AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit 10.1
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the “Agreement”) is entered into as of August
24, 2010 (the “Effective Date”), by and between Fibrocell Science, Inc., a Delaware corporation
(the “Company”) having its principal place of business at 000 Xxxxxxxxx Xxxxxxxxx, Xxxxx, XX 00000,
and Xxxxxx Xxxx (“Executive”, and the Company and the Executive collectively referred to herein as
the “Parties”), an individual residing in and working out of Ireland, having an address at 00 Xxxxx
Xxxx, Xxxxxxxxx, Xxxxxx.
W I T N E S S E T H:
WHEREAS, the Executive and the Company are parties to an agreement dated September 3, 2009
providing for Executive to serve as the Company’s Chief Operating Officer (the “Original Employment
Agreement”); and
WHEREAS, the Parties desire to amend and restate the Original Employment Agreement to reflect
Executive’s current responsibilities and to extend the term through August 24, 2013;
NOW, THEREFORE, in consideration of the premises and the mutual covenants and promises of the
Parties contained herein, the Parties, intending to be legally bound, hereby agree as follows:
1. Title and Job Duties.
(a) Subject to the terms and conditions set forth in this Agreement, the Company agrees to
employ Executive as Chief Financial Officer (“CFO”) and Chief Operating Officer (“COO”). Executive
shall report directly to the Board of Directors of the Company (the “Board”).
(b) Executive accepts such employment and agrees, during the term of his employment, to devote
his full business and professional time and energy to the Company, and agrees faithfully to perform
his duties and responsibilities in an efficient, trustworthy and business-like manner. Executive
also agrees that the Board shall determine from time to time such other duties as may be assigned
to him. Executive agrees to carry out and abide by such directions of the Board.
(c) Without limiting the generality of the foregoing, Executive shall not, without the written
approval of the Company, render services of a business or commercial nature on his own behalf or on
behalf of any other person, firm, or corporation, whether for compensation or otherwise, during his
employment hereunder.
2. Salary and Additional Compensation.
(a) Base Salary. The Company shall pay to Executive an annual base salary (“Base
Salary”) of $300,000, less applicable withholdings and deductions, in accordance with the Company’s
normal payroll procedures.
(b) Bonus. Commencing with the year ended December 31, 2010, Executive is entitled to
receive an annual bonus (the “Annual Bonus”), payable each year subsequent to the issuance of final
audited financial statements, but in no case later than 120 days after the end of the Company’s
most recently completed fiscal year. The final determination on the amount of the Annual Bonus
will be made by the Board of Directors (or the Compensation Committee of the Board of Directors, if
such committee has been formed), based on criteria established by the Board of Directors (or the
Compensation Committee of the Board of Directors, if such committee has been formed) within ninety
(90) days of the beginning of such fiscal year. The Board of Directors (or the Compensation
Committee of the Board of Directors, if such committee has been formed) may also consider other
more subjective factors in making its determination. The targeted amount of the Annual Bonus shall
be 50% of the Executive’s Base Salary. The actual Annual Bonus for any given period may be higher
or lower than 50%. For any fiscal year in which Executive is employed for less than the full year,
Executive may receive a bonus which is prorated based on the number of full months in the year
which are worked.
(c) Milestone Bonus. Executive shall be entitled to receive a one-time bonus in the
amount of Fifty Thousand Dollars (US$50,000.00) (the “Milestone Bonus”) upon the U.S. Food and Drug
Administration’s (the “FDA”) approval of the Company’s Biologics License Application filing,
payable to the Executive within thirty (30) days of the date of such FDA approval, provided that
the Executive is the CFO or COO at the time of said event.
(d) Option Grant. Contemporaneous with the execution of this Agreement, Executive
will receive a grant (the “Stock Option Grant) of stock options (the “Stock Options”) to purchase
400,000 shares at an exercise price per share equal to the closing price of the Company’s common
stock on the date of execution of this Agreement. The Stock Options shall have a term of ten (10)
years and shall vest as follows: (i) 40,000 shares shall vest upon execution of this Agreement, and
(ii) 360,000 shall vest in equal 1/36th installments (or 10,000 shares per installment)
monthly over a three-year period commencing August 24, 2010 (i.e. the first installment shall vest
on September 24, 2010), provided Executive is the COO or CFO on each vesting date.
The vesting of all Stock Options set forth above shall accelerate upon a Change in Control,
provided Executive is employed by the Company within sixty (60) days prior to the date of such
Change in Control. Notwithstanding the foregoing, the Stock Options shall terminate one (1) year
following a termination of the Executive or upon the voluntary termination of service by the
Executive. For purposes of this Agreement, “Change In Control” means the occurrence of any of the
following events: (i) an acquisition (other than directly from the Company or its affiliates) of
any voting securities of the Company by any person or group of affiliated or related persons (as
such term is defined in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”)), immediately after which such person or group has beneficial
ownership (within the meaning of the Exchange Act) of more than fifty percent (50%) of the combined
voting power of the Company’s then outstanding voting securities; provided that this subsection
shall not apply to an acquisition of voting securities by any employee benefit plan or trust
maintained by or for the benefit of the Company or its employees; (ii) a merger, consolidation or
reorganization involving the Company in which the holders of the Company’s voting securities
immediately prior to such event hold less than fifty percent (50%) of the voting securities of the
combined entity after such event; (iii) a complete liquidation or dissolution of
the Company; (iv) the sale or other disposition of all or substantially all of the Company’s assets
(it being understood that a sale of the Company’s Fibroblast technology will constitute a sale of
substantially all assets of the Company); or (v) any exclusive license covering at least the
territory of the United States to sell and manufacture the Company’s Fibroblast technology for all
current and future indications or applications.
3. Expenses. In accordance with Company policy, the Company shall reimburse Executive
for all reasonable business expenses properly and necessarily incurred and paid by Executive in the
performance of his duties under this Agreement upon his presentment of detailed receipts in the
form required by the Company’s policy.
4. Benefits.
(a) Vacation. Executive shall be entitled to four (4) weeks vacation per year, which
shall accrue at a rate of 1.67 days per month. Vacation must be taken in the year in which it
accrues.
(b) Health Insurance and Other Plans. Executive shall be eligible to participate in
the Company’s medical, dental and other employee benefit programs, if any, that are provided by the
Company for its employees at Executive’s level in accordance with the provisions of any such plans,
as the same may be in effect from time to time. At the Executive’s option, in lieu of providing
group medical benefits, the Company will reimburse the Executive for health insurance premium
payments made pursuant to a private supplemental health insurance policy in Ireland by the
Executive. The Company shall also reimburse the Executive for a term life policy.
5. Term. The term set forth in this Agreement will commence on the Effective Date
hereof and shall remain in effect for three (3) years and will automatically renew for subsequent
one (1) year periods (the “Term”) unless Executive or the Company is notified of non-renewal upon
no less than sixty (60) days’ written notice by the other Party.
6. Termination.
(a) Termination at the Company’s Election.
(i) For Cause. At the election of the Company, Executive’s employment may be
terminated for Cause (as defined below) upon written notice to Executive pursuant to Section 12 of
this Agreement. For purposes of this Agreement, “Cause” for termination shall mean that Executive:
(A) pleads “guilty” or “no contest” to or is convicted of an act which is defined as a felony under
federal or state law or the indictment of, or the bringing of formal charges against Executive on
charges involving criminal fraud or embezzlement; (B) in carrying out his duties, engages in
conduct that constitutes gross negligence or willful misconduct; (C) engages in any conduct that
may cause harm to the reputation of the Company; or (D) materially breaches any term of this
Agreement.
(ii) Upon Disability, Death or Without Cause. At the election of the Company,
Executive’s employment may be terminated without Cause: (A) should Executive become physically or
mentally unable to perform his duties for the Company hereunder and such
incapacity has continued for a total of ninety (90) consecutive days or any one hundred eighty
(180) days in a period of three hundred sixty-five (365) consecutive days (“Disability”); (B) upon
Executive’s death; or (C) upon ninety (90) days’ written notice for any other reason.
(b) Termination at Executive’s Election; Good Reason Termination. Notwithstanding
anything contained elsewhere in this Agreement to the contrary, Executive may terminate his
employment hereunder at any time and for any reason, upon ninety (90) days’ written notice pursuant
to Section 12 of this Agreement (“Voluntary Resignation”), provided that upon notice of
resignation, the Company may terminate Executive’s employment immediately and pay Executive ninety
(90) days’ pay in lieu of notice. Furthermore, the Executive may terminate this Agreement for
“Good Reason,” which shall be deemed to exist: (i) if the Company’s Board of Directors or that of
any successor entity of Company, fails to appoint or reappoint the Executive or removes the
Executive as the COO/CFO of the Company; or (ii) if Executive is assigned any duties materially
inconsistent with the duties or responsibilities of the COO/CFO of the Company as contemplated by
this Agreement or any other action by the Company that results in a material diminution in such
position, authority, duties, or responsibilities, excluding an isolated, insubstantial, and
inadvertent action not taken in bad faith and which is remedied by the Company promptly after
receipt of notice thereof given by Executive; provided that Executive shall act within 30 days of
any such diminution in the scope of his duties, responsibilities, authority or position.
7. Severance.
(a) If Executive’s employment is terminated, at the Company’s election at any time, for
reasons other than death, Disability, Cause or Voluntary Resignation, or by Executive for Good
Reason, Executive shall be entitled to receive severance payments equal to twelve (12) months of
Executive’s Base Salary and of the premiums associated with continuation of Executive’s benefits
pursuant to COBRA to the extent that he is eligible for them following the termination of his
employment; provided that if anytime within eighteen (18) months after a Change of Control either
(i) Executive is terminated, at the Company’s election at any time, for reasons other than death,
Disability, Cause or Voluntary Resignation, or (ii) Executive terminates this Agreement for “Good
Reason,” Executive shall be entitled to receive severance payments equal to: (i) two (2) years of
Executive’s Base Salary, (ii) Executive’s most recent Annual Bonus payment, and (iii) the premiums
associated with continuation of Executive’s benefits pursuant to COBRA to the extent that he is
eligible for them following the termination of his employment for a period of one (1) year after
termination. All severance payments shall be made in a lump sum within ten business days of
Executive’s execution and delivery of a general release of the Company, its parents, subsidiaries
and affiliates and each of its officers, directors, employees, agents, successors and assigns in a
form acceptable to the Company.
(b) Notwithstanding the foregoing, Executive agrees that in the event that all or a portion of
any payment described in Subparagraph (b) of this Section 7 constitutes nonqualified deferred
compensation within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended
(the “Code”), and Executive is at such time a specified employee, such payment or payments that
constitute nonqualified deferred compensation within the meaning of the Code shall not be made
prior to the date which is six (6) months after the date Executive separates from service (within
the meaning of the Code).
8. Confidentiality Agreement.
(a) Executive understands that during the Term he may have access to unpublished and otherwise
confidential information both of a technical and non-technical nature, relating to the business of
the Company and any of its parents, subsidiaries, divisions, affiliates (collectively, “Affiliated
Entities”), or clients, including without limitation any of their actual or anticipated business,
research or development, any of their technology or the implementation or exploitation thereof,
including without limitation information Executive and others have collected, obtained or created,
information pertaining to clients, accounts, vendors, prices, costs, materials, processes, codes,
material results, technology, system designs, system specifications, materials of construction,
trade secrets and equipment designs, including information disclosed to the Company by others under
agreements to hold such information confidential (collectively, the “Confidential Information”).
Executive agrees to observe all Company policies and procedures concerning such Confidential
Information. Executive further agrees not to disclose or use, either during his employment or at
any time thereafter, any Confidential Information for any purpose, including without limitation any
competitive purpose, unless authorized to do so by the Company in writing, except that he may
disclose and use such information when necessary in the performance of his duties for the Company.
Executive’s obligations under this Agreement will continue with respect to Confidential
Information, whether or not his employment is terminated, until such information becomes generally
available from public sources through no fault of Executive. Notwithstanding the foregoing,
however, Executive shall be permitted to disclose Confidential Information as may be required by a
subpoena or other governmental order, provided that he first notifies the Company of such subpoena,
order or other requirement and allows the Company the opportunity to obtain a protective order or
other appropriate remedy.
(b) During Executive’s employment, upon the Company’s request, or upon the termination of his
employment for any reason, Executive will promptly deliver to the Company all documents, records,
files, notebooks, manuals, letters, notes, reports, customer and supplier lists, cost and profit
data, e-mail, apparatus, computers, blackberries or other PDAs, hardware, software, drawings,
blueprints, and any other material of the Company or any of its Affiliated Entities or clients,
including all materials pertaining to Confidential Information developed by Executive or others,
and all copies of such materials, whether of a technical, business or fiscal nature, whether on the
hard drive of a laptop or desktop computer, in hard copy, disk or any other format, which are in
his possession, custody or control.
(c) Executive will promptly disclose to the Company any idea, invention, discovery or
improvement, whether patentable or not (“Creations”), conceived or made by him alone or
with others at any time during his employment. Executive agrees that the Company owns any such
Creations, conceived or made by Executive alone or with others at any time during his employment,
and Executive hereby assigns and agrees to assign to the Company all rights he has or may acquire
therein and agrees to execute any and all applications, assignments and other instruments relating
thereto which the Company deems necessary or desirable. These obligations shall continue beyond
the termination of his employment with respect to Creations and derivatives of such Creations
conceived or made during his employment with the Company. Executive understands that the
obligation to assign Creations to the Company shall not apply to any Creation which is developed
entirely on his own time without using any of the Company’s
equipment, supplies, facilities, and/or Confidential Information unless such Creation
(a) relates in any way to the business or to the current or anticipated research or development of
the Company or any of its Affiliated Entities; or (b) results in any way from his work at the
Company.
(d) Executive will not assert any rights to any invention, discovery, idea or improvement
relating to the business of the Company or any of its Affiliated Entities or to his duties
hereunder as having been made or acquired by Executive prior to his work for the Company, except
for the matters, if any, described in Appendix A to this Agreement.
(e) During the Term, if Executive incorporates into a product or process of the Company or any
of its Affiliated Entities anything listed or described in Appendix A, the Company is
hereby granted and shall have a non-exclusive, royalty-free, irrevocable, perpetual, worldwide
license (with the right to grant and authorize sublicenses) to make, have made, modify, use, sell,
offer to sell, import, reproduce, distribute, publish, prepare derivative works of, display,
perform publicly and by means of digital audio transmission and otherwise exploit as part of or in
connection with any product, process or machine.
(f) Executive agrees to cooperate fully with the Company, both during and after his employment
with the Company, with respect to the procurement, maintenance and enforcement of copyrights,
patents, trademarks and other intellectual property rights (both in the United States and foreign
countries) relating to such Creations. Executive shall sign all papers, including, without
limitation, copyright applications, patent applications, declarations, oaths, formal assignments,
assignments of priority rights and powers of attorney, which the Company may deem necessary or
desirable in order to protect its rights and interests in any Creations. Executive further agrees
that if the Company is unable, after reasonable effort, to secure Executive’s signature on any such
papers, any officer of the Company shall be entitled to execute such papers as his agent and
attorney-in-fact and Executive hereby irrevocably designates and appoints each officer of the
Company as his agent and attorney-in-fact to execute any such papers on his behalf and to take any
and all actions as the Company may deem necessary or desirable in order to protect its rights and
interests in any Creations, under the conditions described in this paragraph.
9. Non-solicitation; non-competition. (a) Executive agrees that, during the Term and,
if Executive is receiving severance payments pursuant to Section 7(a), until twelve (12) months
after the termination of his employment, Executive will not, directly or indirectly, including on
behalf of any person, firm or other entity, employ or solicit for employment any employee of the
Company or any of its Affiliated Entities, or anyone who was an employee of the Company or any of
its Affiliated Entities within the twelve (12) months prior to the termination of Executive’s
employment, or induce any such employee to terminate his or her employment with the Company or any
of its Affiliated Entities.
(b) Executive further agrees that, during the Term and, if Executive is receiving severance
payments pursuant to Section 7(a), until twelve (12) months after the termination of his
employment, Executive will not, directly or indirectly, including on behalf of any person, firm or
other entity, without the express written consent of an authorized representative of the Company,
(i) perform services within the Territory (as defined below) for
any Competing Business (as defined below), whether as an employee, consultant, agent,
contractor or in any other capacity, (ii) hold office as an officer or director or like position in
any Competing Business, (iii) request any present or future customers or suppliers of the Company
or any of its Affiliated Entities to curtail or cancel their business with the Company or any of
its Affiliated Entities, and (iv) accept business from such customers or suppliers of the Company
or any of its Affiliated Entities. These obligations will continue for the specified period
regardless of whether the termination of Executive’s employment was voluntary or involuntary or
with or without Cause.
(c) “Competing Business” means any corporation, partnership or other entity or person (other
than the Company) which is engaged in the development, manufacture, marketing, distribution or sale
of, or research directed to the development, manufacture, marketing, distribution or sale of
cellular biologic products or any other business carried on or planned to be carried on by the
Company.
(d) “Territory” shall mean within any state or foreign jurisdiction in which the Company or
any subsidiary of the Company is then providing services or products or marketing its services or
products (or engaged in active discussions to provide such services).
(e) Executive agrees that in the event a court determines the length of time or the geographic
area or activities prohibited under this Section 9 are too restrictive to be enforceable, the court
may reduce the scope of the restriction to the extent necessary to make the restriction
enforceable. In furtherance and not in limitation of the foregoing, the Company and the Executive
each intend that the covenants contained in Section 9 shall be deemed to be a series of separate
covenants, one for each and every other state, territory or jurisdiction of the United States and
any foreign country set forth therein. If, in any judicial proceeding, a court shall refuse to
enforce any of such separate covenants, then such unenforceable covenants shall be deemed
eliminated from the provisions hereof for the purpose of such proceedings to the extent necessary
to permit the remaining separate covenants to be enforced in such proceedings.
10. Representation and Warranty. Executive represents and warrants to the Company
that he is not subject to any employment agreement, non-competition provision, confidentiality
agreement or any other agreement restricting his ability fully to act hereunder, and, that upon the
execution and delivery of this Agreement by the Company, this Agreement shall be the valid and
binding obligation of the Executive, enforceable in accordance with its terms. The Executive
hereby acknowledges and represents that he has consulted with legal counsel regarding his rights
and obligations under this Agreement and that he fully understands the terms and conditions
contained herein Executive hereby indemnifies and holds the Company harmless against any losses,
claims, expenses (including attorneys’ fees), damages or liabilities incurred by the Company as a
result of a breach of the foregoing representation and warranty. The Company hereby represents and
warrants to the Executive that upon the execution and delivery of this Agreement by the Executive,
this Agreement shall be the valid and binding obligation of the Company, enforceable in accordance
with its terms.
11. Injunctive Relief. Without limiting the remedies available to the Company,
Executive acknowledges that a breach of any of the covenants contained in Sections 8 and 9 above
may result in material irreparable injury to the Company for which there is no adequate
remedy at law, that it will not be possible to measure damages for such injuries precisely and
that, in the event of such a breach or threat thereof, the Company shall be entitled, without the
requirement to post bond or other security, to obtain a temporary restraining order and/or
injunction restraining Executive from engaging in activities prohibited by this Agreement or such
other relief as may be required to specifically enforce any of the covenants in Sections 8 and 9 of
this Agreement.
12. Notice. Any notice or other communication required or permitted to be given to
the Parties shall be deemed to have been given if personally delivered, if sent by nationally
recognized overnight courier or if mailed by certified or registered mail, return receipt
requested, first class postage prepaid, and addressed as follows:
| (a) | If to Executive, to: Xxxxxx Xxxx 00 Xxxxx Xxxx Xxxxxxxxx, Xxxxxx |
||
| (x) | If to the Company, to: Fibrocell Science, Inc. 000 Xxxxxxxxx Xxxxxxxxx Xxxxx, XX 00000 Attention: Xxxxxx Xxxx |
||
with a copy to (which shall not constitute notice hereunder): Cavas Pavri Cozen X’Xxxxxx 0000 Xxxxxx Xxxxxx Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 |
13. Severability. If any provision of this Agreement is declared void or
unenforceable by a court of competent jurisdiction, all other provisions shall nonetheless remain
in full force and effect.
14. Indemnification. The Company will indemnify Executive and hold Executive harmless
to the fullest extent permitted by law with respect to Executive’s acts of service as an officer
and director of the Company. The Company further agrees that Executive will be covered by
“directors and officers” insurance policies with respect to Executive’s acts as an officer and
director.
15. Governing Law. This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the Commonwealth of Pennsylvania, without regard to the conflict of
laws provisions thereof. This Agreement is intended to comply with the Internal Revenue Code, and
shall be construed in a manner consistent with that intent. Any action, suit or other legal
proceeding that is commenced to resolve any matter arising under or relating to any
provision of this Agreement shall be submitted to the exclusive jurisdiction of any state or
federal court in Xxxxxxx County, Pennsylvania.
16. Waiver. The waiver by either Party of a breach of any provision of this Agreement
shall not be or be construed as a waiver of any subsequent breach. The failure of a Party to
insist upon strict adherence to any provision of this Agreement on one or more occasions shall not
be considered a waiver or deprive that Party of the right thereafter to insist upon strict
adherence to that provision or any other provision of this Agreement. Any waiver must be in
writing.
17. Assignment. This Agreement is a personal contract and Executive may not sell,
transfer, assign, pledge or hypothecate his rights, interests and obligations hereunder. Except as
otherwise herein expressly provided, this Agreement shall be binding upon and shall inure to the
benefit of Executive and his personal representatives and shall inure to the benefit of and be
binding upon the Company and its successors and assigns, including without limitation, any
corporation or other entity into which the Company is merged or which acquires all or substantially
all of the assets of the Company.
18. Entire Agreement. This Agreement (together with Appendix A hereto)
embodies all of the representations, warranties, and agreements between the Parties relating to
Executive’s employment with the Company. No other representations, warranties, covenants,
understandings, or agreements exist between the Parties relating to Executive’s employment. This
Agreement shall supersede all prior agreements, written or oral, relating to Executive’s
employment, including, without limitation, the Original Employment Agreement; provided that the
sentence in the Original Employment Agreement that governs the vesting of Executive’s shares
received in section 9 of the Original Employment Agreement shall continue to govern such vesting.
The sentence states: “One half (1/2) shall vest upon entering into this Agreement and one fourth
(1/4) shall vest on each successive one year anniversary.” No other provisions of the Original
Employment Agreement, including without limitation, section 9 of such agreement shall be
applicable. This Agreement may not be amended or modified except by a writing signed by the
Parties.
[Signature page follows]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed and delivered
on the date above.
| FIBROCELL SCIENCE, INC. |
||||
| By: | ||||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | Chief Executive Officer | |||
Agreed to and Accepted:
Appendix A
NONE.
