Employment Agreement
Exhibit
10.139
DRAFT
DATED JULY 31, 2007
EMPLOYMENT
AGREEMENT, effective
as of August 1, 2007, between Vyteris, Inc. (f/k/a Vyteris Holdings (Nevada),
Inc.), a Nevada corporation
(the “Company”),
and
Xxxxxxx X. Xxxxxxxxxxx (“Employee”).
WHEREAS,
the Company desires to employ Employee as Chief Financial Officer and principal
accounting officer; and
WHEREAS,
Employee is willing to accept such employment on the terms set forth
herein,
NOW,
THEREFORE, the Company and Employee hereby agree as follows:
1. Employment.
1.1 General.
The
Company hereby agrees to employ Employee in the capacity of Chief Financial
Officer and principal accounting officer, and Employee hereby accepts such
employment, upon the terms and subject to the conditions herein contained;
provided, however, that the Employee shall not assume the responsibilities
of
Chief Financial Officer and principal accounting officer for the purposes
of the
Company’s filings to be made with the Securities and Exchange Commission until
August 15, 2007 (and until such time, Xxxxxx Xxxx shall remain as the Company’s
principal accounting officer).
1.2 Duties
and Authority.
During
the term of Employee’s employment hereunder, Employee shall serve as the Chief
Financial Officer and principal accounting officer of the Company and shall
have
such responsibilities, duties and authority as may, from time to time, be
assigned to him by the Company’s Chief Executive Officer and Board of Directors
(the “Board”).
During the term of this Agreement, Employee shall serve the Company, faithfully
and to the best of Employee’s ability, and shall devote substantially all of
Employee’s business time and efforts to the business and affairs of the Company
(including its subsidiaries and affiliates) and the promotion of its interests.
Employee shall be available to the Company at such times and places as the
Company shall reasonably request during the term hereof. Notwithstanding
the
foregoing, Employee shall be entitled to pursue charitable and religious
endeavors and to participate in professional organizations, provided that
such
activities do not interfere in any material respect with the performance
by
Employee of his duties hereunder.
2. Term
of Employment.
The
term
of this Agreement shall commence as of August 1, 2007, and shall continue
through July 31, 2008. Thereafter, the term of this Agreement shall be
automatically extended for successive and additional one-year periods, unless
Employee or the Company shall provide a written notice of termination at
least
ninety (90) days prior to the end of the initial term or any
extended term, as applicable. The term of this Agreement is subject to early
termination in accordance with the provisions set forth in Section
4
hereof.
The election by the Company or Employee to terminate this Agreement as of
the
expiration of the initial term, or as of the end of any one-year renewal
period,
as provided in this Section 2 shall not be deemed to be a termination by
the
Company under Sections 4.1.2
or
4.1.3
hereof
or by Employee with Good Reason (as defined below), and in such event Employee
shall only be entitled to the compensation set forth in Section
4.2.3
hereof
3. Compensation
and Benefits.
3.1 Salary.
During the
first
twelve months of the term of this Agreement, the Company shall pay to Employee
a
base salary at the annual rate of $-------265,000. On
each
anniversary date of the commencement of employment, the Employee’s base salary
shall be reviewed by the Board (or the compensation committee thereof (the
“Compensation
Committee”))
and
may be increased to such rate as the Board (or the Compensation Committee),
in
its sole discretion, may hereafter from time to time determine. The salary
payable pursuant to this Section
3.1
shall be
payable on a bi-weekly basis and is referred to herein as the “Base
Salary”.
3.2 Expenses.
Employee shall be entitled to receive proper reimbursement from the Company
for
all reasonable out-of-pocket expenses incurred by Employee in performing
services under this Agreement, according to the Company’s expense account and
reimbursement policies and provided that Employee shall submit reasonable
documentation with respect to such expenses.
3.4 Bonus.
(a) During
the term of this Agreement, Employee shall be entitled to receive an annual
year-end target “Variable Bonus” in cash in an amount equal to up to forty
percent (40%) of Base Salary (pro-rated for calendar year 2007).
(b) Half
of
the Variable Bonus will be based upon successfully realizing the personal
and
performance objectives as determined by the Chief Executive Officer and the
Compensation Committee, which for the first year of employment are defined
in
Exhibit
A-I
attached
to this Agreement (the “A-I
Objectives”).
(c) Half
of
the Variable Bonus for the first year, and all of the Variable Bonus for
any
periods after the first year of employment, will be based upon successfully
realizing the “KRA objectives” for each year as determined by the Company’s
Chief Executive Officer and the Compensation Committee each year, and which
are
defined in Exhibit
A-II
attached
to this Agreement for the first year of employment.
(d) The
Variable Bonus, if any, shall be payable within ninety (90) days after the
last
day of the year in which it is earned, notwithstanding any termination of
this
Agreement on or after the last day of such year. Qualification for the Variable
Bonus payout shall be determined by the Board.
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3.5 Stock
Options.
3.5.1 The Company hereby grants to the Employee options to purchase 750,000
shares of the Company’s common stock, vesting as described on Exhibit
B.
3.5.2 The options shall be issued pursuant to the Company’s 2005 Stock Option
Plan; shall only be issued if approved by the Compensation Committee prior
to
grant; have an exercise price equal to the fair market value of one share
of the
Company’s common stock as determined by the Compensation Committee upon grant;
and shall become fully vested and exercisable upon the sale of all or
substantially all of the assets of the Company, the sale of all of the capital
stock of the Company by the Company’s stockholders to a third party, or the
merger or consolidation of the Company with another corporation or other
entity
(other than a merger or consolidation in which the owners of the Company’s
capital stock immediately prior to the merger or consolidation own at least
35%
of the capital stock of the surviving corporation or other entity in the
merger
or consolidation).
3.5.3 The
Compensation Committee shall consider an additional grant of stock options
no
less than once each year (by March 31st
of each
year commencing in 2008) (and shall target the grant of at least 750,000
options
(as adjusted for stock splits or stock combinations) each year).
3.6 Other
Benefits.
Employee
shall be entitled to the following additional benefits:
3.6.1 Employee
shall be entitled to vacations, at such times as Employee shall reasonably
determine, of at least four weeks each year of employment
hereunder.
3.6.2 Employee
shall be entitled to such other benefits as shall be extended to any other
senior executive officer of the Company during the initial term and any renewal
period of this Agreement.
3.7 No
Other Benefits.
During
the term of this Agreement or upon any termination hereof, the Company shall
have no obligation to pay or provide, any compensation or benefits other
than as
set forth herein; provided,
however,
that
Employee shall be entitled to all benefits available to senior Employees
of the
Company under the employee benefit plans, and the policies and practices,
of the
Company, determined in accordance with the applicable terms and provisions
of
such plans, policies and practices, in each case, as accrued to the date
of
termination of employment.
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4.0 Termination
of Employment.
4.1 Events
of Termination.
Employee’s
employment hereunder shall terminate prior to the expiration of the term
set
forth in Section
2
hereof
upon the occurrence of any one or more of the following events:
4.1.1 Death.
In
the
event of Employee’s death, Employee’s employment shall terminate on the date of
death.
4.1.2 Termination
by the Company for Cause.
The
Company may,
at
its option, terminate the Employee’s employment for “Cause” (as defined herein).
For purposes hereof, “Cause”
shall
mean Employee’s (i) conviction of, guilty plea to or confession of guilt of a
felony, (ii) commission of fraudulent, illegal or dishonest acts, (iii) willful
misconduct or gross negligence which reasonably could be expected to be
materially injurious to the business, operations or reputation of the Company
(monetarily or otherwise) or (iv) after a written warning and a reasonable
opportunity to cure non-performance, failure to perform Employee’s material
duties as assigned to Employee pursuant to the terms of this Agreement from
time
to time or failure to cure any other material breach of this
Agreement.
4.1.3 Without
Cause By The Company.
The
Company may, at its option, terminate Employee’s employment for any reason
whatsoever (other than for Cause) by giving ninety (90) days prior written
notice of termination to Employee.
4.1.4 Termination
by Employee.
Employee
may terminate Employee’s employment for any reason whatsoever by giving ninety
(90) days prior notice of termination to the Company, except that Employee
may
terminate Employee’s employment for Good Reason by giving fifteen (15) days
prior notice of termination. Employee shall be deemed to have terminated
employment hereunder for “Good
Reason”
in
the
event that Employee terminates such employment after (i) the Company has
breached any of its material obligations hereunder and fails to cure such
breach
promptly after receipt of written notice of such breach, or (ii) a Change
in
Control (as defined herein). For purposes of this Agreement, the term
“Change
in Control”
shall
mean the occurrence of any of the following events with respect to the
Company:
(A) the
consummation of any consolidation or merger of the Company in which the Company
is not the continuing or surviving corporation or pursuant to which shares
of
the Company’s common stock (“Common
Stock”)
would
be converted into cash, securities or other property, other than a merger
of the
Company in which the holders of the shares of the Company’s Common Stock
immediately prior to the merger own at least a majority of the outstanding
common stock of the surviving corporation immediately after the merger;
or
(B) the
consummation of any sale, lease, exchange or other transfer (in one transaction
or a series of related transactions) of all, or substantially all, of the
assets
of the Company, other than to a subsidiary or affiliate.
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4.1.5 Disability.
In the
event of Employee’s Disability (as defined herein), the Company will have the
option to terminate Employee’s employment by giving a written notice of
termination to Employee. Such notice shall specify the date of termination,
which date shall not be earlier than sixty (60) days after such notice is
given.
For purposes of this Agreement, “Disability”
means
the inability of Employee to substantially perform Employee’s duties hereunder
for one hundred and thirty five (135) days out of two hundred and twenty
five
(225) consecutive days as a result of a physical or mental illness, all as
determined in good faith by the Board.
4.2 Company’s
Obligations Upon Termination.
Following
the termination
of Employee’s employment under the circumstances described below, the Company
shall pay to Employee the following compensation and provide the following
benefits in full satisfaction and final settlement of any and all claims
and
demands that Employee now has or hereafter may have under this
Agreement:
4.2.1 Termination
Without Cause by the Company or by the Employee with Good
Reason.
In
the
event that Employee’s employment shall be terminated by the Company pursuant to
Section
4.1.3
or shall
be terminated by the Employee for
Good Reason
pursuant
to Section
4.1.4,
(a) the
Company shall pay Employee all Base Salary,
any
Variable Bonus, earned but unpaid through the date of termination,
(b) the
Company shall pay Employee twelve (12) months
Base Salary then in effect on a monthly basis (provided,
however,
that if
such termination is effective before April 30, 2008, the number of months
of
Base Salary payable as severance pursuant to this clause (b) shall be equal
to
the number of full months that Employee was employed by the Company before
being
terminated (which would be less than nine (9) months), rather than twelve
(12)
months), (c) all stock options granted to Employee by the Company shall remain
exercisable for a period of one
hundred and eighty days after
such termination,
and (d)
a pro-rated target Variable Bonus for the year in which termination is
effective, subject to the terms of such bonus. In
addition, the Company shall reimburse Employee for any expenses incurred
through
the date of such termination in accordance with Section
3.3
hereof
4.2.2 Termination
by Employee Without Good Reason or by the Company for
Cause.
In
the
event that Employee’s employment shall be terminated by Employee without
Good Reason
pursuant
to Section
4.1.4
(or if
Employee voluntarily resigns other
than with Good Reason
in
accordance with such Section prior to the expiration of the then current
term of
this Agreement) or by the Company pursuant to Section
4.1.2,
Employee shall be entitled to no further compensation or other benefits under
this Agreement other than any Base Salary and any Variable Bonus earned on
or
prior to the date of such termination, but not yet paid, and such benefits
as
have accrued pursuant to any applicable employee benefit plans of the Company.
In addition, the Company shall reimburse Employee for any expenses incurred
through the date of such termination in accordance with Section
3.3
hereof
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4.2.3 Termination
upon Expiration of the
Employment Term.
Upon
expiration of the term of this Agreement, Employee shall be entitled to no
further compensation or other benefits under this Agreement other than Base
Salary earned, but unpaid, through the date of termination, and any Variable
Bonus earned on or prior to the end of such term, but not yet paid and such
benefits as have accrued pursuant to any applicable employee benefit plans
of
the Company. In addition, the Company shall reimburse Employee for any expenses
incurred through the date of such termination in accordance with Section
3.3
hereof.
4.2.4 Termination
Due to Death.
In
the
event that Employee’s employment shall be terminated by the Company pursuant to
Section
4.1.1,
the
Company shall pay Employee or Employee’s estate (a) all Base Salary earned but
unpaid through the date of termination, and (b) any
Variable
Bonus earned on or prior to the date of termination, but not yet paid. In
addition, the Company shall reimburse Employee for any expenses incurred
through
the date of termination in accordance with Section
3.3
hereof
4.2.5 Termination
Due to Disability.
In
the
event that Employee’s
employment shall be terminated by the Company pursuant to Section
4.1.5,
(a) the
Company shall pay Employee all Base Salary earned but unpaid through the
date of
termination, (b) any
Variable Bonus earned on or prior to the date of termination, but not yet
paid, and
(c)
the
Employee shall be entitled to all benefits under all employee benefit plans
in
which he is a participant. In addition, the Company shall reimburse Employee
for
any expenses incurred through the date of termination in accordance with
Section
3.3
hereof
4.3 Nature
of Payments.
All
amounts to be paid by the Company to Employee pursuant to this Section
4
(other
than Base Salary or reimbursement of expenses or amounts paid pursuant to
Section
4.2.4)
shall
be considered by the parties to be severance payments. In the event that
such
payments shall be treated as damages, it is expressly acknowledged by the
parties that damages to Employee for termination of employment would be
difficult to ascertain and the above amounts are reasonable estimates thereof
and are not a penalty.
4.4
Release.
Any
payments to be made or benefits to be provided by the Company pursuant to
this
Article
4
shall be
subject to the Company’s receipt from Employee of an effective general release
and agreement not to xxx, in a written form reasonably satisfactory to the
Company (the “Release”),
pursuant to which Employee makes limited customary representations and
warranties relating to the validity, enforceability and binding nature of
such
release and that Employee has the right to enter into and give such release
and
Employee agrees (i) to release all claims against the Company, its subsidiaries
and affiliates and related parties, (ii) not to maintain any action, suit,
claim
or proceeding against the Company and the officers, directors, and successors
thereof, solely with respect to the matters released, and (iii) to be bound
by
the confidentiality and mutual nondisparagement covenants specified therein.
Notwithstanding anything to the contrary contained herein, Employee’s release
shall expressly not apply to any claims Employee may have as a stockholder
or
option holder of the Company. Notwithstanding the due date of any payment
hereunder requiring a Release, the Company shall not be obligated to make
any
such payment until after the expiration of any revocation period applicable
to
the Release.
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5. Non-Solicitation:
Noncompetition.
5.1
During
the term of this Agreement and for a period of one year thereafter (following
termination for any reason, subject to the provisions of Section
5.2),
Employee
shall not:
5.1.1 induce
or
attempt to induce, directly or indirectly, any then current customer or client
of the Company to cease doing business, in whole or in part, with the Company
or
solicit or divert, directly or indirectly, the business of any such customer
or
client, or any identified potential customer or client, for Employee’s own
account or for the account of any other person or entity;
5.1.2 solicit
or induce, directly or indirectly, any person or entity, including any
third-party service provider, distributor or supplier of the Company, to
terminate its relationship with the Company or otherwise interfere with such
relationship;
5.1.3 for
Employee’s own account or for the account of any other person or entity,
solicit, interfere with or endeavor to cause, directly or indirectly, any
employee or agent of the Company or induce or attempt to induce, directly
or
indirectly, any employee or agent of the Company to leave employment or
terminate its agency with the Company or induce or attempt to induce, directly
or indirectly, any such employee or agent to breach an employment or agency
agreement or arrangement with the Company; or
5.1.4 except
with respect to a less than 5% passive ownership interest in a publicly traded
company, either
for Employee or on behalf of any person or entity, directly or indirectly
own,
control or participate in the ownership or control of, or be employed by
or on
behalf of, any business which is similar to and is competitive with the
business
(as it
exists or the date of termination)
of the
Company, within the United States of America or any country in which the
Company
then conducts or proposes to conduct business, without the express written
consent of the Company.
5.2 Notwithstanding
any
provision hereunder to the contrary, the provisions of Sections
5.1.1,
5.1.2
and
5.1.4
shall
not apply following the termination of Employee’s employment by the Company
without Cause pursuant to Section
4.1.3
or by
Employee for
Good Reason
pursuant
to Section
4.1.4.
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6. Property
Rights.
With
respect to information, inventions and discoveries developed, made or conceived
of by Employee, either alone or with others, at any time during Employee’s
employment by the Company and whether or not within working hours, arising
out
of such employment or pertinent to any field of business or research in which,
during such employment, the Company is engaged or (if such is known to or
ascertainable by Employee) is considering engaging, Employee
agrees:
6.1 that
all
such information, inventions and discoveries, whether or not patented or
patentable, shall be and remain the exclusive property of the
Company;
6.2 to
disclose promptly to an authorized representative of the Company all
such
information in Employee’s possession as to possible applications and uses
thereof;
6.3 not
to
file any patent application relating to any such invention or discovery except
with the prior written consent of an authorized officer of the
Company;
6.4 that
Employee hereby waives and releases any and all rights Employee may have
in and
to such information, inventions and discoveries and hereby assigns to the
Company and/or its nominees all of Employee’s right, title and interest in them,
and all Employee’s right, title and interest in any patent, patent application,
copyright or other property right based thereon. Employee hereby irrevocably
designates and appoints the Company and each of its duly authorized officers
and
agents as Employee’s agent and attorney-in-fact to act for Employee and in
Employee’s behalf and stead to execute and file any document and to do all other
lawfully permitted acts to further the prosecution, issuance and enforcement
of
any such patent, patent application, copyright or other property right with
the
same force and effect as if executed and delivered by Employee; and
6.5 at
the
request of the Company and without expense to Employee, to execute such
documents and perform such other acts as the Company deems necessary or
appropriate for the Company to obtain patents on such inventions in a
jurisdiction or jurisdictions designated by the Company, and to assign to
the
Company or its designee such inventions and any patent applications and patents
relating thereto.
7. Confidentiality.
With
respect to the information, inventions and discoveries referred to in
Section
6
hereof,
and also with respect to all other information, whatever its nature and form
and
whether obtained orally, by observation, from graphic materials or otherwise
(except such as is generally available to the public or such as Employee
shall
be compelled by legal process to disclose), obtained by Employee during or
as a
result of Employee’s employment by the Company and relating to any invention,
improvement, enhancement, product, know-how, formula, software, process,
apparatus, design, concept or other creation of the Company, or to any use
of
any of them, or to materials, tolerances, specifications, costs (including,
without limitation, manufacturing costs), prices, or any plans of the Company,
or to any other trade secret or proprietary information of the Company, Employee
agrees:
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7.1 to
hold
all such information, inventions and discoveries in strict confidence and
not to
publish or otherwise disclose any thereof to any person or entity other than
the
Company, except with the prior written consent of an authorized officer of
the
Company;
7.2 to
take
all reasonable precautions to assure that all such information, inventions
and
discoveries are properly protected from access by unauthorized
persons;
7.3 to
make
no use of nor exploit in any way any such information, invention or discovery
except as required in the performance of Employee’s employment duties for the
Company; and
7.4 upon
termination of Employee’s employment by the Company, or at any time upon request
of the Company, to deliver to it all graphic materials and all substances,
models, software, prototypes and the like containing or relating to any such
information, invention or discovery, all of which graphic materials and other
things shall be and remain the exclusive property of the Company.
For
purposes of this Agreement, the term “graphic materials” includes, without
limitation, letters, memoranda, reports, notes, notebooks, books of account,
drawings, prints, specifications, formulae software, data print-outs,
microfilms, magnetic tapes and disks and other documents and recordings,
together with all copies, excerpts and summaries thereof
8. No
Conflicts.
Employee agrees and acknowledges that Employee’s employment by the Company and
compliance with this Agreement do not and will not breach any agreement made
by
Employee to keep in confidence information acquired by Employee prior to
or
outside of Employee’s employment with the Company. Employee will comply with any
and all valid obligations which Employee may now have to prior employers
or to
others relating to confidential information, inventions or discoveries which
are
the property of those prior employers or others, as the case may be. Employee
has supplied or shall promptly supply to the Company upon its request a copy
of
each written agreement setting forth any such obligation. Employee hereby
agrees
and acknowledges that Employee has not brought and will not bring with Employee
for use in the performance of duties at the Company any materials, documents
or
information of a former employer or any third party that are not generally
available to the public, unless Employee has express written authorization
from
the owner thereof for possession and use or Employee otherwise has undisputed
proprietary rights to such material documents or information.
9. Specific
Performance.
Without
intending to limit the remedies available to the Company, Employee agrees
that
damages at law would be an inadequate remedy to the Company in the event
that
Employee shall breach or attempt to breach any of the provisions of Sections
5, 6, 7, 8
or
9
hereof
and that the Company may apply for and, without the posting of any bond or
other
security, upon proof of breach or threatened breach of any of the covenants
contained in such Sections, have injunctive relief in any court of competent
jurisdiction to restrain the breach or threatened breach of, or otherwise
to
enforce specifically, any of the covenants contained in such Sections. Such
injunctive relief in such court shall be available to the Company in lieu
of any
arbitration proceeding pursuant to Section
11
hereof
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10. Survival.
The provisions
of Sections 5,
6,
7, 8, 9, 10, 11,
and
12
shall
survive any termination of this Agreement. In furtherance and not in limitation
of the preceding sentence,
Employee’s obligations under Sections
5, 6
and
7
hereof
shall remain in effect throughout Employee’s employment by the Company,
unaffected by any transfer to a subsidiary or affiliate of the
Company.
11. Arbitration.
Any
controversy or claim based on, arising out of or relating to the interpretation
and performance of this Agreement or any termination hereof shall be solely
and
finally settled by arbitration under the rules of the American Arbitration
Association, and judgment on the award rendered in the arbitration may be
entered in any court having jurisdiction thereof. Any such arbitration shall
be
in the State of New Jersey, and shall be submitted to a single arbitrator
appointed by the mutual consent of the parties or, in the absence of such
consent, by application of any party to the American Arbitration Association.
A
decision of the arbitrator shall be final and binding upon the parties, and
the
arbitrator shall be authorized to apportion fees and expenses (including
counsel
fees and expenses) as the arbitrator shall deem appropriate. In the absence
of
any such apportionment, the fees and expenses of the arbitrator shall be
borne
equally by each party, and each party will bear the fee and expenses of its
own
attorney. The parties agree that this clause has been included to rapidly
and
inexpensively resolve any disputes between them with respect to this Agreement
and that this clause shall be grounds for dismissal of any court action
commenced by either party with respect to this Agreement, other than (i)
post-arbitration actions seeking to enforce an arbitration award and (ii)
actions seeking appropriate equitable or injunctive relief pursuant to Sections
5, 6 and/or 7 hereof
12. Miscellaneous.
12.1 Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws
of the
State of New Jersey without regard to principles of conflicts of
laws.
12.2 Entire
Agreement; Amendment.
This
Agreement and the exhibits annexed hereto between the Company and Employee
contain the complete understanding and agreement between the parties hereto
with
respect to the subject matter hereof, and supersede all prior understandings
and
agreements, written or oral, between the parties hereto relating to the subject
matter hereof This Agreement may not be amended or modified except in a writing
signed by the parties hereto.
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12.3 Severability.
In the
event that any provision or portion of this Agreement shall be determined
to be
invalid or unenforceable for any reason, in whole or in part, (i) the remaining
provisions of this Agreement shall be unaffected thereby and shall remain
in
full force and effect to the fullest extent permitted by law and (ii) any
such
invalidity or unenforceability shall be deemed replaced by a term or provision
determined by the parties as coming closest to expressing the intention of
the
invalid or unenforceable term or provision.
12.4 Notice.
Any
notice to be given hereunder shall be in writing and either delivered in
person,
by nationally recognized overnight courier, by facsimile or by registered
or
certified first class mail, postage prepaid with return receipt requested,
addressed (a) if to the Company, to Vyteris, Inc., 00-00 Xxxxxxx Xxxxx, Xxxx
Xxxx, XX 00000, attention: Chief Executive Officer, and with a copy to
Xxxxxxxxxx Xxxxxxx PC, 00 Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000
Facsimile No.:(000) 000-0000, attention Xxxxx X. Xxxxxxxxx, Esq. and (b)
if to
the Employee, to Xxxxxxx
X. Xxxxxxxxxxx,
00
Xxxxxxxxx Xxxx, Xxxxxxxxx Xxxxxxxx, Xxxxxx, Xxx Xxxxxx 00000. Notices
delivered personally shall be deemed given as of actual receipt; notices
sent
via facsimile transmission shall be deemed given as of one business day
following sender’s receipt from sender’s facsimile machine of written
confirmation of transmission thereof, notices sent by overnight courier shall
be
deemed given as of one business day following sending; and notices mailed
shall
be deemed given as of five business days after proper mailing. Any party
may
change its address in a notice given to the other party in accordance with
this
Section
12.4.
12.5 Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, legal representatives, successors (including,
without limitation, any successor by merger or sale of all or substantially
all
assets) and permitted assigns.
12.6 Further
Assurances.
Employee and the Company shall execute and deliver all instruments and other
documents which, in the opinion of the Company or the Employee, may be necessary
or appropriate to carry out the terms of this Agreement.
12.7 Deadlines.
The
Section headings in this Agreement are for convenience of reference only
and
shall not affect its interpretation.
12.8 Interpretation.
For
purposes of
Sections 5, 6, 7, 8
and
9,
the
“Company”
shall
include any subsidiary or affiliate of the Company for which Employee renders
services.
12.9 Counterparts.
This
Agreement may be executed in counterparts, each of which shall be deemed
an
original but all of which taken together shall constitute one and the same
agreement.
-
11
-
IN
WITNESS WHEREOF, this
Agreement has been executed and delivered by the parties hereto as of the
date
first above written.
|
/s/
Xxxxxxx X. Xxxxxxxxxxx
|
|||
|
Xxxxxxx
X. Xxxxxxxxxxx
|
|||
VYTERIS,
INC.
| By: |
/s/
Xxxxxxx
XxXxxxxx
|
||
|
Name: Xxxxxxx
XxXxxxxx
|
|||
|
Title: Chief
Executive Officer
|
-
12
-
Exhibit
A-I
PERSONAL
AND COMPANY PERFORMANCE OBJECTIVES FOR VARIABLE BONUS
* 10%
of
entire Variable Bonus (4% of Base Salary) for completion of due diligence
with
respect to the acquisition of Lehigh Valley Technologies (LVT) and final
resolution/execution of LVT acquisition as outlined in term sheet or as directed
by the Board.
* 20%
of
entire Variable Bonus (because this can only be earned, if at all, during
calendar year 2007, the greater of 8% of Base Salary or $25,000) based upon
the
Company consummating a public offering of equity securities which results
in net
proceeds to the Company (net of underwriters’ discount) of at least $25 million,
in a firm commitment underwriting led by an institutional securities
underwriter, by October 1, 2007.
* 20%
of
entire Variable Bonus (because this can only be earned, if at all, during
calendar year 2007, the greater of 8% of Base Salary or $25,000) based upon
the
Company successfully listing its common stock for trading on either the American
Stock Exchange (AMEX) or the Nasdaq Global Market, by December 31,
2007.
Exhibit
A-II
KRA
OBJECTIVES FOR VARIABLE BONUS
| · |
12.5%
of entire Variable Bonus (5% of Base Salary) -- upgrade of information
technology department to Chief Executive Officer’s
satisfaction.
|
| o |
Plan
by October 1, 2007
|
| o |
Upgrade
Completed by December 15, 2007
|
| · |
12.5%
of entire Variable Bonus (5% of Base Salary) - to lead, supervise,
and
execute securing a “second” level of key suppliers by November 1,
2007.
|
| o |
ID/Plan
and budget impact - October 1, 2007
|
| o |
Securing
second line - January 1, 2008
|
| · |
12.5%
of entire Variable Bonus (5% of Base Salary) -- formal 2008 budget
review
process, completed to Chief Executive Officer’s satisfaction by October
31, 2007 and Board approved by December 15,
2007.
|
| · |
12.5%
of entire Variable Bonus (5% of Base Salary) -- mentoring and development
of Xxxxxx Xxxx, to Chief Executive Officer’s satisfaction with Quarterly
Reviews and subsequent filing with
HR.
|
-
13
-
Exhibit
B
OPTION
VESTING
|
Milestones
|
Shares
|
|
|
1.
|
Prior
to October 1, 2007, the Company engages institutional underwriter
of
national reputation to manage a public offering of equity
securities.
|
100,000
|
|
2.
|
Prior
to December 31, 2007, the Company successfully lists its common
stock for
trading on either the American Stock Exchange (AMEX) or the Nasdaq
Global
Market
|
150,000
|
|
3.
|
Prior
to April 1, 2008, the Company consummate a public offering of equity
securities which results in gross proceeds to the Company of at
least $25
million, in a firm commitment underwriting led by an institutional
securities underwriter.
|
100,000
|
|
4.
|
Prior
to April 1, 2008, the Company consummate a public offering of equity
securities which results in gross proceeds to the Company of at
least $35
million, in a firm commitment underwriting led by an institutional
securities underwriter.
|
150,000
|
|
5.
|
Prior
to April 1, 2008, the Company consummate a public offering of equity
securities which results in gross proceeds to the Company of at
least $50
million, in a firm commitment underwriting led by an institutional
securities underwriter.
|
200,000
|
|
6.
|
50,000
options that vest over time as follows - 25,000 options vest upon
Employee’s first anniversary of employment with the Company (so long as
he
is then an employee of the Company) and 6,250 options vesting on
the last
day of each of the four calendar quarters commencing with September
30,
2008 (again, so long as he is then an employee of the Company)
|
50,000
|
|
750,000
|
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