BONUS AGREEMENT
Exhibit 10.22
BONUS AGREEMENT (this “Agreement”), dated as of March 16,
2006 (the “Effective Date”), between NANOSPHERE, INC., a Delaware corporation having an office
at 0000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 (the “Company”), and XXXXXXX X. XXXXXXX, an
individual residing at 000 Xxxx Xxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000 (“Employee”).
PREAMBLE
WHEREAS, the Company has instituted a Company-wide performance bonus program; and
WHEREAS, the Board of Directors of the Company has determined that it is in the best interests
of the Company and its stockholders to incentivize Xx. Xxxxxxx to remain on as the Company’s
President and Chief Executive Officer and to enter into this Agreement as part of the Company-wide
bonus program.
AGREEMENTS
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and for other good
and valuable consideration, the sufficiency and receipt whereof is hereby acknowledged, the parties
agree as follows:
1. Definitions. Unless otherwise defined herein, the following terms shall have the
following respective meanings:
“Bankruptcy Event” means: (i) the commencement of a case or proceeding against the Company
seeking a decree or order in respect of the Company (A) under the provisions of Title 11 of the
United States Code, 11 U.S.C. §§101 et seq., or any other applicable federal, state
or foreign bankruptcy or other similar law now or hereafter in effect (collectively, “Bankruptcy
Laws”), (B) appointing a custodian, receiver, liquidator, assignee, trustee or sequestrator (or
similar official) for the Company or for any substantial part of the Company’s assets, or (C)
ordering the winding up or liquidation of the affairs of the Company, and such case or
proceeding shall remain undismissed or unstayed for sixty (60) days or more or a decree or order
granting the relief sought in such case or proceeding shall be entered by a court of competent
jurisdiction; (ii) the Company’s filing of a petition seeking relief under Bankruptcy Laws; (iii)
the Company’s consent to (or failure to contest in a timely and appropriate manner) the institution
of proceedings thereunder or the filing of any such petition or the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar
official) for the Company or for any substantial part of the Company’s assets; or (iv) the
Company’s making an assignment for the benefit of creditors.
“Cause” means (i) any felony conviction or admission of guilt, (ii) any breach or
nonobservance by Employee of any material covenant set forth herein or in the Employment Agreement,
provided that the Board of Directors of the Company has given Employee written notice of such
breach or nonobservance and Employee has failed to cure such breach or
nonobservance within a period reasonable under the circumstances, (iii) any willful,
intentional or deliberate disobedience or neglect by Employee of the lawful and reasonable orders
or directions of the Board of Directors of the Company, provided that the Board of Directors of the
Company has given Employee written notice of such disobedience or neglect and Employee has failed
to cure such disobedience or neglect within a period reasonable under the circumstances, or
(iv) any willful or deliberate misconduct by employee that is materially injurious to the
Company.
“Change in Control” means (i) the purchase or other acquisition by any person, entity or group
of persons, within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934 or
any comparable successor provisions (other than stockholders (or affiliates thereof) of the Company
as of the date of this Employment Agreement), of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of 50% or more of either the outstanding shares of Common
Stock (on a fully diluted basis) or the combined voting power of the Company’s then-outstanding
voting securities entitled to vote generally in the election of directors of the Company; (ii) the
consummation of a reorganization, merger or consolidation of the Company, in each case, with
respect to which persons who were stockholders of the Company immediately prior to such
reorganization, merger or consolidation do not, immediately thereafter, own more than 50% of the
combined voting power entitled to vote generally in the election of directors of the reorganized,
merged or consolidated company; (iii) a liquidation or dissolution of the Company; or (iv) the sale
of all or substantially all of the Company’s assets.
“Diminution in Responsibility” means any of (i) a material diminution in Employee’s duties or
responsibilities or the assignment to Employee of duties that are materially inconsistent with his
duties as President and Chief Executive Officer of the Company or that materially impair Employee’s
ability to function in his position; (ii) the Company’s failure, during the term of Employee’s
employment under the Employment Agreement, to cause the election of Employee to the Board of
Directors of the Company; (iii) a relocation of the Company’s principal offices, without Employee’s
acquiescence or consent, to a location that is more than a fifty (50) mile radius from its current
location; (iv) any material reduction in the compensation and benefit opportunities (other than
those in Sections 3.2(b) and (c) of the Employment Agreement that have a stated term) of the
Employee (measured in the aggregate); or (v) any breach by the Company of any material provision of
this Agreement or the Employment Agreement, provided that Employee has given the Company
written notice of such breach and the Company has failed to cure such breach within a period that
is reasonable under the circumstances.
“Employment Agreement” means that certain Employment Agreement between the Company and
Employee dated as of July 19, 2004, as subsequently amended.
“Good Reason” means a Diminution in Responsibility.
“Permanent Disability” means Employee’s inability to substantially perform his duties and
responsibilities hereunder by reason of any physical or mental incapacity for a period of 180
consecutive days, or two or more periods of 90 consecutive days each in any 360-day period.
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2. Bonus.
2.1 Cash Bonus. Subject to the terms and conditions of this Agreement, the Company
hereby agrees to pay Employee a cash bonus in the amount of Two Million Three Hundred Thousand
Dollars ($2,300,000) (the “Bonus”) on the fifth (5th) anniversary of the Effective Date (the “Bonus
Payment Date”), provided that Employee is still employed by the Company on such date.
2.2 Acceleration of Bonus Upon Certain Events. Notwithstanding Section 2.1 hereof,
the Company’s obligation to pay the Bonus will be accelerated and the bonus shall become
immediately payable: (i) immediately prior to the completion of the Company’s first underwritten
public offering of its securities registered under the Securities Act of 1933, as amended; (ii)
immediately prior to the consummation of a Change in Control, provided, in either instance,
that Employee is still employed by the Company at such time; and (iii) upon the occurrence of a
Bankruptcy Event.
2.3 Termination of Employment. If, prior to the Bonus Payment Date, (i) Employee
terminates his employment under the Employment Agreement for Good Reason within one (1) year of the
event constituting Good Reason, (ii) the Company terminates Employee’s employment under the
Employment Agreement without Cause or upon Employee’s Permanent Disability, (iii) the Company
provides Employee with notice under Section 5 of the Employment Agreement that it will not renew
the Employment Agreement or (iv) Employee dies (each of the foregoing clauses (i) through (iv) is
referred to as a “Trigger Event”), then the Company shall pay to Employee (or to Employee’s estate,
if Employee is deceased) the Bonus within five (5) days of the occurrence of such Trigger Event.
2.4 Release for Post-Termination Benefits. In order to be eligible to receive any
benefits provided for in this Agreement that become due on or following termination of employment,
Employee (or Employee’s estate, if Employee is deceased) shall be required to execute and deliver
to the Company a full release of any claims or causes of action that the Employee (or Employee’s
estate, if Employee is deceased) might otherwise have or claim to have or assert against the
Company, other than a claim for any of the post-termination benefits provided for hereunder, in
such form as the Company may reasonably require.
2.5 Tax Gross-Up. If: (i) the Bonus becomes payable as a result of Employee’s death;
(ii) the Bonus becomes includable in Employee’s estate (the “Estate”) for purposes of U.S. federal
estate taxes; and (iii) Employee is not survived by his spouse, then the Company shall reimburse
the Estate for any U.S. federal, state or local taxes payable in respect of the Bonus, plus any
such taxes payable on such reimbursements, such that the net (after-tax) result to the Estate,
solely in respect of the Bonus, shall be equivalent to what the net (after-tax) result, solely in
respect of the Bonus, would have been to Employee had Employee been alive at the time of payment of
the Bonus. The Company shall make the payments, or portions thereof, provided for in this Section
2.5 not later than fifteen (15) days prior to the date on which such taxes, or portions thereof,
are due as determined by the tax counsel referred to below. Tax counsel selected by the Company
shall determine the amounts (if any) due the Estate under this Section 2.5. The Estate shall
provide such counsel with such information as such counsel reasonably requests in connection with
such determination. All determinations of tax counsel
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shall be binding on the Estate and the Company. Tax counsel shall determine that payments
shall be due hereunder only if, and to the extent that, it is more likely than not that such
payments are required to achieve the result intended by this Section 2.5. In making the
determinations required by this Section 2.5, tax counsel may rely on benefit consultants,
accountants or other experts. The Company agrees to pay all reasonable fees and expenses of such
tax counsel, benefit consultants, accountants or other experts. If, subsequent to the payment to
the Estate of any payment pursuant to this Section 2.5, the tax counsel referred to in this Section
2.5 reasonably determines that the amount of the payments made pursuant to this Section 2.5 are
greater than, or less than, the amount required to have been paid hereunder, the Estate shall
reimburse the Company an amount, or the Company shall pay to the Estate an additional amount,
respectively, based upon such determination.
3. General.
3.1 Governing Law. This Agreement shall be construed, interpreted and governed by the
laws of the State of Illinois, without regard to the conflicts of law rules thereof.
3.2 Binding Effect. This Agreement shall extend to and be binding upon Employee, his
legal representatives, heirs and distributees and upon the Company, its successors and assigns
regardless of any change in the business structure of the Company.
3.3 Assignment. Neither this Agreement nor any of the rights or obligations hereunder
shall be assigned or delegated by any party without the prior written consent of the other party.
3.4 Entire Agreement. Except for any stock option or stock award agreement between
the parties, this Agreement contains the entire agreement of the parties with respect to the
subject matter hereof. No waiver, modification or change of any provision of this Agreement shall
be valid unless in writing and signed by both parties.
3.5 Waiver. The waiver of any breach of any duty, term or condition of this Agreement
shall not be deemed to constitute a waiver of any preceding or succeeding breach of the same or any
other duty, term or condition of this Agreement.
3.6 Severability. If any provision of this Agreement shall be unenforceable in any
jurisdiction in accordance with its terms, the provision shall be enforceable to the fullest extent
permitted in that jurisdiction and shall continue to be enforceable in accordance with its terms in
any other jurisdiction and the validity, legality and enforceability of the remaining provisions
contained herein shall not be affected thereby.
3.7 Resolution of Disputes. Any disputes arising under or in connection with this
Agreement between Employee and the Company (or any officer, director, employee or agent of the
Company) shall, at the election of Employee or the Company, be resolved by confidential binding
arbitration, to be held in Chicago, Illinois (or in such other location as the Company may at the
time be headquartered) in accordance with the rules and procedures of the Model Employment Rules of
the American Arbitration Association. Judgment upon the award rendered by the arbitrator(s) may be
entered in any court having jurisdiction thereof.
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3.8 Notices. All notices pursuant to this Agreement shall be in writing and shall be
sent by prepaid certified mail, return receipt requested or by recognized air courier service
addressed as follows:
| (i) | If to the Company to: | ||
| Xxxx Xxxxxx Chairman of the Board Nanosphere, Inc. c/o Lurie Investments, Inc. Xxx Xxxxx Xxxxxxxxx Xxxxx Xxxxxxx, XX 00000 |
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| copy to: | |||
| Paul, Hastings, Xxxxxxxx & Xxxxxx LLP 0000 Xxxxxxxxxx Xxxxxxxxx Xxxxxxxx, XX 00000 Attention: Xxxxxxx X. Xxxxxx, Esq. |
|||
| (ii) | If to Employee to: | ||
| Xx. Xxxxxxx X. Xxxxxxx 000 Xxxx Xxxx Xxxx Xxxxxxxx, XX 00000 |
or to such other addresses as may hereafter be specified by notice in writing by either of the
parties, and shall be deemed given three business days after the date so mailed or sent.
Notwithstanding any other provision of this Agreement, neither party shall have the benefit of, or
be entitled to, any notice or cure period for any breach of a material provision hereof that is not
reasonably susceptible of cure.
3.9 Understanding. Executive has had the opportunity to seek legal counsel concerning
this Agreement, and has read and understands the provisions hereof.
3.10 Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original but all of which shall together constitute one and the same agreement.
[Signature page follows.]
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
| XXXXXXX X. XXXXXXX |
||||
| /s/ Xxxxxxx X. Xxxxxxx | ||||
| NANOSPHERE, INC. |
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| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xx. Xxxx Xxxxxx | |||
| Title: | Chairman of the Board of Directors | |||
FIRST AMENDMENT TO BONUS AGREEMENT
FIRST AMENDMENT TO BONUS AGREEMENT (this “Amendment”), dated as of August 7, 2007, by and between
Nanosphere, Inc., a Delaware corporation (the “Company”), and Xx. Xxxxxxx X. Xxxxxxx, an individual
resident in the State of Illinois (“Employee”).
RECITALS
A. The Company and Employee entered into a Bonus Agreement (the “Agreement”), dated as of
March 16, 2006, whereby the Company established incentives for the Employee, in his capacity as the
Company’s President and Chief Executive Officer, as part of the Company-wide bonus program.
B. The Agreement provides for the acceleration of the Company’s obligation to pay the Bonus
(as that term is defined in the Agreement) immediately prior to completion of the Company’s first
underwritten public offering (the “Acceleration Event”).
C. Pursuant to a loan and security agreement made by and between the Company and Employee on
March 16, 2006, the Company made a loan to Employee, which loan also matures upon the Acceleration
Event.
D. In order to comply with applicable laws, no loan to an executive officer or director of a
company may be outstanding at the time the company files its first Registration Statement on Form
S-1 (“Form S-1”) with the U.S. Securities and Exchange Commission (the “New Acceleration Event”).
E. The Company, for and in consideration of Employee’s execution of an amendment of even date
herewith to the aforementioned loan and security agreement, which amendment (among other things)
changes the Acceleration Event to the New Acceleration Event, has agreed to accelerate the payment
of the Bonus to Employee to immediately prior to the filing of the S-1 of the Company’s first
underwritten public offering, as opposed to immediately prior to completion of the Company’s first
underwritten public offering, as set forth in this Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and for such other
good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the
parties hereto agree as follows:
1. Amendment to Section 2.2. Section 2.2 of the Bonus Agreement is hereby amended in
its entirety to read as follows:
2.2 Acceleration of Bonus Upon Certain Events. Notwithstanding Section 2.1 hereof,
the Company’s obligation to pay the Bonus will be accelerated and the bonus shall become
immediately payable: (i) immediately prior to the filing of the Registration Statement on
Form S-1 of the Company’s first underwritten public offering of its securities registered
under the Securities Act of 1933, as amended; (ii) immediately prior to the consummation of
a Change in Control, provided, in either instance, that Employee is still employed
by the Company at such time; and (iii) upon the occurrence of a Bankruptcy Event.
2. Full Force and Effect. Except as amended by Section 1 hereof, the Bonus Agreement
remains in full force and effect.
3. Governing Law. This Amendment shall be construed, interpreted and governed by the
laws of the State of Illinois, without regard to the conflicts of law rules thereof.
4. Notices. Any notice given in connection with this Amendment shall be in writing
and shall be considered effected if delivered in accordance with the provisions of Section 3.8 of
the Bonus Agreement, as if such notice had been given in connection therewith.
5. Counterparts. This Amendment may be executed in counterparts, each of
which shall be deemed an original but all of which together shall constitute one and the same
instrument.
[Signature page follows.]
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first written
above.
| /s/ Xxxxxxx X. Xxxxxxx | ||||
| XX. XXXXXXX X. XXXXXXX | ||||
| NANOSPHERE, INC. | ||||||
| By: | /s/ Xxxx Xxxxxx
|
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| Name: | Xx. Xxxx Xxxxxx | |||||
| Title: | Chairman of the Board of Directors | |||||
[Signature Page to First Amendment to Bonus Agreement]
