April 15, 2019
Exhibit 10.2
April
15, 2019
Dear
Xxxxxx:
ENDRA
Life Sciences Inc. (the “Company”) is pleased to offer
you employment on the following terms:
1. Position. Your title will be Chief
Commercial Officer of the Company, and you will report directly to
the Chief Executive Officer of the Company. This is a full-time
position. While you render services to the Company, you will not
engage in any other employment, consulting or other business
activity (whether full-time or part-time) that would create a
conflict of interest with the Company. By signing this letter
agreement, you confirm to the Company that you have no contractual
commitments or other legal obligations that would prohibit you from
performing your duties for the Company, and that on the Effective
Date you will have relinquished control of and involvement in any
other business operations.
2. Term.
Subject to the remaining provisions of this paragraph, this letter
agreement will be for an initial term that begins as of May 28,
2019 (the “Effective Date”) and continues in effect
through the second (2nd) anniversary of the Effective Date (the
“Initial Term”) and, unless terminated sooner, will
continue on a year-to-year basis after the Initial Term (each year,
a “Renewal Term”). If either party elects not to renew
this letter agreement, that party must give a written notice of
termination to the other party at least 180 days before the
expiration of the then-current Initial Term or Renewal Term. If one
party provides the other with a notice of termination, no further
automatic extensions will occur and this letter agreement will
terminate at the end of the then-existing Initial Term or Renewal
Term, and such termination will not result in any entitlement to
compensation pursuant to Section 9 below or
otherwise.
3. Cash Compensation.
(a) On or prior to the
first Company payroll date following the Effective Date, the
Company will pay you a one-time signing bonus of $10,000 in cash,
subject to applicable deductions and withholdings. You acknowledge
and agree that the payment of this signing bonus serves as
consideration for the noncompetition covenant in Section 3.3.1 of
the Confidential Information, Assignment of Inventions,
Non-Competition and Non-Solicitation Agreement between you and the
Company set forth at Exhibit
A.
(b) The Company will
pay you a base salary at an
initial monthly rate of 20,833.33 (which equates to an annual rate
of $250,000), in accordance with the Company’s
standard payroll schedule and subject to applicable deductions and
withholdings. This salary will be subject to periodic review and
adjustments at the Board’s discretion. In addition, you will
be eligible to receive an annual bonus to be paid based on
attainment of Company and individual performance objectives to be
established annually by the Board. With respect to 2019, the annual
bonus target to be paid if all goals are achieved will be a cash
payment equal to 30% of your base salary earned in 2019
and will be based on the
realization of milestones determined and approved by the Board.
4. Employee Benefits. As a regular employee
of the Company, you will be eligible to participate in a number of
Company-sponsored benefits. You will receive 15 days of paid time
off (PTO) per calendar year, in accordance with Company policy in
effect from time to time and in compliance with applicable state
law. Without limiting the generality of the foregoing, while you
are an employee of the Company, the Company will provide you life
insurance, with you to designate the beneficiary thereunder, in an
amount equal to your base salary as in effect on the Effective Date
and as in effect on the first business day of each calendar year
thereafter. You will also be eligible to participate in a long-term
disability insurance plan sponsored by the Company.
5. Stock Option.
(a) Number of Shares. On your first date of
employment with the Company, you will be granted an Option to
purchase 35,000 shares of the Company’s common stock (the
“Stock Option”).
(b) Plan Terms Control. The Stock Option
will be subject to the terms and conditions applicable to Options
granted under the Plan, as described in the Plan and the applicable
Award Agreement.
(c) Scheduled Vesting. The Stock Option will
vest as described in the applicable Award Agreement.
(d) Accelerated Vesting. If your Separation
from Service is the result of an involuntary discharge by the
Company that is without Cause and is not the result of your death
or Disability, then any unvested shares subject to the Stock Option
will vest immediately upon such Separation from Service; provided
you agree that you will not sell more than one-third of such shares
in any 90 day period.
(e) Accelerated Vesting upon Change in
Control. If your Separation from Service is the result of an
involuntary discharge by the Company that is without Cause, and is
not the result of your death or Disability, and is within 12 months
following a Change in Control, then the Stock Option will vest
immediately upon such Separation from Service.
(f) Forfeiture of Unvested Options. If your
Separation from Service is for any reason other than an involuntary
discharge by the Company that is without Cause, the unvested
portion of the Stock Option will immediately
terminate.
(g) Separation from Service for Cause. If
your Separation from Service is for Cause, the unvested and vested
portion of the Stock Option will immediately
terminate.
(h) Exercise Period following Separation from
Service. Following your Separation from Service for any
reason other than Cause, the vested potion of the Stock Option will
remain exercisable for one year (by you or your beneficiaries in
the event of your death), subject to any outer limits contained in
the Company’s 2016 Omnibus Stock Incentive Plan, as amended
(the “Plan”) or the applicable Award
Agreement.
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6. Confidential Information, Assignment of
Inventions, and Non-Solicitation Agreement. You will be
required, as a condition of your employment with the Company, to
sign (or re-sign) the Company’s Confidential Information,
Assignment of Inventions, Non-Competition and Non-Solicitation
Agreement, a copy of which is attached hereto as Exhibit A.
7. Time and Place of Employment; Travel. It
is acknowledged that your regular workplace will not be the
Company’s offices in Ann Arbor, Michigan and instead will be
in the state of Massachusetts; however, the Company requires that
you work at least five business days per month out of the
Company’s offices in Ann Arbor, Michigan; provided that this
requirement may be waived for any given month by the CEO in writing
(email acceptable) should other Company business travel interfere
with your ability to be present in Xxx Arbor. The Company will pay
or reimburse your reasonable travel for business on the
Company’s behalf from your home in Massachusetts, lodging,
meal and related incidental costs, consistent with the
Company’s travel policies in effect from time to time. The
Company requires presentation of receipts or an itemized accounting
prior to making any reimbursements under this
paragraph.
8. Employment Relationship. Your employment
with the Company is “at will,” meaning that either you
or the Company may terminate your employment at any time and for
any reason, with or without cause. Any contrary representations
that may have been made to you are superseded by this letter
agreement. This is the full and complete agreement between you and
the Company on this term. Although your job duties, title,
compensation and benefits, as well as the Company’s personnel
policies and procedures, may change from time to time, the
“at will” nature of your employment may only be changed
in an express written agreement signed by you and a duly authorized
officer of the Company (other than you).
9. Certain Payments upon Termination. If
you are terminated by the Company without Cause, then, contingent
upon your execution, delivery and non-revocation of a release in
form and substance satisfactory to the Company and consistent with
the Company’s standard release agreement, which contains a
full release of all claims against the Company and certain other
provisions (the “Release Agreement”), including a
reaffirmation of the covenants in your Confidential Information,
Assignment of Inventions, and Non-Solicitation Agreement, you will
be entitled to (i) 8 months’ (or 24 months’ if such
termination occurs within one year following a Change in Control)
continuation of your current base salary and (ii) a lump sum
payment equal to 8 months (or 24 months if such termination occurs
within one year following a Change in Control) of COBRA premiums
based on the terms of Company’s group health plan and your
coverage under such plan as of the date of your Separation from
Service (regardless of any COBRA election actually made by you or
the actual COBRA coverage period under the Company’s group
health plan). The Company’s obligations under this paragraph
are subject to the requirements and time periods set forth in this
paragraph and in the Release Agreement. Prior to receiving the
payments described in this paragraph, you must execute the Release
Agreement on or before the date 21 days (or such longer period to
the extent required by law) after your Separation from Service. If
you fail to timely execute and remit the Release Agreement, you
waive any right to the payments provided under this paragraph.
Payments under this paragraph will commence within 15 days of your
execution and delivery of the Release Agreement, provided that you
do not revoke the Release Agreement and allow it to become
effective in accordance with its terms. Your rights following a
Separation from Service under the terms of any Company plan,
whether tax-qualified or not, that are not specifically addressed
in this letter agreement, will be subject to the terms of such
plan, and this letter agreement will have no effect upon such terms
except as specifically provided herein. Except as specifically
provided in this paragraph, you will not have any further rights to
compensation under this letter agreement following your Separation
from Service.
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10. Removal from any Boards and Positions.
Unless you and the Company agree otherwise at the time of your
Separation from Service, upon your Separation from Service, you
will be deemed to resign (a) if a member, from the Board and the
board of directors of any affiliate and any other board to which
you have been appointed or nominated by or on behalf of the Company
or an affiliate, (b) from each position with the Company and any
affiliate, including as an officer of the Company or an affiliate
and (c) as a fiduciary of any employee benefit plan of the Company
and any affiliate.
11. Tax Matters.
(a) Withholding. All forms of compensation
referred to in this letter agreement are subject to reduction to
reflect applicable withholding and payroll taxes and other
deductions required by law.
(b) Tax Advice. You are encouraged to obtain
your own tax advice regarding your compensation from the Company.
You agree that the Company does not have a duty to design its
compensation policies in a manner that minimizes your tax
liabilities.
12. Confidentiality. You and the Company
have entered into a Confidential Information, Assignment of
Inventions, and Non-Solicitation Agreement. In addition to the
terms of that agreement, you agree that the terms and conditions of
this letter agreement are strictly confidential and, with the
exception of your legal counsel, tax advisor, immediate family or
as required by applicable law, have not and will not be disclosed,
discussed or revealed to any other persons, entities or
organizations, whether within or outside the Company, without prior
written approval of the Company. For avoidance of doubt, you may
not utilize the terms of this letter agreement to seek employment
with another party.
13. Interpretation, Amendment and
Enforcement. This letter agreement and Exhibit A hereto constitute the
complete agreement between you and the Company, contain all of the
terms of your continued employment with the Company and supersede
any prior agreements, representations or understandings (whether
written, oral or implied) between you and the Company. This letter
agreement may not be amended or modified, except by an express
written agreement signed by both you and a duly authorized officer
of the Company. The terms of this letter agreement and the
resolution of any disputes as to the meaning, effect, performance
or validity of this letter agreement or arising out of, related to,
or in any way connected with, this letter agreement, your
employment with the Company or any other relationship between you
and the Company will be governed by Massachusetts law, excluding
laws relating to conflicts or choice of law. Capitalized terms used
and not defined herein have the meanings ascribed thereto in the
Plan.
14. Section 409A. It is intended that this
letter agreement comply with Section 409A of the Internal Revenue
Code of 1986 (“Section 409A”), to the extent
applicable. This letter agreement will be administered in a manner
consistent with this intent, and any provision that would cause
this letter agreement to fail to satisfy Section 409A will have no
force or effect until amended to comply with Section 409A.
Notwithstanding anything in this letter agreement to the contrary,
in the event any payment or benefit hereunder is determined to
constitute nonqualified deferred compensation subject to Section
409A, then to the extent necessary to comply with Section 409A,
such payment or benefit will not be made, provided or commenced
until six months after your Separation from Service. For purposes
of Section 409A, the right to a series of installment payments will
be treated as a right to a series of separate payments.
Notwithstanding anything in this letter agreement to the contrary,
to the extent required in order to avoid accelerated taxation
and/or additional taxes under Section 409A, amounts reimbursable to
you under this letter agreement will be paid to you on or before
the last day of the year following the year in which the expense
was incurred and the amount of expenses eligible for reimbursement
(and in-kind benefits provided to you) during any one year may not
effect amounts reimbursable or provided in any subsequent
year.
* * * *
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You may
indicate your agreement with the terms of this letter agreement by
signing and dating both the enclosed duplicate original of this
letter agreement and the enclosed Confidential Information,
Assignment of Inventions, and Non-Solicitation Agreement and
returning them to me.
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Very
truly yours,
/s/ Xxxxxxxx
Xxxxxxxx
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I have
read and accept this employment letter agreement:
/s/ Xxxxxx
Xxxxxxxxx
Signature of Xxxxxx
Xxxxxxxxx
Dated: April 20,
2019
Attachment
Exhibit
A: Confidential Information, Assignment of Inventions,
Non-Competition and Non-Solicitation Agreement
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