or similar
business combination that constitutes a change in control as defined in the Company’s 2005
Incentive Compensation Plan and/or results in the occurrence of any event described in Sections
13(b) (i), (ii) or (iii) above.
(c) Notwithstanding anything to the contrary contained in this Agreement, in the event any
amounts payable hereunder would be considered to be excess parachute payments for purposes of the
amount payable following the occurrence of a Change of Control that is treated as a “change in the
ownership or effective control” of the Company or “in the ownership of a substantial portion of the
assets” of the Company for purposes of Sections 280G and 4999 of the Internal Revenue Code of 1986,
as amended (the “Code”), those payments that are treated for purposes of Code Section 280G as being
contingent on a “change in the ownership or effective control” (as that phrase is used for purposes
of Code Section 280G) of the Company shall be reduced, if and to the extent necessary, so that no
payments under this Agreement are treated as excess parachute payments.
14. ACKNOWLEDGEMENTS
The Company and Executive each hereby acknowledge and agree as follows:
(a) The covenants, restrictions, agreements and obligations set forth herein are founded upon
valuable consideration, and, with respect to the covenants, restrictions, agreements and
obligations set forth in Sections 7, 8 and 9 hereof, are reasonable in duration and geographic
scope;
(b) In the event of a breach or threatened breach by Executive of any of the covenants,
restrictions, agreements and obligations set forth in Section 7, 8 and/or 9, monetary damages or
the other remedies at law that may be available to the Company for such breach or threatened breach
will be inadequate and, without prejudice to the Company’s right to pursue any other remedies at
law or in equity available to it for such breach or threatened breach, including, without
limitation, the recovery of damages from Executive, the Company will be entitled to injunctive
relief from a court of competent jurisdiction; and
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(c) The time period and geographical area set forth in Section 9 hereof are each divisible and
separable, and, in the event that the covenants not to compete contained therein are judicially
held invalid or unenforceable as to such time period and/or geographical area, they will be
valid and enforceable in such geographical area(s) and for such time period(s) which the court
determines to be reasonable and enforceable. Executive agrees that in the event any court of
competent jurisdiction determines that the above covenants are invalid or unenforceable to join
with the Company in requesting that court to construe the applicable provision by limiting or
reducing it so as to be enforceable to the extent compatible with the then applicable law.
Furthermore, any period of restriction or covenant herein stated shall not include any period of
violation or period of time required for litigation to enforce such restriction or covenant.
15. NOTICES
Any notice or communication required or permitted hereunder shall be given in writing and
shall be sufficiently given if delivered personally or sent by telecopy to such party addressed as
follows:
(a) In the case of the Company, if addressed to it as follows:
Streamline Health Solutions, Inc.
00000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxx 00000-0000
Attn: Chief Financial Officer
00000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxx 00000-0000
Attn: Chief Financial Officer
(b) In the case of Executive, if addressed to Executive at the most recent address on file
with the Company.
Any such notice delivered personally or by telecopy shall be deemed to have been received on
the date of such delivery. Any address for the giving of notice hereunder may be changed by notice
in writing.
16. ASSIGNMENT, SUCCESSORS AND ASSIGNS
This Agreement shall inure to the benefit of and be binding upon the parties hereto and their
respective legal representatives, successors and assigns. The Company may assign or otherwise
transfer its rights under this Agreement to any successor or affiliated business or corporation
(whether by sale of stock, merger, consolidation, sale of assets or otherwise), but this Agreement
may not be assigned, nor may the duties hereunder be delegated by Executive. In the event that the
Company assigns or otherwise transfers its rights under this Agreement to any successor or
affiliated business or corporation (whether by sale of stock, merger, consolidation, sale of assets
or otherwise), for all purposes of this Agreement, the “Company” shall then be deemed to include
the successor or affiliated business or corporation to which the Company, assigned or otherwise
transferred its rights hereunder.
17. MODIFICATION
This Agreement may not be released, discharged, abandoned, changed, or modified in any manner,
except by an instrument in writing signed by each of the parties hereto.
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18. SEVERABILITY
The invalidity or unenforceability of any particular provision of this Agreement shall not
affect any other provisions hereof and the parties shall use their best efforts to substitute a
valid, legal and enforceable provision, which, insofar as practical, implements the purpose of this
Agreement. Any failure to enforce any provision of this Agreement shall not constitute a waiver
thereof or of any other provision hereof.
19. COUNTERPARTS
This Agreement may be signed in counterparts (and delivered via facsimile transmission), and
each of such counterparts shall constitute an original document and such counterparts, taken
together, shall constitute one in the same instrument.
20. ENTIRE AGREEMENT
This constitutes the entire agreement among the parties with respect to the subject matter of
this Agreement and supersedes all prior and contemporaneous agreements, understandings, and
negotiations, whether written or oral, with respect to such subject matter.
21. DISPUTE RESOLUTION
Except as set forth in Section 14 above, any and all disputes arising out of or in connection
with the execution, interpretation, performance, or non-performance of this Agreement or any
agreement or other instrument between, involving or affecting the parties (including the validity,
scope and enforceability of this arbitration clause), shall be submitted to and resolved by
arbitration. The arbitration shall be conducted pursuant to the terms of the Federal Arbitration
Act and the Employment Arbitration Rules and Mediation Procedures of the American Arbitration
Association. Either party may notify the other party at any time of the existence of an arbitrable
controversy by certified mail and the parties shall attempt in good faith to resolve their
differences within fifteen (15) days after the receipt of such notice. If the dispute cannot be
resolved within the fifteen-day period, either party may file a written demand for arbitration with
the American Arbitration Association. The place of arbitration shall be Cincinnati, Ohio.
22. GOVERNING LAW
The provisions of this Agreement shall be governed by and interpreted in accordance with the
laws of the State of Ohio and the laws of the United States applicable therein. The Executive
acknowledges and agrees that Executive is subject to personal jurisdiction in state and federal
courts in Xxxxxxxx County, Ohio.
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IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto effective as of the
date first above written.
| STREAMLINE HEALTH SOLUTIONS, INC. |
||||
| By: | /s/ Xxxxxxxx X. Xxxxxxxx | |||
| Xxxxxxxx X. Xxxxxxxx | ||||
| Chairman | ||||
| EXECUTIVE |
||||
| /s/ Xxxxxx X. Xxxxxx | ||||
| Xxxxxx X. Xxxxxx | ||||
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EXHIBIT A — COMPENSATION AND BENEFITS
| 1. | Start Date. Executive’s start date shall be February 1, 2011. | |
| 2. | Base Salary. Base Salary shall be paid at an annualized rate of $250,000, which shall be subject to periodic review and adjustment by Compensation Committee (the “Committee”) of the Board and/or the Board but shall not be reduced below $250,000. | |
| 2. | Bonus. Target bonus and target goals shall be set by the Committee annually. Initial target bonus (for FY commencing 2/1/11) will be $150,000. Bonus will be paid pursuant to such terms and conditions as are established by the Committee and, to the extent payable under a bonus plan, subject to such terms and conditions as may be set out in such plan. The annual bonus shall, if payable, be paid no later than during the second quarter of the fiscal year following the fiscal year for which such bonus is paid, unless otherwise provided in the applicable bonus plan or written action taken by the Committee. | |
| 3. | Sign-on Bonus. Executive shall receive a Sign-on Bonus of $65,000 less applicable withholdings. | |
| 4. | Benefits. Executive shall participate in the Company’s benefit plans on the same terms and conditions as provided for other Company executives, and subject to all terms and conditions of such plans. | |
| 5. | Relocation. In the event that Executive relocates to Cincinnati at the request of the Company, the Company would provide Executive with a relocation package commensurate with the Company’s policy regarding relocation of employees. Notwithstanding the foregoing, Executive shall be under no obligation to relocate during the initial two-year term of this Agreement. | |
| 6. | Stock Grant. As of the Effective Date, Executive shall be issued 50,000 newly issued shares of common stock of the Company for $500 in cash (i.e., par value) as an inducement to Executive to enter into this Agreement. Such shares shall be “restricted” securities within the meaning of Rule 144 promulgated under the Securities Act of 1933 and shall not otherwise be restricted. | |
| 7. | Stock Option Grants. Two grants of incentive stock options, the first for 250,000 shares of common stock and the second for 150,000 shares of common stock, shall be made on the Effective Date, with the first of such grants having an option exercise price equal to the greater of $2.00 per share or the fair market value of a share, determined as of the date of grant, and subject to vesting in thirty six substantially equal monthly installments during the first three years of employment, and with the second of such grants having an option exercise price equal to the greater of $3.00 per share or the fair market value of a share, determined as of the date of grant, and subject to vesting in five equal annual installments on the first, second, third, fourth and fifth anniversary of the date of grant. The stock options will be granted under an inducement grant with terms as nearly as practicable identical to the terms and conditions of the Company’s 2005 Incentive Compensation Plan. |
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