EMPLOYMENT AGREEMENT
EXHIBIT
10.4
This
EMPLOYMENT AGREEMENT (“Agreement”) made effective as of July 17, 2009 by and
between BioMimetic
Therapeutics, Inc., a Delaware corporation (the “Company”), and Xxxx Xxxxxxx (the
“Executive”).
In
consideration of the mutual covenants contained in this Agreement, the parties
hereby agree as follows:
1. Employment. The
Company agrees to employ the Executive and the Executive agrees to be employed
by the Company as Vice President and General Counsel and to be responsible for
the typical management responsibilities expected of an employee
holding such position and such other responsibilities customarily
pertaining to such position as may be assigned to Executive from time to time by
the Chief Executive Officer of the Company, all for the Period of Employment as
provided in Section 2 below and upon the terms and conditions provided in the
Agreement.
2. Term. The
period of Executive's employment under this Agreement, will commence on July 17,
2009 , and shall continue for a period of three (3) years through July 16, 2012,
subject to extension or termination as provided in this Agreement (“Period of
Employment”). Any expiration or termination of this Agreement shall
not affect the term of the Indemnification Agreement dated May 12, 2006
(“Indemnification Agreement”) and the Confidential Information and Inventions
Agreement dated July 5, 2005 (“Confidential Information and Inventions
Agreement”) between the Parties. To the extent that Executive’s
employment continues following the expiration and nonrenewal of this Agreement,
the Executives employment shall continue at-will, however Executive’s rights
with respect to Without Cause Termination shall continue to the extent set forth
in Section 8(d)(ii).
3. Duties. During
the Period of Employment, the Executive shall devote their full business time,
attention and skill to the business and affairs of the Company and its
Affiliates. The Executive will perform faithfully the duties that may
be assigned to him from time to time in accordance herewith by the Chief
Executive Officer of the Company.
4. Compensation. For
all services rendered by the Executive in any capacity during the Period of
Employment, the Executive shall be compensated as follows:
(a) Base
Salary. The Company shall pay the Executive an annual base
salary of $223,000 (“Base Salary”). Base Salary shall be payable
according to the customary payroll practices of the Company but in no event less
frequently than twice each month. The Base Salary shall be reviewed
each fiscal period and shall be subject to increase according to the policies
and practices adopted by the Company from time to time.
(b) Incentive Compensation
Award. The Executive shall also be eligible to receive annual
incentive bonuses consisting of cash and/or options to purchase Company common
stock consistent with annual incentive awards for other members of the senior
management team. The payment of such bonuses shall be based on the
performance and satisfaction of specific milestones mutually agreed upon by the
Chief Executive Officer and the Executive, and shall be further based upon the
Executive’s performance as evaluated by the Chief Executive
Officer. In no event shall the payment of any annual incentive bonus
to the Executive be made later than March 15 of the calendar year next following
the calendar year during which such annual incentive bonus is
earned.
(d) Additional
Benefits. The Executive will be entitled to participate in all
employee benefit plans or programs and receive all benefits and perquisites for
which any salaried employees are eligible under any existing or future plan or
program established by the Company or its affiliates and available to similarly
situated employees of the Company, including participation in stock option
plans. The Executive may participate to the extent permissible under the terms
and provisions of such plans or programs. These may include group
hospitalization, health, dental care, life or other insurance, sick leave plans,
travel or accident insurance and disability insurance. Nothing in
this Agreement will preclude the Company or Company affiliates from amending or
terminating any of the plans or programs applicable to salaried employees or
senior executives as long as the total value of all benefits is not materially
decreased. The Executive will be entitled to annual paid time off,
consistent with the Company’s paid time off policy and Company holidays as
determined by the Company. The Company will provide Executive with sufficient
equipment, supplies and resources to accomplish their duties and will purchase
and/or reimburse Executive for the cost of maintaining preapproved professional
memberships.
5. Business Expenses and Other
Expenses. The Company will reimburse the Executive for all
reasonable travel and other expenses incurred by the Executive in connection
with the performance of their duties and obligations under this
Agreement.
6. Disability.
(a) In the event of
disability of the Executive during the Period of Employment, the Company will
continue to pay the Executive according to the compensation provisions of this
Agreement during the period of the disability, until such time as any long term
disability insurance benefits accruing to the Executive are
available. However, in the event the Executive is disabled for twelve
(12) weeks (consecutive or nonconsecutive) during any twelve (12) month period,
the Company may terminate the employment of the Executive. In this
case, normal compensation will cease, except for earned but unpaid Base Salary
and, effective as of his termination date, the Executive shall be entitled to
receive salary continuation for a period of six (6) months thereafter, to be
paid in substantially equal installments in accordance with the Company’s
regular payroll practices applicable to similarly situated active employees and
determined by reference to his Base Salary as in effect on the day immediately
prior to his termination date.
(b) During
the period the Executive is receiving payments of either regular compensation or
disability insurance described in this Agreement and to the extent reasonable
considering the Executive's disability, the Executive will furnish information
and assistance to the Company and from time to time will make themselves
available to the Company to undertake assignments consistent with their prior
position with the Company. If the Company fails to make a payment or
provide a benefit required as part of the Agreement, the Executive's obligation
to furnish information and assistance will end.
(c) For
purposes of this Agreement, the Executive will be considered to be “disabled” if
he satisfies the requirements necessary to receive benefits under the Company’s
long-term disability plan or, in the absence of any such plan, under any
insurance policy providing benefits for long-term disabilities that is procured
for the Executive pursuant to this Agreement or otherwise.
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7. Death. In
the event of the death of the Executive during the Period of Employment, the
Company's obligation to make payments under this Agreement shall cease as of the
date of death, except for earned but unpaid Base Salary.
8. Effect of Termination of
Employment.
(a) If the Executive's
employment terminates due to a Without Cause Termination, as defined below, the
Company will provide the Executive nine (9) months' Base Salary as in effect at
the time of the termination plus an appropriately prorated amount of the
previous year’s cash bonus on the Company’s regular payroll dates for such Base
Salary or cash bonus. Additionally, the benefits and perquisites described in
this Agreement as in effect at the date of termination of employment will be
continued for nine (9) months to the extent permissible under the law and
consistent with the tax status of such benefit plans. Amounts
that the Company is obligated to pay hereunder, including amounts paid by the
Company to third parties to maintain benefit and perquisites, shall be less any
amount the Executive receives from a third party for services provided as an
employee, consultant, agent or the like, including any cash or non-cash
consideration such as stock or stock options. Subject to
Section 12 below, the salary continuation payments described in this Section 8
will commence within fourteen (14) days of the Company’s receipt of the
Executive’s executed general release of claims under Section 8(b) of this
Agreement, and to the extent permissible under Section 12 below, such salary
continuation payments shall be made retroactive back to the date the Executive’s
employment with the Company terminates.
(b) All
severance compensation provided for herein shall be expressly conditioned upon
the Executive’s execution, delivery, and non-revocation of a general release of
claims in the form set forth as Exhibit A, hereto. All
severance compensation provided for herein shall be further expressly
conditioned upon the Executive complying with all post-employment obligations
set forth herein and set forth in the Indemnification Agreement and the
Confidential Information and Inventions Agreement.
(c) If
the Executive's employment terminates due to Termination for Cause (as defined
below), breach of this Agreement by Executive or resignation by Executive,
earned but unpaid Base Salary will be paid on a pro-rated basis for the year in
which the termination occurs. No other payments will be made or
benefits provided by the Company.
(d) For
this Agreement, the following terms have the following meanings:
(i) “Termination
for Cause” means termination of the Executive's employment by the Company's
Chief Executive Officer or Board of Directors acting in good faith by the
Company by written notice to the Executive specifying the event relied upon for
such termination, due to the Executive's willful misconduct with respect to
their duties under this Agreement, including but not limited to conviction for a
felony or a common law fraud that results in or is likely to result in economic
damage to the Company.
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(ii) “Without
Cause Termination” means “constructive termination” or actual termination of the
Executive's employment other than due to death, disability, Termination for
Cause, or resignation by Executive. Constructive Termination shall
occur upon Employee’s resignation as a result of either of the following trigger
events: (A) a significant change to job scope or job responsibilities, (B) a
relocation of Company headquarters of more than 50 miles, or (C) the expiration
of this Agreement in the absence of a renewal, extension, or superseding
Agreement; provided that the Executive gives the Company notice of such
Constructive Termination within ninety (90) days of such trigger event, and the
Company fails to cure such trigger event within thirty (30) days of such notice
of Constructive Termination and such resignation is effective within sixty (60)
days of expiration of the Company’s thirty (30) day cure period.
9. Other Duties of the
Executive during and after the Period of Employment.
(a) The
Executive will, with reasonable notice during or after the Period of Employment,
furnish information as may be in their possession and cooperate with the Company
as may reasonably be requested in connection with any claims or legal actions in
which the Company is or may become a party.
(b) The
Executive recognizes and acknowledges that all non-public information pertaining
to the affairs, business, clients, customers or other relationships of the
Company is confidential and is a unique and valuable asset of the
Company. Access to and knowledge of this information are essential to
the performance of the Executive's duties under this Agreement. The
Executive will not during the Period of Employment and for 36 months thereafter
except to the extent reasonably necessary in performance of the duties under
this Agreement, or as required by law, give to any person, firm, association,
corporation or governmental agency any non-public information, including but not
limited to information relating to the affairs, business, clients, customers,
technology or other relationships of the Company and any Confidential
Information as that term is defined in the Confident Information and Inventions
Agreement. The Executive will not make use of such information for
his own purposes or for the benefit of any person or organization other than the
Company. All records, memoranda, etc., relating to the business of
the Company, whether made by the Executive or otherwise coming into his
possession, are confidential and will remain the property of the
Company. Confidential information shall not include information that
(i) becomes generally available to the public other than as a result of
disclosure by the Executive, (ii) was available to the Executive on a
non-confidential basis prior to disclosure to the Executive in connection with
his duties to the Company, provided that the source of such information is not
known to the Executive to be bound by a confidentiality agreement or other
contractual obligation of confidentiality to the Company or (iii) becomes
available to the Executive on a non-confidential basis from a source other than
the Company (or any agent, employee or affiliate of Company) provided such
source is not known to the Executive to be bound by a confidentiality agreement
or other contractual obligation of confidentiality to the
Company.
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(c) During
the Period of Employment, the Executive will not use his status with the Company
to obtain loans, goods or services from another organization on terms that would
not be available to him in the absence of his relationship to the
Company. During the period of his employment and for a period of 12
months thereafter, the Executive will not directly or indirectly manage, consult
or work for, serve as employee, officer, director, consultant, agent or
subcontractor for, finance, or own any part of or exercise management control
over any business or entity wherein the Executive is directly or indirectly
engaged in the development and/or commercialization of a Competitive
Product. A “Competitive Product” shall mean any product that contains
recombinant platelet-derived growth factor, recombinant insulin-like growth
factor, or any recombinant osteoinductive protein, including bone morphogenetic
proteins, or any product containing any other protein intended to be used for
tissue repair or regeneration. In addition, during such 12 month
period Executive will not engage, directly or indirectly, in any business
activity or enterprise which is a “Competitive Activity”. For
purposes hereof, “Competitive Activity” means the making of investments in or
the provision of capital to any enterprise (or an Affiliate), or to any person
in connection with any enterprise (or an Affiliate thereof), with respect in
which the Company has invested or provided capital or proposed, in writing, to
invest or provide capital during the term of the Executive's employment, or to
pursue any similar investment opportunity with any individual or enterprise
introduced to the Executive or Company directly in connection with the
performance of the Executive's duties to the Company during the term of his
employment, in each case in the area of tissue repair or
regeneration. For purposes of this restriction, the receipt of stock,
stock options or restricted stock for any reason (including as consideration for
services or otherwise) shall be deemed an investment in the issuing company or
any Affiliates thereof. This restriction shall not apply to any
investment opportunity that has been declined by the
Company. “Affiliate” shall mean any company, corporation, business or
entity that is controlled by, controlling, or under common control with a
company. The Executive acknowledges that the covenants contained
herein are reasonable as to geographic and temporal scope. For a
twelve month period after termination of the Period of Employment for any
reason, the Executive will not solicit to hire any employee of the Company or
solicit any employee to leave the employ of the Company.
(d) After
the Period of Employment, upon reasonable notice the Executive shall provide the
Company with sufficient information to verify compliance with his
post-employment obligations hereunder, including providing periodic reports
detailing any compensation received from another party during the severance
period outlined above, and promptly responding to specific requests from the
Company regarding possible violations of any restrictive covenant hereunder or
under any other agreement with the Company.
(e) The
Executive acknowledges that the breach or threatened or attempted breach of any
provision of Section 9 would cause irreparable harm to the Company not
compensable in monetary damages and that the Company shall be entitled, in
addition to all other applicable remedies, to a temporary and permanent
injunction and a decree for specific performance of the terms of Section 9
without being required to prove damages or furnish any bond or other
security.
(f) The
Executive shall not be bound by the provisions of Section 9 in the event of the
default by the Company in its obligations under this Agreement that are to be
performed upon or after termination of this Agreement, provided that such
default is not cured by the Company within sixty (60) days of the Company’s
receipt from the Executive of a written notice of default.
(g) For
purposes of Section 9, the “Company” shall include any person or entity that,
directly or indirectly, controls or is controlled by the Company or is under
common control with the Company.
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10. Indemnification;
Litigation.
The
Executive and the Company previously entered into the Indemnification Agreement
under which the Company has agreed to indemnify the Executive from and against
certain liability associated with his providing services as an executive of the
Company. The parties hereby reaffirm the Indemnification Agreement,
which shall remain effective together with this Employment
Agreement. In the event of a conflict between this Agreement and the
Indemnification Agreement, the Indemnification Agreement shall supersede this
Agreement.
11. Effect of Change in
Control.
(a) In
the event there is a Change in Control (as defined below) and within the twelve
(12) month period following such event Executive is terminated in a Without
Cause Termination, or Executive elects to resign upon written notice to the
Company following an event that constitutes Good Reason (as defined below), all
outstanding stock options, restricted stock, restricted stock units, and any
other unvested equity incentives shall become fully exercisable and vested as of
the Date of such Change of Control and shall remain exercisable for their stated
terms. In addition, the Company shall pay Executive upon such
termination or resignation, in exchange for the Executive complying with the
obligations and restriction set forth or referred to in Section 8, the severance
payments and benefits due under Section eight (8)(a) above with respect to a
Without Cause Termination, but such payments and benefits shall be provided for
a period of twelve (12) months following termination or resignation pursuant to
this Section.
(b) A “Change in Control” shall be
deemed to have occurred if (i) a tender offer shall be made and consummated for
the ownership of more than fifty percent (50%) of the outstanding voting
securities of the Company, (ii) the Company shall be merged or consolidated with
another corporation or entity and as a result of such merger or consolidation
less than fifty percent (50%) of the outstanding voting securities of the
surviving or resulting corporation or entity shall be owned in the aggregate by
the former shareholders of the Company, as the same shall have existed
immediately prior to such merger or consolidation, (iii) the Company shall sell
all or substantially all of its assets to another corporation or entity which is
not a wholly-owned subsidiary, or (iv) a person, within the meaning of Section
3(a)(9) or of Section 13 (d)(3) (as in effect on the date hereof) of the
Securities and Exchange Act of 1934 (“Exchange Act”), shall acquire more than
fifty percent (50%) of the outstanding voting securities of the Company (whether
directly, indirectly, beneficially, or of record). For purposes
hereof, ownership of voting securities shall take into account and shall include
ownership as determined by applying the provisions of Rule 13d-3(d)(1)(i) (as in
effect on the date hereof) pursuant to the Exchange Act.
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(c) A resignation for “Good Reason”
shall be deemed to have occurred if the Executive resigns his employment with
the Company after the occurrence of any of the following events, to which the
Executive has not expressly consented in writing: (i) a material reduction in
the Executive’s Base Salary (other than one applicable to all senior
management); (ii) a material reduction in job duties, authority,
responsibilities and requirements inconsistent with the Executive’s position
with the Company and the Executive’s prior duties, authority, responsibilities,
and requirements or a change in the Executive’s reporting relationship; (iii) a
relocation of the Executive to a facility or location more than fifty (50) miles
from the address of the Company’s headquarters office as of the effective date
of this Agreement, or (iv) material breach by the Company of any of the material
covenants herein. Any of the foregoing conditions described in this
Section 11(c) will constitute “Good Reason” only if the Executive first delivers
a notice of termination to the Company identifying such condition (or
conditions) within ninety (90) days after the initial occurrence of such
condition (or conditions) and such condition continues uncured for a period of
thirty (30) days after the delivery of such notice of
termination. Notwithstanding the foregoing, the Executive’s
termination of employment will not be considered to be for Good Reason unless
the Company fails to cure such condition and such termination of employment
occurs within sixty (60) days of the expiration of the Company’s (30)
day cure period.
12. Tax
Provisions.
(a) Notwithstanding
any other provision of this Agreement whatsoever, the Company shall have the
right, after consulting with and securing the approval of the Executive (which
approval shall not unreasonably be withheld), to provide for the application and
effects of Section 409A of the Internal Revenue Code of 1986, as amended (the
“Code”) (relating to deferred compensation arrangements) and any related
regulatory or administrative guidance issued by the Internal Revenue Service
such that the severance and other benefits provided under this Agreement shall
not trigger the additional tax, interest, and any related penalties imposed by
Code Section 409A(l)(B). Although the Company intends to administer
the Agreement so that it will comply with the requirements of Code Section 409A,
the Company does not represent or warrant that the Agreement will comply with
Code Section 409A or any other provision of federal, state, local or non-United
States law. Neither the Company, its subsidiaries, nor their
respective directors, officers, employees or advisers will be liable to the
Executive (or any other individual claiming a benefit through the Executive) for
any tax, interest, or penalties the Executive may owe as a result of
compensation paid under the Agreement, and the Company and its subsidiaries will
have no obligation to indemnify or otherwise protect the Executive from the
obligation to pay any taxes pursuant to Code Section 409A.
(b) The
Company shall delay the payment of any severance benefits payable under this
Agreement as required to comply with Code Section 409A(a)(2)(B)(i) (relating to
payments made to certain “specified employees” of certain publicly-traded
companies) and in such event, any such amount to which the Executive would
otherwise be entitled during the six (6) month period immediately following his
termination of employment shall instead be accumulated through and paid or
provided on the first business day following the expiration of such six (6)
month period, or if earlier, the date of his death. For the avoidance
of doubt, no portion of any such severance benefits shall
be subject to the foregoing delay if and to the extent that such benefits (i)
constitute a “short term deferral” within the meaning of Section 1.409A-1(a)(4)
of the Treasury Regulations, or (ii) (A) are being paid due to the Executive’s
“involuntary separation from service” (within the meaning of Section 1.409A-1(n)
of the Treasury Regulations); (B) do not exceed two times the lesser of (1) the
Executive’s annualized compensation from the Company for the calendar year prior
to the calendar year in which the termination occurs, or (2) the maximum amount
that may be taken into account under a qualified plan pursuant to Code Section
401(a)(17) for the year in which the Executive’s employment terminates; and (C)
the payment is required under this Agreement to be paid no later than the last
day of the second (2nd) calendar year following the calendar year during which
the Executive’s “separation from service” (within the meaning of Code Section
409A) occurs. For purposes of Code Section 409A, the Executive’s
right to receive installment payments pursuant to any provision in this
Agreement shall be treated as a right to receive a series of separate and
distinct payments. The determination of whether the Executive is a
“specified employee” for purposes of Code Section 409A(a)(2)(B)(i) as of the
time of his termination of employment shall made by the Company in accordance
with the terms of Code Section 409A and the applicable guidance thereunder
(including without limitation Treasury Regulation Section 1.409A-1(i) and any
successor provision thereto).
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(c) The
continued employee benefits available under Sections 8 and 11 above that are
taxable benefits (and that are not disability pay or death benefit plans within
the meaning of Code Section 409A) are intended to comply, to the maximum extent
possible, with the exception to Code Section 409A set forth in Section
1.409A-1(b)(9)(v) of the Treasury Regulations (and any successor
thereto). To the extent that any of those benefits either do not
qualify for that exception, or are provided beyond the applicable time periods
set forth in Section 1.409A-1(b)(9)(v) of the Treasury Regulations, then such
amounts will be reimbursed or provided no later than December 31 of the year
following the year in which the expense was incurred and will be subject to the
following additional rules: (i) the amount of in-kind benefits
provided, during any calendar year shall not affect the amount of in-kind
benefits to be provided, during any other calendar year; and (ii) the right to
in-kind benefits shall not be subject to liquidation or exchange for another
benefit.
(d) For
the avoidance of doubt, no amount subject to the requirements of Code Section
409A shall become payable to the Executive as a result of a termination of
employment that does not constitute a “separation from service” within the
meaning of Code Section 409A(a)(2)(A)(i) and Section 1.409A-1(h) of the Treasury
Regulations.
13. Consolidation; Merger or
Sale of Assets. Nothing in this Agreement shall preclude the
Company from consolidating or merging into or with, or transferring all or
substantially all of its assets to, another corporation that assumes this
Agreement and all obligations and undertakings of the Company
hereunder. Upon such a consolidation, merger or sale of assets, the
term “the Company” as used will mean the other corporation and this Agreement
shall continue in full force and effect.
14. Modification. This
Agreement may not be modified or amended except in writing signed by the
parties. No term or condition of this Agreement will be deemed to
have been waived, except in writing by the party charged with
waiver. A waiver shall operate only as to the specific term or
condition waived and will not constitute a waiver for the future or act on
anything other than that which is specifically waived.
15. Governing
Law. This Agreement has been executed and delivered in the
State of Tennessee and its validity, interpretation, performance and enforcement
shall be governed by the laws of that state.
16. Notices. All
notices, requests, consents and other communications hereunder shall be in
writing and shall be deemed to have been made when delivered or mailed
first-class postage prepaid by registered mail, return receipt requested, or
when delivered if by hand, overnight delivery service or confirmed facsimile
transmission, to the following:
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(a) If
to the Company, to:
Chief
Executive Officer
000
Xxxxxx Xxxx Xxxx
Xxxxxxxx,
XX 00000
with a
copy to:
Xxxx
Manner
Xxxxxxx
Xxxxxx Xxxx Xxxxxxx & Manner, P.C.
000
Xxxxxxxxx Xxxxxx Xxxxx 0000
Xxxxxxxxx,
Xxxxxxxxx 00000-0000
or at
such other address as may have been furnished to the Executive by the Company in
writing; or
(b) If
to the Executive, at: 0000 X Xxxxxxxx Xxxxx, Xxxxxxxxx,
XX 00000, or such other address as may have been furnished to the
Company by the Executive in writing.
17. Entire Agreement.
This Agreement, together with the Indemnification Agreement and the previously
executed Confidential Information and Inventions Agreement constitute the entire
agreement between the Parties as to the subject matter hereof, and all prior
negotiations, representations, agreements and understandings are merged into,
extinguished by and completely expressed by this Agreement. In the
event of a conflict between this Agreement and the Confidential Information and
Inventions Agreement, this Agreement shall supersede the Confidential
Information and Inventions Agreement. In the event of a conflict
between this Agreement and the Indemnification Agreement, the Indemnification
Agreement shall supersede this Agreement.
18. Binding
Agreement. This Agreement shall be binding on the parties'
successors, heirs and assigns.
IN
WITNESS WHEREOF, the undersigned have executed this Agreement on the 17th day of
July 2009.
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XXXX
XXXXXXX
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By:
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Xxxxxx
X. Xxxxx
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President
and Chief Executive
Officer
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