EXHIBIT 10.39
AGREEMENT
THIS AGREEMENT, made this ___ day of December, 2001 by and between Derma
Sciences, Inc., a business corporation organized under the laws of the
Commonwealth of Pennsylvania ("Employer") and Xxxx X. Xxxxxxxxx ("Employee").
WHEREAS, Employee is currently employed by Employer as its Vice President
for Sales pursuant to that certain agreement dated January ___, 2001 ("2001
Agreement");
WHEREAS, the parties desire to amend and restate the 2001 Agreement;
NOW, THEREFORE, the parties hereto, in consideration of the mutual promises
and covenants herein contained, hereby agree as follows:
1. Amendment and Restatement. Saving and excepting the amendment and
cancellation of prior employment agreements pursuant to paragraph 2, the grant
of stock options pursuant to paragraph 3 and the note cancellation pursuant to
paragraph 8 of the 2001 Agreement, the 2001 Agreement is hereby amended and
restated in its entirety.
2. Employment. Employer hereby employs Employee, and Employee agrees to be
employed by Employer, as Employer's Vice President for Sales upon the terms and
conditions hereinbelow set forth. Employee shall perform such duties and assume
such responsibilities as may be determined by the President and Chief Executive
Officer of Employer.
3. Time and Efforts. Employee will devote substantially all of his business
time and efforts to his duties hereunder.
4. Compensation. During the Term hereof Employer shall pay compensation to
Employee as follows:
(a) Base compensation at the rate of One Hundred Ten Thousand Dollars
($110,000) per year; and
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(b) Bonus, stock options and/or such other incentive compensation as
may be determined by Employer's President and Chief Executive Officer.
Reviews by the President and Chief Executive Officer of Employee's base
compensation and incentive compensation shall be undertaken not less often than
annually. The principal criteria utilized in the conduct of such reviews shall
be the extent to which Employer attains its performance objectives and the
extent of Employee's contributions thereto, together with such other criteria as
the President and Chief Executive Officer may establish.
5. Vacation. During the term hereof, Employee shall be entitled to paid
vacation of three (3) weeks per year.
6. Term. This Agreement shall be effective as of January 1, 2001 and shall
continue indefinitely until terminated as provided herein. Subject to the
requirements of paragraph 7 herein below, either party hereto may terminate this
Agreement upon thirty (30) days written notice of such termination to the other
party.
7. Severance. Upon termination of this Agreement by Employer "without
cause," Employer shall pay to Employee severance compensation in the amount of
six months' base compensation at the rate most recently in effect pursuant to
paragraph 4(a) hereof.
8. Change in Control. Within six months of the occurrence of a "change in
control" of Employer (defined below), Employee may, in the event his duties,
responsibilities or status have been diminished subsequent to such change in
control, tender his resignation from Employer and receive severance compensation
as provided in paragraph 7 above to the same extent as if Employer terminated
this Agreement "without cause." For purposes of this paragraph, a "change in
control" shall mean a change in
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ownership of stock possessing greater than fifty percent (50%) of the total
combined voting power of all classes of stock entitled to vote of Employer.
9. Confidential Information. Employee recognizes and acknowledges that he
has had, and will have, access to certain confidential information of Employer
and that such information constitutes valuable, special and unique property of
Employer. Employee will not, during or after the term of his employment,
disclose any of such confidential information to any person, firm, corporation,
association, or other entity for any reason or purpose whatsoever unless ordered
to do so by a court or other tribunal or government agency with jurisdiction
over the subject matter and Employee. In the event of a breach or threatened
breach by Employee of the provisions of this paragraph, Employer shall be
entitled to an injunction restraining Employee from disclosing confidential
information of Employer or from rendering any services to any person, firm,
corporation, association or other entity to whom such confidential information
has been disclosed or is threatened to be disclosed.
10. Option Exercise Extension. In the event either that Employer terminates
this Agreement "without cause" or Employee tenders his resignation upon a
"change in control," then the period to exercise any option to purchase the
securities of Employer of which Employee may be possessed shall be extended to
the expiration thereof as set forth in the option instrument.
11. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania (without reference
to its rules as to conflicts of law) and the federal law of the United States of
America.
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12. Entire Agreement. This agreement contains the entire understanding of
the parties relative to the subject matter hereof and may be modified only by a
writing signed by the party against whom enforcement of any waiver, change,
extension or modification is sought to be enforced.
IN WITNESS WHEREOF, this Agreement has been executed by Employee and
Employer on the date first hereinabove written.
EMPLOYER:
DERMA SCIENCES, INC.
By:
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Xxxxxx X. Xxxxxx
President and Chief Executive Officer
EMPLOYEE:
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Xxxx X. Xxxxxxxxx
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