EMPLOYMENT AGREEMENT
Exhibit 10.1
This employment agreement is made and entered into as of this 8th day of June, 2010, by and between
Unilife Corporation (“Unilife”) and Xxxxxxx Xxxxxxx (“Xxxxxxx”). The term “Unilife”
shall include its subsidiaries, affiliates, assigns and successors in interest under Sections 7, 8,
and 13.
WHEREAS, Unilife wishes to employ Xxxxxxx as Executive Vice President and Chief Financial Officer,
and Xxxxxxx wishes to enter into this agreement to formalize his employment agreement; and
WHEREAS, Unilife is engaged in the business of designing, developing, manufacturing and supplying
innovative healthcare safety products for medical device and pharmaceutical industries; and
WHEREAS, Xxxxxxx will develop valuable relationships by virtue of his employment with Unilife, and
Xxxxxxx will have access to valuable confidential and proprietary information and trade secrets
belonging to Unilife; and
WHEREAS, Unilife and Xxxxxxx desire to set forth the terms of their employment relationship
in this agreement;
NOW, THEREFORE, in consideration of the promises and covenants set forth herein, and intending to
be legally bound hereby, the parties agree as follows:
1. Term. This agreement shall be effective upon the counter-execution of this agreement and is for
an initial multi-year term commencing on the effective date and expiring on June 30, 2012. This
agreement will automatically renew for one-year periods annually thereafter, unless either party
gives the other party thirty (30) days written notice in advance of the relevant expiration date of
its intention not to renew the agreement. Upon expiration or earlier termination of this employment
relationship, the parties will be relieved of their duties and obligations under this agreement,
except that the rights and obligations of Unilife under Section 6 below shall remain in full force
and effect until all appropriate payments have been made to Xxxxxxx and the rights and obligations
of Xxxxxxx set forth in Sections 7 and 8 below shall remain in full force and effect and shall
survive the expiration or termination of this agreement, regardless of the reason(s) for
termination.
2. Position and Duties.
(a) Unilife will employ Xxxxxxx as Executive Vice President and Chief Financial Officer,
and Xxxxxxx agrees to serve in such capacity for Unilife with responsibility for Unilife’s Finance
and Administration Department and such other duties as are assigned to him by the Chief Executive
Officer of Unilife, and shall have vested in him the authority and duties typically held by an
employee in such position. Xxxxxxx shall report to the Chief Executive Officer, with respect to the
performance of these
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duties, and shall be a member of the Executive Team. In the performance of these duties, Xxxxxxx
shall devote his knowledge, skill, attention, energies and all of his business time, and shall
comply with all of Unilife’s policies, rules, and procedures, as they may be amended from time to
time. Xxxxxxx shall not engage in any endeavor that would conflict with the rendition of his
services to Unilife, either directly or indirectly, without the prior written consent of Unilife;
provided, however, Xxxxxxx may participate in civic, charitable, educational, industry and
professional organizations, to the extent that such participation does not interfere with the
performance of his duties hereunder; and Xxxxxxx may also serve on corporate boards and committees,
but only with the prior written consent of Unilife.
(b) Notwithstanding the responsibilities and duties contained in Section 2(a) above,
Xxxxxxx acknowledges that all material decisions relating to the management of Unilife’s business
will be made by the Board of Directors of Unilife. In addition, any decisions which have the
capacity to affect significantly the financial standing of Unilife must be referred to the Board of
Directors of Unilife which will have ultimate control in respect of these matters.
3. Compensation.
(a) Base Salary. Xxxxxxx shall be paid an annual base salary of Two Hundred Forty-Five
Thousand Dollars ($245,000.00) payable in accordance with Unilife’s standard payroll practices.
Xxxxxxx’x base salary will be subject to the customary withholding and employment taxes, as
required by law, with respect to compensation paid by an employer to an employee. At the discretion
of the Board of Directors of Unilife, Xxxxxxx shall be eligible for increases in base salary.
Further, Unilife will not reduce Xxxxxxx’x base salary to less than what is agreed to herein.
(b) Bonus. Xxxxxxx shall be eligible to participate in Unilife’s Incentive Bonus Plan in
amounts and percentages as annually determined by Unilife’s Board of Directors and Chief Executive
Officer. For calendar year 2010, the potential cash bonus amount will be forty percent (40%) of
base salary, prorated based on the number of days employed in 2010. For calendar years 2011 and
2012, Xxxxxxx’x annual target cash bonus shall be a minimum of forty percent (40%) of base salary.
Bonuses are subject to achievement of such goals and objectives as the Compensation Committee of
the Board of Directors, upon recommendation of the Chief Executive Officer, determines in a set of
Key Performance Indicators. Any bonus payable for a calendar year shall be paid in a lump-sum
payment in the following calendar year on or before March 15. Xxxxxxx’x bonuses will be subject to
the customary withholding and employment taxes, as required by law, with respect to compensation
paid by an employer to an employee.
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4. Benefits.
(a) Benefits Generally Available to Unilife Employees. Xxxxxxx shall be eligible to
participate in Unilife’s benefits programs (including any equity incentive plan of Unilife or its
affiliates), as they may change from time to time. The benefits provided
to Xxxxxxx will be the same as the benefits provided to other similarly situated Unilife employees,
and may be changed upon expiration or other termination of the current benefits contracts. For
further information, Xxxxxxx should review any applicable benefit plan documents, which will govern
the terms of the benefits. Not withstanding the above, Unilife agrees
to request a waiver of the waiting period for health benefits for
Xxxxxxx and his spouse and will repay Xxxxxxx for any negative tax
consequences of such waiver.
(b) Vacation. Xxxxxxx shall also receive four (4) weeks of paid vacation per calendar year.
Any unused vacation days may be carried over or paid in lieu thereof, to the extent allowed by
Unilife’s policy for similarly situated employees.
(c) Equity Plans. All incentive compensation and stock-based compensation that Xxxxxxx may
receive from Unilife shall be subject to any policy adopted by Unilife, now or hereafter existing,
that imposes on Xxxxxxx stock ownership requirements, stock holding requirements, stock liquidation
restrictions or recoupment provisions provided that such requirements, restrictions and recoupment
provisions also apply to similarly situated members of senior management. Any stock options and
other stock-based awards that Xxxxxxx may receive from Unilife shall be governed by the applicable,
underlying award agreement.
(d) Expenses. Unilife shall reimburse Xxxxxxx for all reasonable and necessary expenses
incurred by him in carrying out his duties under this Agreement in accordance with Unilife’s
business expense policies, including without limitation, requirements with respect to reporting,
documentation and payment of such expenses. All such expenses shall be paid no later than December
31st of the calendar year following the year in which such expenses were incurred.
5. Indemnification. Unilife agrees to provide Xxxxxxx with indemnification equivalent to that
provided to other members of senior management and pursuant to Unilife’s Directors and Officers
insurance policies, as amended from time to time.
6. Termination and Pay Upon Termination.
(a) General Rule. In the event that Unilife terminates this agreement and Xxxxxxx’x
employment without Cause as defined herein, including employment termination due to Unilife’s
election not to renew this agreement where Xxxxxxx was willing and able to continue performing
services under the terms of this agreement, Unilife will pay Xxxxxxx:
(i) his base salary, at the rate in effect immediately before the date that
Xxxxxxx’x employment terminates, for twelve (12) months, in accordance with Unilife’s
standard payroll practices then in effect, commencing on the fifteenth (15th) day after the
date that Xxxxxxx’x employment terminates and the General Release provided for in Section 10
of this Agreement becomes irrevocable; and
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(ii) provided that Xxxxxxx is eligible for and timely elects to receive COBRA
health care continuation coverage, the cost of Xxxxxxx’x COBRA health care continuation
coverage premiums for twelve (12) months, commencing on the first of the month immediately
after the month which includes the date that Xxxxxxx’x employment terminates and the General
Release provided for in Section 10 of this Agreement becomes irrevocable.
In the event that Xxxxxxx terminates this agreement for any reason, including Xxxxxxx’x election
not to renew the agreement, Xxxxxxx shall not receive any compensation or benefits from the time
that he ceases to devote full time and attention to Unilife’s business, and, if Xxxxxxx terminates
this agreement prior to June 30, 2012, Xxxxxxx shall repay Unilife an amount equal to the aggregate
cost incurred by Unilife under Section 9 of this Agreement in connection with Xxxxxxx’x relocation
to Pennsylvania. This provision may be waived by the Compensation Committee of the Board of
Directors in its sole discretion. In addition, Xxxxxxx agrees to provide Unilife with thirty (30)
days advance written notice of his intent to terminate his employment, whether during the initial
term or any renewal thereof. Upon termination of this agreement, the parties will be relieved of
their duties and obligations, except that the rights and obligations of Unilife under this Section
6(a) shall remain in full force and effect until all appropriate payments have been made to Xxxxxxx
and the rights and obligations of Xxxxxxx set forth in Sections 7 and 8 below shall remain in full
force and effect and shall survive the expiration or termination of this agreement, regardless of
the reason(s) for termination. Upon termination of this agreement, Xxxxxxx shall not have any
further contact with any customers of Unilife until the expiration of the conditions of Section 8
of this Agreement.
(b) Termination Following a Change in Control.
(i) Termination Pay. Notwithstanding paragraph (a) immediately above, in the
event that Xxxxxxx’x employment is terminated coincident with a Change in Control as defined
in subparagraph (iii) immediately below, then Unilife in lieu of and not in duplication of
the severance compensation provided for in paragraph (a) immediately above, shall pay
Xxxxxxx:
(A) his base salary, at the rate in effect immediately before the date that
Xxxxxxx’x employment terminates, for eighteen (18) months, in accordance with
Unilife’s standard payroll practices then in effect, commencing on the fifteenth
(15th) day after the date that Xxxxxxx’x employment terminates and the General
Release provided for in Section 10 of this Agreement becomes irrevocable,
(B) provided that Xxxxxxx is eligible for and timely elects to receive COBRA
health care continuation coverage, the cost of Xxxxxxx’x COBRA health care
continuation coverage premiums for eighteen (18) months, commencing on with the
first of the month immediately after the
month which includes the date that Xxxxxxx’x employment terminates and the General
Release provided for in Section 10 of this Agreement becomes irrevocable,
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(C) payment of a lump-sum amount, equal to the amount of the bonus, if any,
earned by and paid to Xxxxxxx for the last completed fiscal year prior to the year
in which his employment terminates, which will be payable on the fifteenth (15th)
day after the date that Xxxxxxx’x employment terminates and the General Release
provided for in Section 10 of this Agreement becomes irrevocable, and
(D) notwithstanding anything to the contrary, all of his outstanding and
unvested options and other stock-based awards shall vest immediately upon such
termination of employment following the Change in Control.
Notwithstanding anything to the contrary, if the Change in Control trigger is a change in Xxxx
Xxxxxxxx no longer being Chief Executive Officer of Unilife, Xxxxxxx shall have the option to
voluntarily resign in the event of such a Change in Control, and receive the severance benefits set
forth in this Section 6(b)(i), however, Xxxxxxx must exercise such resignation right in writing
within one hundred and eighty (180) days of such Change in Control event or, in the absence of such
written resignation, he shall be deemed to have acknowledged that no Change in Control has occurred
for purposes of this Section 6(b)(i).
(ii) Definition of “Cause”. “Cause” will mean any one or more of the following:
(A) material neglect of assigned duties, willful misconduct in connection with
the performance of duties, or refusal to perform assigned duties (other than by
reason of disability) which continues uncured for . thirty (30) days following
receipt of written notice of such deficiency from the Chief Executive Officer,
specifying the scope and nature of the deficiency;
(B) an act of dishonesty;
(C) engaging in illegal conduct;
(D) committing a crime relating to an act of dishonesty or fraud;
(E) engaging in any act of moral turpitude that causes material
harm to Unilife or its reputation;
(F) breaching, in any material respect, the terms of any
agreement with Unilife; or
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(G) commencement of employment with any other employer while an employee of
Unilife without the prior written consent of the Chief Executive Officer.
Any determination of “Cause” as used herein will be made in good faith by the Chief
Executive Officer.
(iii) Definition of “Change in Control”. “Change in Control” means a: (i) Change
in Ownership of Unilife Corporation, (ii) Change in Effective Control of Unilife
Corporation, (iii) Change in the Ownership of Assets of Unilife Corporation, all as
described herein and construed in accordance with section 409A of the Internal Revenue Code
of 1986, as amended (the “Code”), or (iv) a change in the Chief Executive Officer whereby
the position is no longer held by Xxxx Xxxxxxxx.
(A) A Change in Ownership of Unilife Corporation shall occur on the date that
any one Person acquires, or Persons Acting as a Group (or Group) acquire, ownership
of the capital stock of Unilife Corporation that, together with the stock held by
such Person or Group, constitutes more than fifty percent (50%) of the total fair
market value or total voting power of the capital stock of Unilife Corporation.
However, if any one Person is, or Persons Acting as a Group are, considered to own
more than fifty percent (50%) of the total fair market value or total voting power
of the capital stock of Unilife Corporation, the acquisition of additional stock by
the same Person or Persons Acting as a Group is not considered to cause a Change in
Ownership of Unilife Corporation or to cause a Change in Effective Control of
Unilife Corporation. An increase in the percentage of capital stock owned by any one
Person, or Persons Acting as a Group, as a result of a transaction in which Unilife
Corporation acquires its stock in exchange for property will be treated as an
acquisition of stock.
(B) A Change in Effective Control of Unilife Corporation shall occur on the
date a majority of members of the Board of Directors of Unilife Corporation is
replaced during any twelve (12)-month period by directors whose appointment or
election is not endorsed by a majority of the members of the Board of Directors of
Unilife Corporation before the date of the appointment or election.
(C) A Change in the Ownership of Assets of Unilife Corporation shall occur on
the date that any one Person acquires, or Persons Acting as a Group acquire (or has
or have acquired during the twelve (12)-month period ending on the date of the most
recent acquisition by such Person or Persons), assets (including tangible/real
property and intangible property (such as goodwill)) from Unilife Corporation the
total gross fair market value of which is more than fifty percent (50%) of the
total gross fair
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market value of all of the assets of Unilife Corporation immediately before such acquisition or
acquisitions. For this purpose, gross fair market value means the value of the assets of Unilife
Corporation, or the value of the assets being disposed of, determined without regard to any
liabilities associated with such assets.
(D) The following rules of construction apply in interpreting the
definition of Change in Control:
(I) A Person means any individual, entity or group within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended, other than
employee benefit plans sponsored or maintained by Unilife Corporation and by entities
controlled by Unilife Corporation or an underwriter of the capital stock of Unilife
Corporation in a registered public offering.
(II) Persons will be considered to be Persons Acting as a Group if they are owners of a
corporation that enters into a merger, consolidation, purchase or acquisition of stock, or
similar business transaction with the corporation. If a Person owns stock in both
corporations that enter into a merger, consolidation, purchase or acquisition of stock, or
similar transaction, such shareholder is considered to be acting as a Group with other
shareholders only with respect to the ownership in that corporation before the transaction
giving rise to the change and not with respect to the ownership interest in the other
corporation. Persons will not be considered to be acting as a Group solely because they
purchase assets of the same corporation at the same time or purchase or own stock of the
same corporation at the same time, or as a result of the same public offering.
(III) For purposes of this Section 6(b), fair market value shall be determined in
accordance with Code Section 409A.
(IV) A Change in Control shall not include a transfer to a related person as described
in Code section 409A or a public offering of capital stock of Unilife Corporation.
(E) For purposes of this Section 6(b), Code section 318(a)
applies to determine stock ownership. Stock underlying a vested option is
considered owned by the individual who holds the vested option (and the
stock underlying an unvested option is not considered owned by the
individual who holds the unvested option). For purposes of the preceding
sentence, however, if a vested option is exercisable for stock that is not
substantially vested (as defined by Treasury Regulation §1.83-3(b) and (j),
the stock underlying the option is not treated as owned by the individual
who holds the option.
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7. Confidential Information.
(a) Xxxxxxx acknowledges that Unilife has a valuable property interest in all aspects of its
business relationships with its customers, clients, vendors and suppliers. In the course of
Xxxxxxx’x work with Unilife, Xxxxxxx has become aware of and familiar with secret and confidential
information of Unilife relating to its customers, clients, vendors and suppliers, and its internal
business operations. Secret and confidential information includes, but is not limited to, Unilife’s
business plans, customer lists, customer data, marketing plans, supplier and vendor lists and cost
information, software and computer programs, data processing systems and information contained
therein, financial statements, financial data, acquisition and divestiture plans, and any other
trade secrets or confidential or proprietary information, documents, reports, plans, or data, of or
about Unilife that is not already available to the public.
(b) Xxxxxxx agrees that he will not, without the written consent of Unilife, during the term
of this agreement or thereafter, disclose or make any use of secret and confidential information,
except as may be required in the performance of his duties under Section 2 of this agreement.
Xxxxxxx agrees that, following the termination of his employment with Unilife for any reason, he
will never use secret and confidential information to compete with Unilife in any manner, and he
will never disclose any secret and confidential information to any other business or individual,
unless such secret or confidential information is: (i) publicly known through no breach of the
provisions of this Section 7 by either party, (ii) lawfully disclosed by a third party, or (iii)
disclosed pursuant to legal requirement or court order. In no event shall any disclosure made to
investment banking firms or private equity firms at the request of Unilife and as part of Xxxxxxx’x
duties ever be considered a violation of this Section 7.
(c) Upon termination of this agreement, Xxxxxxx shall surrender to Unilife all records and all
paper and/or electronic copies made of those records that pertain to any aspect of the business of
Unilife, including all secret and confidential information.
8. Agreement Not To Compete.
(a) In consideration for continued employment by Unilife and the benefits of this agreement,
Xxxxxxx agrees to be bound by the covenant not to compete as set forth in Section 8 of this
agreement below.
(b) Xxxxxxx agrees that during the term of this agreement and for a period of two (2) years
following the termination of this agreement for any reason, he will not, directly or indirectly:
(i) render services to, become employed by, be engaged as a consultant by, own, or have
a financial or other interest in (either as an individual, partner, joint venture, owner,
manager, employee, partner, officer, director, independent
contractor, or other similar role) any business that is engaged in any business activity
that is in competition with the activities of Uniiife.
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(ii) induce, offer, assist, encourage, or suggest that another business or enterprise
offer employment to or enter into a consulting arrangement with any individual who is
employed by Uniiife, or induce, offer, assist, encourage, or suggest that any Uniiife
employee terminate her or her employment with Uniiife, or accept employment with any other
business or enterprise.
(c) In the event that Xxxxxxx commits any breach of Section 8(b) above, Xxxxxxx acknowledges
that Uniiife would suffer substantial and irreparable harm and damages. Accordingly, Xxxxxxx hereby
agrees that in such event, Uniiife shall be entitled to temporary and/or permanent injunctive
relief, without the necessity of proving damage, to enforce the provisions of this Section, all
without prejudice to any and all other remedies that Uniiife may have at law or in equity and that
Uniiife may elect or invoke. Xxxxxxx agrees that if any of the provisions of this Section are or
become unenforceable, the remainder hereof shall nevertheless remain binding upon him to the
fullest extent possible, taking into consideration the purposes and spirit of this agreement. Any
invalid or unenforceable provision is to be reformed to the maximum time, geographic and/or
business limitations permitted by applicable laws, so as to be valid and enforceable.
(d) Xxxxxxx expressly acknowledges and agrees that the restrictive covenants set forth in
Sections 7 and 8 above are absolutely necessary to protect the legitimate business interests of
Uniiife, because he is employed in a position of trust and confidence and is provided with
extensive access to Unilife’s most confidential and proprietary trade secrets, and has significant
involvement in important business relationships, which constitute the goodwill of Uniiife. Xxxxxxx
further agrees and acknowledges that these restrictive covenants are reasonable, will not restrict
him from earning a livelihood following the termination of employment, and are intended by the
parties to be enforceable following termination of employment for any reason.
(e) In the event that Uniiife must bring legal action to enforce or seek a remedy for any
breach of the provisions of Sections 7 or 8 of this agreement and Xxxxxxx is found by a court to
have breached any of these provisions, Xxxxxxx agrees to reimburse Uniiife for any and all
expenses, including attorneys’ fees and court costs, incurred by it in enforcing the terms of these
Sections of the agreement.
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9. Relocation and Temporary Housing Expenses.
(a) Uniiife shall pay Xxxxxxx $100,000 (the “Relocation Payment”), to assist Xxxxxxx in
paying Xxxxxxx’x relocation expenses associated with his move to Pennsylvania in connection with
his employment by Uniiife. The Relocation Payment will be paid in a lump sum to him on or before
July 7, 2010. If Xxxxxxx incurs actual, reasonable and customary relocation expenses during the
first year of his employment that exceed $100,000 (for items such as closing costs relating to the
sale of Xxxxxxx’x
current house, payment for moving Xxxxxxx’x household goods to Pennsylvania, including packing,
unpacking, and insurance, storage of Xxxxxxx’x household goods for a maximum of six months while
Xxxxxxx and his family are in temporary housing, and the cost of moving up to two vehicles)
(“Excess Relocation Expenses”), he may provide the Chief Executive Officer with documentation of
such Excess Relocation Expenses, and the Chief Executive Officer may elect, in his discretion, to
reimburse Xxxxxxx for all or part of such Excess Relocation Expenses. In addition to the Relocation
Payment and Excess Relocation Expenses, Unilife will reimburse Xxxxxxx for the reasonable cost of
temporary housing in Pennsylvania for up to six months and will reimburse Xxxxxxx for the
reasonable expenses associated with two house-hunting trips by Xxxxxxx and his spouse.
Reimbursement of such costs and expenses will be made upon the request of Xxxxxxx, subject to
Xxxxxxx’x providing reasonable documentation of the reimbursable costs and expenses.
(b) Any taxes payable with respect to the payments made by Unilife to Xxxxxxx pursuant to
this Section 9, including without limitation the Relocation Payment, shall be the sole
responsibility of Xxxxxxx, and Unilife will follow federal, state and local tax regulations with
regard to the reporting of such payments.
10. General Release. As a condition of receiving the severance compensation and benefits described
in Section 6, Unilife and Xxxxxxx will execute a mutual general release of claims (which is in a
form acceptable to Unilife). Such general release would not include rights to previously vested
options or claims for any compensation earned (including, without limitation, accrued vacation), or
reimbursement of expenses incurred, through the date of termination. Such release must be agreed
to, executed and irrevocable no later than 30 days following Xxxxxxx’x termination date.
11. Dispute Resolution. Any controversy, claim or dispute involving the parties (or their
affiliated persons) directly or indirectly concerning this agreement shall be finally settled by
binding arbitration held in Harrisburg, Pennsylvania by one arbitrator (who is mutually acceptable
to both parties as well as licensed to practice law in the Commonwealth of Pennsylvania) in
accordance with the rules of employment arbitration then followed by the American Arbitration
Association or any successor to the functions thereof. The arbitrator shall apply Pennsylvania law
in the resolution of all controversies, claims and disputes and shall have the right and authority
to determine how his or her decision or determination as to each issue or matter in dispute may be
implemented or enforced. Any decision or award of the arbitrator shall be final and conclusive for
both Xxxxxxx and Unilife (and its affiliates), and there shall be no appeal there from other than
causes of appeal allowed by the Federal Arbitration Act. Unilife shall bear all costs of the
arbitrator in any action brought under this agreement. The arbitrator shall have the power to award
attorney’s fees and arbitration costs to the prevailing party, if the award of attorney’s fees and
litigation costs would be permitted by a court. The parties hereto agree that any action to compel
arbitration may be brought in the appropriate Pennsylvania state or federal court, and in
connection with such action to compel, the laws of the Commonwealth of Pennsylvania and the Federal
Arbitration Act shall
control. Application may also be made to such court for confirmation of any decision or award of
the arbitrator, for an order of the enforcement and for any other remedies, which may be necessary
to effectuate such decision or award. The parties hereto hereby consent to the jurisdiction of the
arbitrator and of such court and waive any objection to the jurisdiction of such arbitrator and
court.
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12. Non-waiver. A waiver of any provision of this agreement by either party shall not prevent
either party from enforcing that provision or any other provision hereof.
13. Assignment. This agreement is personal and may not be assigned by Xxxxxxx. Any assignment of
this agreement between Unilife (or its successor) and its affiliates (and their successors) shall
not constitute a termination of Xxxxxxx’x employment hereunder. This agreement (including the
Restrictive Covenants set forth in Sections 7 and 8) shall inure to the benefit of and be binding
upon any successor to Unilife. The parties specifically understand and agree that the non-compete
provisions of Section 8 will inure to the benefit of a successor and that Xxxxxxx will remain bound
by these provisions in the event of a sale or corporate reorganization of Unilife.
14. Severability. Each provision of this agreement is severable and distinct from, and independent
of, every other provision hereof. If one provision hereof is declared void, the remaining
provisions shall remain in effect. Any provision of this agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective only to the extent
of such prohibition or unenforceability without invalidating or affecting the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
15. Entire Agreement. This agreement contains the entire agreement of the parties concerning the
employment relationship and supersedes any prior agreements or understandings between the parties
concerning the terms and conditions of Xxxxxxx’x employment, whether oral or written; provided,
however, that Xxxxxxx’x equity grants shall be governed by the equity grant documents and will be
in such amounts as stated in Xxxxxxx’x offer letter dated June 2, 2010; provided further, that any
stock options or other stock-based awards provided to Xxxxxxx shall be governed by Unilife’s stock
incentive plans as they are amended from time to time, except as provided herein. The parties
acknowledge, in entering into this agreement that they have not relied upon any promise or
inducement not specifically set forth herein. Any changes to this agreement must be in writing and
signed by both parties.
16. Section 409A.
(a) This agreement is intended to comply with, or otherwise be exempt from, Code section
409A and any regulations and Treasury guidance promulgated thereunder, and Unilife shall be
required to interpret the terms of this agreement as necessary to comply with the requirements of
Code section 409A.
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(b) Unilife shall undertake to administer, interpret, and construe this agreement in a
manner that does not result in the imposition on Xxxxxxx of any additional tax, penalty, or
interest under Code section 409A.
(c) Unilife and Xxxxxxx agree that they will execute any and all amendments to this agreement
permitted under applicable law as they mutually agree in good faith may be necessary to ensure
compliance with the distribution provisions of Code section 409A or as otherwise needed to ensure
that this agreement complies with that section.
(d) The preceding provisions, however, shall not be construed as a guarantee by Unilife of any
particular tax effect to Xxxxxxx under this agreement. Unilife shall not be liable to Xxxxxxx for
any payment made under this agreement that is determined to result in an additional tax, penalty,
or interest under Code section 409A, nor for reporting in good faith any payment made under this
agreement as an amount includible in gross income under that section.
(e) For purposes of Code section 409A, the right to a series of installment payments under
this agreement shall be treated as a right to a series of separate payments.
(f) With respect to any reimbursement of future expenses of, or any provision of in-kind
benefits to, Xxxxxxx, as specified under this agreement, such reimbursement of expenses or
provision of in-kind benefits shall be subject to the following conditions: (i) the expenses
eligible for reimbursement or the amount of in-kind benefits provided in one taxable year shall not
affect the expenses eligible for reimbursement or the amount of in-kind benefits provided in any
other taxable year, except for any medical reimbursement arrangement providing for the
reimbursement of expenses referred to in Code section 105(b); (ii) the reimbursement of an eligible
expense shall be made no later than the end of the year after the year in which such expense was
incurred; and (iii) the right to reimbursement or in-kind benefits shall not be subject to
liquidation or exchange for another benefit. Any tax gross-up payment shall be made by no later
than the end of the calendar year following the year in which Xxxxxxx remits the taxes.
(g) “Termination of employment,” “resignation,” or words of similar import, as used in this
agreement means, for purposes of any payments under this agreement that are payments of deferred
compensation subject to Code section 409A, Xxxxxxx’x “separation from service” as defined in that
section.
(h) If a payment obligation under this agreement arises on account of Xxxxxxx’x
separation from service while Xxxxxxx is a “specified employee” (as defined under Code section 409A
and determined in good faith by the Unilife), any payment of “deferred compensation” (as defined
under Treasury regulation section 1.409A-1 (b)(1), after giving effect to the exemptions in
Treasury regulation sections 1.409A-1 (b)(3) through (b)(12)) that is scheduled to be paid within
six (6) months after such separation from service shall accrue without interest and shall be paid
within 15 days after the end
of the six-month period beginning on the date of such separation from service or, if
earlier, within 15 days after the appointment of the personal representative or executor of
Xxxxxxx’x estate following his death.
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17. Excise Tax on Parachute Payments. Xxxxxxx shall bear all expense of, and be solely
responsible for, all federal, state, local or foreign taxes due with respect to any payment
received hereunder, including, without limitation, any excise tax imposed by Code section 4999; provided,
however, that any payment or benefit received or to be received by Xxxxxxx in connection with a
Change in Control or the termination of Xxxxxxx’x employment (whether payable pursuant to the terms
of this Agreement (“Contract Payments”) or any other plan, arrangements or agreement with Unilife
or any affiliate (collectively with the Contract Payments, the “Total Payments”) shall be reduced
to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by
Code section 4999 but only if, by reason of such reduction, the net after-tax benefit received by
Xxxxxxx shall exceed the net after-tax benefit that would be received by Xxxxxxx if no such
reduction was made.
For purposes of this Section 17, “net after-tax benefit” shall mean (i) the total of all
payments and the value of all benefits which Xxxxxxx receives or is then entitled to receive from
Unilife that would constitute “excess parachute payments” within the meaning of Code section 280G,
less (ii) the amount of all federal, state, local and foreign income taxes payable with respect to
the foregoing calculated at the maximum marginal income tax rate for each year in which the
foregoing shall be paid to Xxxxxxx (based on the rate in effect for such year as set forth in the
Code or other applicable tax law as in effect at the time of the first payment of the foregoing),
less (iii) the amount of excise taxes imposed with respect to the payments and benefits described
in (i) above by Code section 4999.
The foregoing determination shall be made by a nationally recognized accounting firm (the
“Accounting Firm”) selected by Unilife and reasonably acceptable to Xxxxxxx (which may be, but will
not be required to be, Unilife’s independent auditors). The Accounting Firm shall submit its
determination and detailed supporting calculations to both Xxxxxxx and Unilife within fifteen (15)
days after receipt of a notice from either Unilife or Xxxxxxx that Xxxxxxx may receive payments
which may be “parachute payments.” If the Accounting Firm determines that a reduction is required
by this Section 17, the Contract Payments consisting of cash severance shall be reduced to the
extent necessary so that no portion of the Total Payments shall be subject to the excise tax
imposed by Code section 4999, and Unilife shall pay such reduced amount to Xxxxxxx in accordance
with the terms of this agreement. If the Accounting Firm determines that none of the Total
Payments, after taking into account any reduction required by this Section 17, constitutes a
“parachute payment” within the meaning of Code section 280G, it will, at the same time as it makes
such determination, furnish Xxxxxxx and Unilife an opinion that Xxxxxxx has substantial authority
not to report any excise tax under Code section 4999 on his federal income tax return.
Page 13 of 14
Xxxxxxx and Unilife shall each provide the Accounting Firm access to and copies of any books,
records, and documents in the possession of Xxxxxxx or Unilife, as the case may be, reasonably
requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection
with the preparation and issuance of the determinations and calculations contemplated by this
Section 17. The fees and expenses of the Accounting Firm for its services in connection with the
determinations and calculations contemplated by this Section 17 shall be borne by Unilife.
18. Counterparts. This agreement may be executed on separate counterparts, each of which is
deemed to be an original and all of which taken together constitute one and the same agreement.
19.
Interpretation. The captions and headings of this agreement are not part of the provisions
hereof and shall have no force or effect.
20. Notices. Any notices, requests, demands and other communications provided for by this agreement
shall be sufficient if in writing and if hand delivered, sent by overnight courier, or sent by
registered or certified mail to Xxxxxxx at the last address he has filed in writing with Unilife
or, in the case of Unilife, to Unilife’s Chief Executive Officer at Unilife’s principal executive
offices.
21.
Governing Law. The terms of this agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Pennsylvania without giving effect to provisions thereof
regarding conflict of laws.
22. Legal
Review Reimbursement. Unilife agrees to reimburse Xxxxxxx for the legal costs associated
with having this Agreement reviewed by legal counsel prior to execution. Such reimbursement must be
submitted within thirty (30) days of his employment commencement date and will be reimbursed by
Unilife within thirty (30) days of the receipt of the request; provided however, that such amount
does not exceed $3,500.
IN WITNESS WHEREOF, and wishing to be legally bound, the parties have executed this
agreement as of the date first above written.
| UNILIFE CORPORATION |
Xxxxxxx Xxxxxxx: | |||
| By: | /s/ Xxxx Xxxxxxxx | /s/ Xxxxxxx Xxxxxxx | ||
| Name: | Xxxx Xxxxxxxx | |||
| Title: | Chief Executive Officer | |||
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