EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit
10.1
*Information in
this exhibit marked [***] has been excluded pursuant to Regulation
S-K, Item 601(b)(10). Such excluded information is not material and
would likely cause competitive harm to the registrant if publicly
disclosed.
This
EXECUTIVE EMPLOYMENT AGREEMENT (this “ Agreement”) is
made as of March 19, 2019 (the “Effective
Date”) by and between CorMedix Inc., a Delaware
corporation with principal executive offices at 000 Xxxxxxx Xxxxx,
Xxxxx 0000 Xxxxxxxx Xxxxxxx, XX 00000 (the “Company”), and
Xxxxxx Xxxxxx (“Executive”).
Each of the Company and Executive is referred to herein as a
“Party” and
together they are referred to as the “Parties.”
TERMS
In
consideration of the foregoing premises and the mutual covenants
and agreements herein contained, the Parties, intending to be
legally bound, agree as follows:
1. Employment.
(a) Services. Executive will serve
as the Company’s Executive Vice President and General Counsel
as Head of Regulatory, Compliance and Legal commencing on May 1,
2019 (the “Start Date”).
Executive will report directly to, and be subject to the
supervision of, the Company’s Chief Executive Officer
(“CEO”).
Executive will perform such services for the Company and have such
powers, responsibilities and authority as are customarily
associated with the position of Executive Vice President and
General Counsel. Executive shall perform such other duties as may
otherwise be reasonably assigned to the Executive from time to time
by the CEO, and reasonably agree to modifications as appropriate
based on the needs of the Company.
(b) Acceptance. Executive hereby
accepts such employment subject to the terms of this
Agreement.
2. Term.
The
duration of employment under this Agreement shall commence on the
Start Date and shall continue for a term of three (3) years
thereafter, unless sooner terminated pursuant to Section 8
(such three-year period referred to herein as the
“Initial
Term”); provided, however, that on the expiration of
the Term, the Term shall be extended automatically for additional,
successive one-year periods (such extended periods referred to
herein as the “Extended
Term”), unless one Party shall notify the other in
writing at least ninety (90) days before the initial expiration of
the Initial Term or the expiration of any successive one-year
period during the Extended Term that this Agreement shall not be so
extended after such expiry (a “Notice of
Nonrenewal”). The Initial Term and the Extended Term
collectively shall be referred to herein as the “Term.”
Notwithstanding anything to the contrary contained herein, the
provisions of this Agreement specified in Sections 5, 6, 9,
10, 11, 12, and 13 shall survive the expiration or
termination hereof.
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3. Duties;
Place of Performance.
(a) Duties. Executive will be
employed on a full-time basis. Executive (i) shall devote all of
her business time, attention and energies to the business and
affairs of the Company, shall use her best efforts to advance the
interests of the Company, and shall perform her duties diligently
and to the best of her ability, in compliance with the
Company’s policies and procedures and the laws and
regulations that apply to the Company’s business; and (ii)
shall not be engaged in any other business activity, whether or not
such business activity is pursued for gain, profit or other
pecuniary advantage, that will interfere with the performance by
Executive of her duties hereunder or Executive’s availability
to perform such duties or that Executive knows, or should
reasonably know, will adversely affect, or negatively reflect upon,
the Company. Executive may serve as a director on for profit
boards, or on an advisory committee thereof, including for other
pharmaceutical and life science companies, with the advance consent
of the Company’s Board of Directors (the “Board”), such
consent not to be unreasonably withheld.
(b) Place of Performance. The
duties to be performed by Executive hereunder shall be performed
remotely, subject to reasonable travel requirements on behalf of
the Company, and provided that the Company can require Executive to
work at the Company’s headquarters for a reasonable number of
days per month.
4. Compensation.
As full
compensation for Executive’s performance of services as an
employee of the Company, the Company shall pay Executive as
follows:
(a) Base Salary. During the Initial
Term, the Company shall pay Executive an annual base salary of
Three Hundred Fifty Thousand Dollars ($350,000) (as it may be
increased from time to time as provided hereunder, the
“Base
Salary”), less applicable withholdings and deductions.
Payment shall be made in accordance with the Company’s normal
payroll practices. Upon the expiration of the Initial Term, the
Company’s Board, or its Compensation Committee, shall review
the Base Salary to determine whether an increase in the amount
thereof is warranted in its sole discretion. The Base Salary will
not be decreased unless (i) all officers and/or members of the
Company’s executive management team experience an equal or
greater percentage reduction in annual base salary and/or total
compensation; and (ii) Executive’s Base Salary reduction is
no greater than twenty-five (25) percent.
(b) Annual Bonus. Subject to the
following provisions of this Section
4(b), Executive shall be eligible to receive an annual
target bonus, less applicable withholdings and deductions, in an
amount not to exceed thirty (30) percent of the Base Salary then in
effect, as determined by the Board (or its Compensation Committee)
in good faith based upon the achievement, during the year in
question, of both personal and Company-wide objectives established
by the Company’s CEO after consultation with Executive and
approved by the Board (or its Compensation Committee) at the
beginning of each year. The Company will endeavor to establish a
given year’s performance objectives within the first 30 days
of the year. For calendar year 2019, the bonus will be pro-rated
based on the portion of the year actually worked, and initial
performance objectives will be established within 30 days after the
Start Date. Executive must be employed by the Company through
December 31 of a given year in order to earn the annual bonus for
such year; provided that, in accordance with Section 9(c),
Executive will be eligible to receive a prorated annual bonus where
Executive’s employment is terminated by the Company other
than as a result of Executive’s death or Disability, other
than by Notice of Nonrenewal and other than for Cause, or where
Executive terminates Executive’s employment for Good Reason
(as defined below) before the final day of the bonus year. The
annual bonus for a given year will be paid no later than March 15
of the year following the year to which it relates.
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Stock Options. The Company will
grant to Executive stock options to purchase Three Hundred Fifty
Thousand (350,000) shares of the Company’s outstanding common
stock (the “Options”). The
Options shall be granted pursuant to and subject to the terms and
conditions of the Company’s 2013 Stock Incentive Plan, as
amended (the “Plan”) and
shall be further subject to the terms of stock option agreements to
be entered into between Executive and the Company. The exercise
price of the Options will be equal to the closing price of the
Company’s common stock on the applicable date of grant on the
New York Stock Exchange (“NYSE”). The
Options will be divided into “Time Options” and
“Milestone Options” as described below. The
“Time
Options” will be 210,000 of the total Options, and
will vest over four (4) years in four (4) equal annual installments
on the first four anniversaries of the Start Date, subject to
Executive’s three (3) year employment with the Company. The
“Milestone
Options” will be the remaining 140,000 of the total
Options, and will vest as follows: (i)
90,000 of the Milestone Options will vest upon [***] and (ii)
50,000 of the Milestone Options will vest upon [***], provided,
with respect to each tranche of the Milestone Options, Executive
remains an employee of, or a consultant to, the Company through the
applicable vesting date, and provided further that such Milestone
Options will be forfeited if performance of the objectives
associated with the Milestone Options is not
achieved.
(c) Withholding. The Company will
withhold from any amounts payable under this Agreement such
federal, state and local taxes as the Company determines are
required to be withheld pursuant to applicable law.
(d) Expenses. The Company will
reimburse Executive for all normal, usual and necessary expenses
incurred by Executive in furtherance of the business and affairs of
the Company, including without limitation reasonable travel,
lodging, meals, and entertainment upon timely receipt by the
Company of appropriate vouchers or other proof of Executive’s
expenditures and otherwise in accordance with any expense
reimbursement policy as may from time to time be adopted by the
Company. Such reimbursements will be made in a timely manner within
30 days of the date of submission of the relevant documentation
relating to the expense incurred and in accordance with the
policies of the Company, but in no event later than December 31 of
the year following the year in which Executive incurs such expense.
The amount of expenses eligible for reimbursement during one year
will not affect the expenses eligible for reimbursement in any
other year, and is not subject to liquidation or exchange for
another benefit.
(e) Other Benefits. Executive shall
be entitled to all rights and benefits for which she shall be
eligible under any benefit or other plans (including, without
limitation, dental, medical, medical reimbursement and hospital
plans, pension plans, employee stock purchase plans, profit sharing
plans, bonus plans, prescription drug reimbursement plans, short
and long term disability plans, life insurance and other so-called
“fringe” benefits) as the Company shall make available
to its senior executives from time to time. All such benefits are subject to the
provisions of their respective plan documents in accordance with
their terms and are subject to amendment or termination by the
Company without Executive’ s consent.
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(f) Vacation. Executive shall be
entitled to a vacation up to four (4) weeks per annum, of which no
more than two (2) weeks may be taken consecutively, in addition to
holidays observed by the Company and reasonable periods of paid
personal and sick leave. All such paid time off shall accrue and be
used in accordance with the Company’s established policies
and procedures.
(h) Future
Equity. After the Initial Term, Executive shall be eligible
for future equity grants, in the discretion of the Board (or its
Compensation Committee).
5. Confidential
Information and Inventions.
(a) Confidential Information;
Non-Disclosure and Non-Use. Executive recognizes and
acknowledges that in the course of her duties she will receive
confidential or proprietary information of the Company, its
affiliates or third parties with whom the Company or any such
affiliates has an obligation of confidentiality. Accordingly,
during and after the Term, Executive agrees to keep confidential
and not disclose or make accessible to any other person or entity
or use for any other purpose other than in connection with the
fulfillment of her duties under this Agreement, any
“Confidential and Proprietary Information” (defined
below) owned by, or received by or on behalf of the Company or any
of its affiliates. The term “Confidential and
Proprietary Information” shall include, but shall not
be limited to, confidential or proprietary scientific or technical
information, data, formulas and related concepts, business plans
(both current and under development), client lists, promotion and
marketing programs, trade secrets, or any other confidential or
proprietary business information relating to development programs,
costs, revenues, marketing, investments, sales activities,
promotions, credit and financial data, manufacturing processes,
financing methods, and any and all information relating to the
operation of the Company’s business which the Company may
from time to time designate as confidential or proprietary or that
Executive reasonably knows should be, or has been, treated by the
Company as confidential or proprietary. Executive expressly
acknowledges that the Confidential and Proprietary Information
constitutes a protectable business interest of the Company.
Confidential and Proprietary Information encompasses all formats in
which information is preserved, whether electronic, print, or any
other form, including all originals, copies, notes, or other
reproductions or replicas thereof. Except in connection with the
execution of Executive’s duties to the Company, Executive
agrees: (i) not to use any such Confidential and Proprietary
Information for himself or others; and (ii) not to take any Company
material or reproductions (including but not limited to writings,
correspondence, notes, drafts, records, invoices, technical and
business policies, computer programs or disks) thereof from the
Company’s offices at any time during her employment by the
Company.
(b) Return of Property. Upon
request during employment and immediately at the termination of her
employment for any reason, Executive will return to the Company all
Confidential and Proprietary Information in any form (including all
copies and reproductions thereof) and all other property whatsoever
of the Company in her possession or under her control. If requested
by the Company, Executive will certify in writing that all such
materials have been returned to the Company. Executive also
expressly agrees that immediately upon the termination of her
employment with the Company for any reason, Executive will cease
using any secure website, computer systems, e-mail system, phone
system or voicemail service provided by the Company for the use of
its employees. Notwithstanding the foregoing, Executive may retain
her address book to the extent it only contains contact
information.
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(c) Exceptions. Confidential and
Proprietary Information does not include any information that: (i)
at the time of disclosure is generally known to, or readily
ascertainable by, the public; (ii) becomes known to the public
through no fault of Executive or other violation of this Agreement;
or (iii) is disclosed to Executive by a third party under no
obligation to Executive’s knowledge to maintain the
confidentiality of the information. The restrictions in
Section
5(a) above will not apply to any information the extent that
that Executive is required to disclose such information by law,
provided that the Executive (x) notifies the Company of the
existence and terms of such obligation, (y) gives the Company
prompt notice to seek a protective or similar order to prevent or
limit such disclosure, and (z) only discloses that information
actually required to be disclosed. Notwithstanding the foregoing,
nothing in this Agreement is meant to prohibit Executive from
reporting possible violations of federal law or regulation to any
governmental agency or entity, including but not limited to the
Department of Justice, the SEC, the Congress, and any agency
Inspector General, or making other disclosures that are protected
under the whistleblower provisions of federal law or regulation.
Executive shall not be required to obtain the prior authorization
of the Company to make any such reports or disclosures and is not
required to notify the Company that she has made such reports or
disclosures.
(d) Notice Of Immunity From Liability For
Confidential Disclosure Of A Trade Secret To The Government Or In A
Court Filing. Pursuant to the Federal Defend Trade Secrets
Act of 2016, Executive shall not be held criminally or civilly
liable under any federal or state trade secret law for the
disclosure of a trade secret that (a) is made (i) in confidence to
a federal, state or local government official, either directly or
indirectly, or to an attorney; and (ii) solely for the purpose of
reporting or investigating a suspected violation of law; or (b) is
made in a complaint or other document filed in a lawsuit or other
proceeding, if such filing is made under seal. An individual who
files a lawsuit for retaliation by an employer for reporting a
suspected violation of law may disclose the trade secret to his or
her attorney and use the trade secret information in the court
proceeding, if the individual (a) files any document containing the
trade secret under seal; and (b) does not disclose the trade
secret, except pursuant to court order.
(e) Inventions. Executive agrees
that all inventions, discoveries, improvements and patentable or
copyrightable works (“Inventions”)
initiated, conceived or made by her in the course of her employment
with the Company, either alone or in conjunction with others,
during the Term shall be the sole property of the Company to the
maximum extent permitted by applicable law and, to the extent
permitted by law, shall be “works made for hire” as
that term is defined in the United States Copyright Act (17 U.S.C.,
Section 101). The Company shall be the sole owner of all patents,
copyrights, trade secret rights, and other intellectual property or
other rights in connection therewith; provided, however that this
Section
5(e) shall not apply to Inventions which are not related to
the business of the Company and which are made and conceived by
Executive not during normal working hours, not on the
Company’s premises and not using the Company’s tools,
devices, equipment or Confidential and Proprietary Information.
Subject to the foregoing, Executive hereby assigns to the Company
all right, title and interest she may have or acquire in all
Inventions; provided, however, that the Board may in its sole
discretion agree to waive the Company’s rights pursuant to
this Section
5(e).
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(f) Further Actions and Assistance.
Executive agrees to cooperate reasonably with the Company and at
the Company’s expense, both during and after her 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 the Inventions. Executive shall sign all
papers, including, without limitation, copyright applications,
patent applications, declarations, oaths, formal assignments,
assignments of priority rights and powers of attorney, that the
Company reasonably may deem necessary or desirable in order to
protect its rights and interests in any Inventions. 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 her agent and attorney-in-fact and Executive hereby irrevocably
designates and appoints each officer of the Company as her agent
and attorney-in-fact to execute any such papers on her behalf and
to take any and all actions as the Company reasonably may deem
necessary or desirable in order to protect its rights and interests
in any Inventions, under the conditions described in this
Section
5(f).
(g) Prior Inventions. Executive
will not assert any rights to any invention, discovery, idea or
improvement relating to the business of the Company or to her
duties hereunder as having been made or acquired by Executive prior
to her work for the Company, except for the matters, if any,
described in Appendix A
to this Agreement.
(h) Disclosure. Executive agrees
that she will promptly disclose to the Company all Inventions
initiated, made, conceived or reduced to practice by her, either
alone or jointly with others, during the Term.
(i) Survival. The provisions of
this Section 5
shall survive any termination of this Agreement.
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6. Non-Competition,
Non-Solicitation and Non-Disparagement.
(a) Executive
understands and recognizes that her services to the Company are
special and unique and that in the course of performing such
services Executive will have access to and knowledge of
Confidential and Proprietary Information. Executive agrees that,
during the Term and the twelve (12) month period immediately
following Executive’s separation from employment (the
“Termination Restriction
Period”), whether such separation is voluntary or
involuntary, she shall not in any manner, directly or indirectly,
on behalf of herself or any person, firm, partnership, joint
venture, corporation or other business entity (“Person”),
enter into or engage in any business involving the development or
commercialization of a preventive anti-infective product that would
be a competitor of Neutrolin or a product containing taurolidine or
any other product being actively developed or produced by the
Company as of the date of Executive’s termination of
employment (the “Business of
Company”), either as an individual for her own
account, or as a partner, joint venturer, owner, executive,
employee, independent contractor, principal, agent, consultant,
salesperson, officer, director or shareholder of such Person, in
any capacity that requires or could result in Executive’s
intentional, unintentional, or inevitable use of the Confidential
and Proprietary Information and/or requires Executive to perform
services substantially similar to those performed for the benefit
of the Company during the Term, within the United States and the
European Union, provided, however, that nothing shall prohibit
Executive from performing executive duties for any Person that does
not engage in the Business of Company. Executive acknowledges that,
due to the unique nature of the Business of the Company, the
Company has a strong legitimate business interest in protecting the
continuity of its business interests and its Confidential and
Proprietary Information and the restriction herein agreed to by
Executive narrowly and fairly serves such an important and critical
business interest of the Company. Notwithstanding the foregoing,
nothing contained in this Section 6(a)
shall be deemed to prohibit Executive from acquiring or holding,
solely for investment, publicly traded securities of any
corporation, some or all of the activities of which are engaged in
the Business of Company so long as such securities do not, in the
aggregate, constitute more than four percent (4%) of any class or
series of outstanding securities of such corporation; or being a
passive investor holding less than four percent (4%) of a private
equity, venture capital or other commingled fund; and further
notwithstanding the foregoing, nothing contained in this
Section
6(a) shall preclude Executive from becoming an employee of,
or from otherwise providing services to, a separate division or
operating unit of a multi-divisional business or enterprise (a
“Division”) if:
(i) the Division by which Executive is employed, or to which
Executive provides services, is not engaged in the Business of
Company, (ii) Executive does not provide services, directly or
indirectly, to any other division or operating unit of such
multi-divisional business or enterprise engaged in or proposing to
engage in the Business of Company (individually, a
“Competitive
Division” and collectively, the “Competitive
Divisions”) and (iii) the Competitive Divisions, in
the aggregate, accounted for less than one-third of the
multi-divisional business or enterprise's consolidated revenues for
the fiscal year, and each subsequent quarterly period, prior to
Executive's commencement of employment with or provision of
services to the Division.
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(b) Reasonableness of Restriction.
Executive hereby acknowledges and agrees that the covenant against
competition provided for pursuant to Section 6(a)
is reasonable with respect to its duration, geographic area and
scope. In addition, Executive acknowledges that the Company engages
in the Business of Company throughout the United States and the
European Union. If, at the time of enforcement of this Section 6, a
court holds that the restrictions stated herein are unreasonable
under the circumstances then existing, the Parties hereto agree
that the maximum duration, scope or geographic area legally
permissible under such circumstances will be substituted for the
duration, scope or area stated herein.
(c) Non-Solicitation. During the
Term and the applicable Termination Restriction Period (as defined
herein), Executive shall not, directly or indirectly, on her own
behalf or on behalf of any person or entity, without the prior
written consent of the Company:
(i) solicit or induce
any employee, consultant or independent contractor of the Company
or any of its affiliates to leave the employ of (or end a
contracting relationship with) the Company or any affiliate; or
hire for any competitive purpose any employee consultant or
independent contractor of the Company; or hire any former employee
who has left the employment of the Company or any affiliate of the
Company within six (6) months of the termination of such employee's
employment with the Company or any such affiliate for any
competitive purpose; or hire any former consultant or independent
contractor who has ended his or her consultancy or contracting
relationship with the Company or any affiliate of the Company
within six (6) months of the end of such consultancy or contracting
relationship for any competitive purpose; or hire any former
employee of the Company in knowing violation of such employee's
non-competition agreement with the Company or any such affiliate;
or
(ii) solicit,
divert or take away, or attempt to divert or take away, the
business or patronage of any agent, client or customer of the
Company which was served by the Company during the twelve-month
period prior to the termination of Executive’s employment
with the Company; or induce, encourage, or attempt to induce or
encourage any client or customer of the Company which was served by
the Company during the twelve-month period prior to the termination
of Executive’s employment with the Company to reduce, limit,
or cancel its business with the Company.
For
clarity, the foregoing shall not be violated by general
advertising, by serving as a reference upon request or by actions
taken in the good faith performance of Executive’s duties to
the Company.
(d) Non-Disparagement. Executive
agrees that she shall not directly or indirectly disparage, whether
or not truthfully, the name or reputation of the Company or any of
its affiliates, including but not limited to, any officer,
director, employee or shareholder (provided Executive has had
material dealings with such shareholder) of the Company or any of
its affiliates; provided that, nothing in this Section shall be
construed to interfere with Executive’s right to engage in
protected concerted activity under the National Labor Relations
Act. Notwithstanding this Section
6(d), nothing contained herein shall apply to statements
made by Executive (x) in the course of her responsibility to
evaluate the performance and/or participate in any investigation of
the conduct or behavior of officers, employees and/or others, (y)
as part of any judicial, administrative or other legal action or
proceeding, or (z) in rebuttal of false or misleading statements by
others, and nothing shall be construed to limit or impair the
ability of Executive to provide truthful testimony in response to
any validly issued subpoena or to file pleadings or respond to
inquiries or legal proceedings by any government agency to the
extent required by applicable law. These non-disparagement
obligations will cease to apply two (2) years after
Executive’s termination of employment.
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(e) Enforcement. In the event that
Executive breaches or threatens to breach any provisions of
Section
5 or this Section 6,
then, in addition to any other rights the Company may have, it
shall be entitled to seek injunctive relief to enforce such
provisions. In the event that an actual proceeding is brought in
equity to enforce the provisions of Section 5 or
this Section 6,
Executive shall not urge as a defense that there is an adequate
remedy at law nor shall the Company be prevented from seeking any
other remedies that may be available to it.
(f) Remedies Cumulative; Judicial
Modification. Each of the rights and remedies enumerated in
Section
6(e) shall be independent of the others and shall be in
addition to and not in lieu of any other rights and remedies
available to the Company at law or in equity. If any of the
covenants contained in this Section 6,
or any part of any of them, is hereafter construed or adjudicated
to be invalid or unenforceable, the same shall not affect the
remainder of the covenant or covenants or rights or remedies, which
shall be given full effect without regard to the invalid portions.
If any of the covenants contained in this Section 6 is
held to be invalid or unenforceable because of the duration of such
provision or the area covered thereby, the Parties agree that the
court making such determination shall have the power to reduce the
duration and/or area of such provision and in its reduced form such
provision shall then be enforceable.
(g) Survival. The provisions of
this Section 6
shall survive any termination of this Agreement.
7. Representations
and Warranties.
Executive hereby represents and warrants to the Company as
follows:
(a) Neither the
execution or delivery of this Agreement nor the performance by
Executive of her duties and other obligations hereunder conflict
with or constitute a default or breach of any covenant or
obligation under (whether immediately, upon the giving of notice or
lapse of time or both) any prior employment agreement, contract, or
other instrument to which Executive is a party or by which she is
bound.
(b) Executive has the
full right, power and legal capacity to enter and deliver this
Agreement and to perform her duties and other obligations
hereunder. This Agreement constitutes the legal, valid and binding
obligation of Executive enforceable against her in accordance with
its terms. No approvals or consents of any persons or entities are
required for Executive to execute and deliver this Agreement or
perform her duties and other obligations hereunder.
(c) Executive will not
use any confidential information or trade secrets of any third
Party in her employment by the Company in violation of the terms of
the agreements under which she had access to or knowledge of such
confidential information or trade secrets.
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8. Termination.
(a) Cause. Executive’s
employment hereunder may be terminated by the Company immediately
for “Cause” (defined below). Any of the following
actions by Executive shall constitute “Cause”:
(i) The willful
failure, disregard or refusal by Executive to perform her material
duties or obligations under this Agreement (other than as a result
of Executive’s mental incapacity or illness, as confirmed by
medical evidence provided by a physician selected by the Company),
if such failure, disregard or refusal is not cured (if curable, as
determined in the reasonable discretion of the Board) within 30
days after receiving written notice from the Board specifying each
such deficiency;
(ii) Any
willful, intentional or grossly negligent act by Executive having
the effect of materially injuring (whether financially or
otherwise) the business or reputation of the Company or any of its
affiliates (other than acts that were performed in a good faith
attempt to advance the business interests of the
Company);
(iii) Executive’s
conviction of any felony involving moral turpitude (including entry
of a guilty or nolo contendere plea);
(iv) The
Executive’s qualification as a “bad actor,” as
defined by 17 CFR §230.506(a);
(v) The good faith
determination by the Board, after a reasonable and good-faith
investigation by the Company, that Executive engaged in some form
of harassment or discrimination prohibited by law (including,
without limitation, harassment on the basis of age, sex or race)
unless Executive’s actions were specifically directed by the
Board;
(vi) Any
material misappropriation or embezzlement by Executive of the
property of the Company or its affiliates (whether or not a
misdemeanor or felony); or
(vii) A
material breach of this Agreement by Executive in the event
Executive has failed to cure such breach (if curable, as determined
in the reasonable discretion of the Board) within 30 days after
receiving written notice from the Board specifying such
breach.
(b) Death. Executive’s
employment hereunder shall be terminated upon Executive’s
death.
(c) Disability. The Company may
terminate Executive’s employment hereunder due to
Executive’s “Disability” (defined below) while
Executive is so Disabled. For purposes of this Agreement, a
termination due to Executive’s “Disability”
shall be deemed to have occurred if the Executive has not been able
to perform her material duties for 90 consecutive days or 90 days
in a 180 day period, due to the condition of Executive’s
physical, mental or emotional health, taking into account the
Company’s obligations under the applicable provisions of the
Americans with Disabilities Act, as amended, the Family and Medical
Leave Act, and any similar applicable law.
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(d) Good Reason. Executive may
terminate her employment hereunder for “Good Reason”
(as defined below) pursuant to the procedures set forth in this
Section
8(d). In order for Executive to resign for Good Reason,
Executive must provide written notice to the Board of the existence
of the Good Reason condition within sixty (60) days of the initial
existence of such Good Reason condition. Upon receipt of such
notice, the Company will have thirty (30) days during which it may
attempt to remedy the Good Reason condition. If so remedied,
Executive may not resign for Good Reason based on such condition.
If the Good Reason condition is not remedied within such thirty
(30) day period, Executive may resign based on the Good Reason
condition specified in the notice effective no later than thirty
(30) days following the expiration of the thirty (30) day cure
period. The term “Good Reason”
shall mean any of the following occurring without the
Executive’s consent:
(i) any material breach
of this Agreement by the Company;
(ii) any
material diminution by the Company of Executive’s
responsibilities or authority;
(iii) a
material reduction in Executive’s annual Base Salary unless
(i) all officers and/or members of the Company’s executive
management team experience an equal or greater percentage reduction
in annual base salary and/or total compensation; and (ii)
Executive’s Base Salary and/or total compensation reduction
is no greater than twenty-five (25) percent; or
(iv) a
material reduction in Executive’s target bonus level unless:
(i) all officers and/or members of the Company’s executive
management team experience an equal or greater percentage reduction
related to target bonus levels; and (ii) Executive’s target
bonus level reduction is no greater than twenty-five (25)
percent.
(e) Without Cause. The Company may
terminate Executive’s employment (i) effective upon written
notice to Executive at any time for any reason other than for Cause
or Executive’s Disability, or (ii) by providing a Notice of
Nonrenewal to the other Party pursuant to the terms of Section
2.
(f) Resignation. Executive may
resign for a reason other than Good Reason at any time upon thirty
(30) days written notice of termination to the Company, or by
providing a Notice of Nonrenewal to the other Party pursuant to the
terms of Section
2.
9. Compensation
upon Termination.
In the
event Executive’s employment is terminated, the Company shall
pay to Executive the Base Salary and benefits otherwise payable to
her under Section 4
through the last day of her
actual employment by the Company, along with the annual bonus as
described in Section 4(b)
for any completed fiscal year not yet
paid, in addition to any reimbursable business expenses
subject to Company policy and any amounts due under any benefit
plan or program in accordance with its terms (together, the
“Accrued
Compensation”). Except for the Accrued Compensation,
rights to indemnification and directors’ and officers’
liability insurance, and as otherwise required by law, Executive
will have no further entitlement hereunder to any other
compensation or benefits from the Company except as expressly
provided below:
11
(a) Death or Disability. If
Executive’s employment is terminated as a result of her death
or Disability, the Company shall pay to Executive or to
Executive’s estate, as applicable, the Accrued
Compensation.
(b) Cause. If Executive’s
employment is terminated by the Company for Cause, Executive shall
not be entitled to receive any payments or benefits other than the
Accrued Compensation, rights to indemnification and
directors’ and officers’ liability insurance and as
otherwise required by law. All equity awards granted to Executive
by the Company that have not vested as of the date of termination
shall be forfeited to the Company as of such date.
(c) Other than for Cause, Non-Renewal,
Death or Disability. If the Company terminates
Executive’s employment, other than as a result of
Executive’s death or Disability, other than by Notice of
Nonrenewal and other than for Cause, or if Executive terminates
Executive’s employment for Good Reason, then conditioned upon Executive executing a
Release (as defined below) following such termination, the Company
will provide to Executive the following separation benefits:
(i) payment of the Accrued Compensation, rights to indemnification
and directors’ and officers’ liability insurance and
any rights or privilege otherwise required by law, (ii) payment to
Executive of nine (9) months of her Base Salary, (iii) payment to
Executive on a prorated basis of the target bonus for the year of
termination based on the actual achievement of the objectives
referenced in Section 4(b),
(iv) if Executive timely elects continued health insurance coverage
under COBRA, payment to Executive of a portion of the premium
necessary to continue such coverage for Executive and
Executive’s eligible dependents that is equal to the portion
paid for by the Company during Executive’s employment, until
the conclusion of the time when Executive is receiving continuation
of Base Salary payments or until Executive becomes eligible for
group health insurance coverage under another employer’s
plan, whichever occurs first, provided however that the Company has
the right to terminate such payment of COBRA premiums on behalf of
Executive and instead pay Executive a lump sum amount equal to the
COBRA premium times the number of months remaining in the specified
period if the Company determines in its discretion that continued
payment of the COBRA premiums is or may be discriminatory under
Section 105(h) of the Code, and (v) all Time Options that are
scheduled to vest on or before the next succeeding anniversary of
the date of termination shall be accelerated and deemed to have
vested as of the termination date; provided that, for the avoidance
of doubt, the Milestone Options whose vesting requirements have not
been successfully met as of the date of Executive’s
termination of employment or resignation with Good Reason will not
accelerate. The separation benefits
set forth above are conditioned upon Executive executing a
release of claims against the Company, its parents, subsidiaries
and affiliates and each of its officers, directors, employees,
agents, successors and assigns in form acceptable to the Company
(the “Release”)
within the time specified therein, which Release is not revoked within any time period allowed for
revocation under applicable law. The salary continuation described
in Section
9(c)(ii) above will be payable
to Executive over time in accordance with the Company’s
payroll practices and procedures beginning on the sixtieth
(60th) day following the termination of Executive’s
employment with the Company, provided that the Company, in its sole
discretion but in accordance with Internal Revenue Code Section
409A, may begin the payments earlier.
12
(d) By Notice of Non-Renewal. If,
pursuant to Section
8(f), Executive terminates her employment hereunder by
written notice of termination without Good Reason or if either
Party terminates Executive’s employment by providing a Notice
of Nonrenewal to the other Party, Executive shall not be entitled
to receive any payments or benefits other than the Accrued
Compensation, rights to indemnification and directors’ and
officers’ liability insurance and as otherwise required by
law.
(e) This Section 9
sets forth the only obligations of the Company with respect to the
termination of Executive’s employment with the Company, and
Executive acknowledges that, upon the termination of her
employment, she shall not be entitled to any payments or benefits
which are not explicitly provided in this Section 9,
except as required by law or the terms of another employee plan,
program or arrangement covering her.
(f) The obligations of
the Company that arise under this Section 9
shall survive the expiration or earlier termination of this
Agreement.
10. Change
In Control.
(a) Change In Control Defined. The
term “Change In
Control” shall have the same meaning as defined in the
Plan, as in effect on the date of this Agreement.
(b) Consequence upon Executive’s
Termination Without Cause or Executive’s Resignation With
Good Reason. Upon Executive’s termination of
employment by the Company without Cause or Executive’s
resignation of employment with Good Reason within twenty-four
months after a Change In Control, the Company shall provide
Executive the following separation benefits: (i) payment of the
Accrued Compensation, rights to indemnification and
directors’ and officers’ liability insurance and any
rights or privilege otherwise required by law, (ii) payment to
Executive of her Base Salary and full target bonus over a period of
nine (9) months, (iii) payment to Executive on a prorated basis for
any partial bonus earned by Executive based on the achievement of
the objectives referenced in Section
4(b), (iv) if Executive timely elects continued health
insurance coverage under COBRA, payment to Executive of the entire
premium necessary to continue such coverage for Executive and
Executive’s eligible dependents until the conclusion of the
time when Executive is receiving continuation of Base Salary
payments or until Executive becomes eligible for group health
insurance coverage under another employer’s plan, whichever
occurs first, provided however that the Company has the right to
terminate such payment of COBRA premiums on behalf of Executive and
instead pay Executive a lump sum amount equal to the COBRA premium
times the number of months remaining in the specified period if the
Company determines in its discretion that continued payment of the
COBRA premiums is or may be discriminatory under Section 105(h) of
the Code, and (v) all unvested Options held by Executive shall be
accelerated and deemed to have vested as of the date of the
Executive’s termination of employment. All Options that have
vested (or been deemed pursuant to the immediately preceding
sentence to have vested) as of the date of Executive’s
termination of employment shall remain exercisable until the
earlier of the date that is twelve (12) months following such
termination or the expiration date applicable under the respective
Option grant(s). The separation
benefits set forth above are conditioned upon Executive
executing a Release within the time specified therein, which
Release is not revoked within any time
period allowed for revocation under applicable law. The salary
continuation described in Section
10(b)(ii) above will be payable
to Executive over time in accordance with the Company’s
payroll practices and procedures beginning on the sixtieth
(60th) day following the termination of Executive’s
employment with the Company, provided that the Company, in its sole
discretion but in accordance with Section 409A (defined below), may
begin the payments earlier.
13
(c) Potential Adjustments due to Tax
Implications. Notwithstanding anything in this Agreement or
any other agreement between Executive and the Company to the
contrary, but subject to this Section
10(c), the Company will effectuate the acceleration
contemplated under Section
10(b) and will make the payments and other acceleration of
benefits under this Agreement and other compensatory arrangements
without regard to whether Section 280G of the Code would limit or
preclude the deductibility of such payments or benefits. However,
if reducing or eliminating any payment and/or other benefit
(including the vesting of her options or other equity compensation)
would increase the “Total After-Tax Payments” (defined
below), then the amounts payable to Executive will be reduced or
eliminated as follows (or in such other manner as Executive may
specify at the applicable time if permitted to do so without
violation of Internal Revenue Code Sections 280G, 409A and 4999) to
the extent necessary to maximize such Total After-Tax
Payments:
(i) first, by reducing
or eliminating any cash payments or other benefits (other than the
vesting of any options or stock) and
(ii) second,
by reducing or eliminating the vesting of options and stock that
occurs as a result of a Change in Control or other event covered by
Section 280G of the Code in reverse order of vesting and with
grants whose parachute value is calculated without regard to
Treasury Regulations 280G-1 Q&A 24(c) being reduced prior to
those subject to Q&A 24(c).
The
Company’s independent, certified public accounting firm will
determine whether and to what extent payments or vesting are
required to be reduced or eliminated in accordance with the
foregoing. If there is ultimately determined to be an underpayment
of or overpayment to Executive under this provision, the amount of
such underpayment or overpayment will be immediately paid to
Executive or refunded by her,
as the case may be, with interest at the applicable federal rate
under the Code. The term “Total AfterTax
Payments” means the total value of all
“parachute payments” (as that term is defined in
Section 280G(b)(2) of the Code) made to Executive or for
her benefit (whether made
under the Agreement or otherwise), after reduction for all
applicable federal taxes (including, without limitation, the tax
described in Section 4999 of the Code). The cost of the accountant
shall be paid by the Company and the accountant shall deliver to
the parties its calculations in a form that can be relied upon for
filing of tax returns. The calculations made pursuant to this
section shall be made by allocating the full summary compensation
table value (from the latest filed proxy) or an estimate thereof of
the Executive’s annual total compensation to the
noncompetition provisions set forth in this Agreement.
11. Indemnification.
The
Company shall defend and indemnify Executive in regard to her
capacities with the Company, its affiliates and its benefit plans
to the fullest extent permitted under the Delaware General
Corporate Law (the “DGCL”). The
Company shall also establish a policy for indemnifying its officers
and directors, including but not limited to Executive, for all
actions permitted under the DGCL taken in good faith pursuit of
their duties for the Company, including, but not limited to, the
obtaining of an appropriate level of directors and officers
liability insurance coverage and including such provisions in the
Company’s bylaws or certificate of incorporation, as
applicable and customary. Executive shall be designated as a named
insured on such directors and officers liability insurance policy.
Executive’s rights to, and the Company’s obligation to
provide, indemnification shall survive termination of this
Agreement.
14
12. Compliance
with Code Section 409A.
(a) Intent of the Parties. The
intent of the Parties is that the payments, compensation and
benefits under this Agreement will be exempt from or comply with
Section 409A of the Internal Revenue Code of 1986, as amended,
and the regulations and guidance promulgated thereunder
(collectively “Section 409A”)
and, in this connection, the Agreement shall be interpreted to be
exempt or in compliance with Section 409A. Further, if any benefit
or payment payable under this Agreement is deemed to not comply
with Section 409A, the Company and Executive agree to
renegotiate in good faith any such benefit or payment (including,
without limitation, as to the timing of any severance payments
payable hereunder) so that either (i) Section 409A will not apply
or (ii) compliance with Section 409A will be achieved; provided,
however, that any resulting renegotiated terms shall provide to
Executive to the greatest extent possible the after-tax economic
equivalent of what otherwise has been provided to Executive
pursuant to the terms of this Agreement, and provided further, that
any deferral of payments or other benefits shall be only for such
time period as may be required to comply with
Section 409A.
(b) Potential Delay of Payment(s) and
Adjustments. For the avoidance of doubt, the Parties intend
that payments of the separation
benefits set forth in Section 9
and Section 10
above satisfy, to the greatest extent possible, the exemptions from
the application of Section 409A provided under Treasury Regulation
Sections 1.409A-1(b)(4), 1.409A-1(b)(5), and 1.409A-1(b)(9). If any
payment, compensation or other benefit provided to Executive in
connection with her separation from service is determined, in whole
or in part, to constitute “nonqualified deferred
compensation” within the meaning of Section 409A and
Executive is a “specified employee” within the meaning
of Section 409A, no part of such payments shall be paid before the
day that is six (6) months plus one (1) day after the termination
date or her earlier death (the “New Payment
Date”). The aggregate of any payments that otherwise
would have been paid to Executive during the period between the
termination date and the New Payment Date shall be paid to
Executive in a lump sum on such New Payment Date. Thereafter, any
payments that remain outstanding as of the day immediately
following the New Payment Date shall be paid without delay over the
time period originally scheduled, in accordance with the terms of
this Agreement.
(c) Separation from Service.
Notwithstanding anything to the contrary set forth herein, any
payments and benefits provided under Section 9 or
Section
10 above that constitute “deferred compensation”
within the meaning of Section 409A will not commence in connection
with Executive’s termination of employment unless and until
Executive has also incurred a “separation from service”
(as such term is defined in Treasury Regulation Section
1.409A-1(h)), unless the Company reasonably determines that such
amounts may be provided to Executive without causing Executive to
incur additional tax under Section 409A.
(d) Installments. If any payment,
compensation or other benefit required by the Agreement is to be
paid in a series of installment payments, each individual payment
in the series shall be considered a separate payment for purposes
of Section 409A.
15
13. Miscellaneous.
(a) Governing Law. This Agreement
and all questions relating to its validity, interpretation,
performance, remediation, and enforcement (including, without
limitation, provisions concerning limitations of actions) shall be
governed by and construed in accordance with the substantive laws
of the State of Delaware, notwithstanding any choice-of-law
doctrines of that jurisdiction or any other jurisdiction that
ordinarily would or might cause the substantive law of another
jurisdiction to apply.
(b) Personal Jurisdiction. TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY ACTION OR
PROCEEDING RELATING IN ANY WAY TO THIS AGREEMENT MAY ONLY BE
BROUGHT AND ENFORCED IN THE STATE OR FEDERAL COURTS LOCATED IN
SOMERSET COUNTY, NEW JERSEY, TO THE EXTENT SUBJECT MATTER
JURISDICTION EXISTS THEREFORE. THE PARTIES IRREVOCABLY SUBMIT TO
THE JURISDICTION OF SUCH COURTS IN RESPECT OF ANY SUCH ACTION OR
PROCEEDING. THE PARTIES IRREVOCABLY WAIVE, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT THEY MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH ACTION OR
PROCEEDING IN SUCH COURTS, AS WELL AS ANY CLAIM THAT ANY SUCH
ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN
ANY INCONVENIENT FORUM.
(c) Service of Process. THE PARTIES
FURTHER IRREVOCABLY CONSENT TO THE SERVICE OF PROCESS OUT OF ANY OF
THE AFOREMENTIONED COURTS IN THE MANNER AND TO THE ADDRESS
SPECIFIED IN SECTION
13(h) OF THIS AGREEMENT.
(d) Waiver of Jury Trial. EACH OF
THE PARTIES HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED IN CONTRACT,
TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
THE ACTIONS OF ANY PARTY IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE AND ENFORCEMENT THEREOF. EACH OF THE PARTIES HERETO
FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER
WITH ITS LEGAL COUNSEL, AND THAT IT KNOWINGLY AND VOLUNTARILY
WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL
COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE
MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY
TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT. IN THE EVENT OF LITIGATION, THIS
AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE
COURT.
16
(e) Assignment. This Agreement, and
Executive’s rights and obligations hereunder, may not be
assigned by Executive. The Company may assign its rights, together
with its obligations, hereunder only in connection with any sale,
transfer or other disposition of all or substantially all of its
business or assets and to an assignee who assumes such obligations
by law or in writing, only with the written agreement of the
Executive. Subject to the foregoing, this Agreement shall be
binding upon and inure to the benefit of the Parties hereto, and
their respective heirs, legal representatives, successors and
assigns.
(f) Amendment. This Agreement
cannot be amended orally, or by any course of conduct or dealing,
but only by a written agreement duly executed by the
Parties.
(g) Waiver. The failure of either
Party to insist upon the strict performance of any of the terms,
conditions and provisions of this Agreement shall not be construed
as a waiver or relinquishment of future compliance therewith, and
such terms, conditions and provisions shall remain in full force
and effect. No waiver of any term or condition of this Agreement on
the part of either Party shall be effective for any purpose
whatsoever unless such waiver is in writing and signed by such
Party. Unless the written waiver instrument expressly provides
otherwise, no waiver by a Party of any right or remedy or breach by
the other Party in any particular instance shall be construed to
apply to any right, remedy or breach arising out of or related to a
subsequent instance.
(h) Notices. All notices, demands
or other communications desired or required to be given by a Party
to the other Party shall be in writing and shall be deemed
effectively given upon (i) personal delivery to the Party to be
notified, (ii) upon confirmation of receipt of fax or other
electronic transmission, (iii) one business day after deposit with
a reputable overnight courier, prepaid for priority overnight
delivery, or (iv) five days after deposit with the United States
Postal Service, postage prepaid, certified mail, return receipt
requested, in each case to the Party to be notified at the
Company’s principal executive officers in the case of the
Company and at the latest address of the Executive on the books of
the Company in the case of the Executive; or to such other
addresses and to the attention of such other individuals as either
Party shall have designated to the other by notice given in the
foregoing manner.
(i) Entire Agreement. This
Agreement sets forth the entire agreement and understanding of the
Parties relating to the subject matter hereof, and supersedes all
prior agreements, arrangements and understandings, written or oral
between the Parties, relating to the subject matter
hereof.
(j) Affiliate and Control Defined.
As used in this Agreement, the term “affiliate” of
a specified Person shall mean and include any Person controlling,
controlled by or under common control with the specified Person. A
Person shall be deemed to “control”
another Person if such first Person possesses directly or
indirectly the power to direct, or cause the direction of, the
management and policies of the second Person, whether through the
ownership of voting securities, by contract or
otherwise.
17
(k) Captions, Headings and
Cross-References. The section headings contained herein are
for reference purposes and convenience only and shall not in any
way affect the meaning or interpretation of this Agreement. Except
as expressly set forth otherwise, all cross-references to sections
refer to sections of this Agreement.
(l) Severability. In addition to,
and not in conflict with, the provisions of Sections 6(b) and
6(f), the Parties agree that each and every provision of
this Agreement shall be deemed valid, legal and enforceable in all
jurisdictions to the fullest extent possible. Any provision of this
Agreement that is determined to be invalid, illegal or
unenforceable in any jurisdiction shall, as to that jurisdiction,
be adjusted and reformed rather than voided, if possible, in order
to achieve the intent of the Parties. Any provision of this
Agreement that is determined to be invalid, illegal or
unenforceable in any jurisdiction which cannot be adjusted and
reformed shall for the purposes of that jurisdiction, be voided.
Any adjustment, reformation or voidance of any provisions of this
Agreement shall only be effective in the jurisdiction requiring
such adjustment or voidance, without affecting in any way the
remaining provisions of this Agreement in such jurisdiction or
adjusting, reforming, voiding or rendering that provision or any
other provision of this Agreement invalid, illegal or unenforceable
in any other jurisdiction.
(m) Counterpart Execution. This
Agreement may be executed in one or more counterparts each of which
shall be an original document and all of which together shall
constitute one and the same instrument. The Parties acknowledge
that this Agreement may be executed and delivered by means of
electronic signatures and that use and acceptance of electronic
signatures to bind the Parties represents the voluntary agreement
and intention of the Parties to conduct this transaction by
electronic means. The Parties agree that execution and delivery by
electronic means will have the same legal effect as if signatures
had been manually written on this Agreement. This Agreement will be
deemed lawfully executed by the Parties by such action for purposes
of any statute or rule of law that requires this Agreement to be
executed by the Parties to make the mutual promises, agreements and
obligations of the Parties set forth herein legally enforceable.
Facsimile and .pdf exchanges of signatures will have the same legal
force and effect as the exchange of original signatures. THE
PARTIES HEREBY WAIVE ANY RIGHT TO RAISE ANY DEFENSE OR WAIVER BASED
UPON EXECUTION OF THIS AGREEMENT BY MEANS OF ELECTRONIC SIGNATURES
IN ANY PROCEEDING ARISING UNDER OR RELATING TO THIS AGREEMENT. The
Parties agree that the legal effect, validity and enforceability of
this Agreement will not be impaired solely because of its execution
in electronic form or that an electronic record was used in its
formation. The Parties acknowledge that they are capable of
retaining electronic records of this transaction.
IN WITNESS WHEREOF, the Parties hereto
have executed this Executive Employment Agreement as of the date
set forth above.
Signature page follows.
18
|
By:
/s/ Khoso
Baluch
Name:
Khoso Baluch
Title:
Chief Executive Officer
Date:
March 17, 2019
|
EXECUTIVE:
/s/ Xxxxxx
Xxxxxx
Xxxxxx
Xxxxxx
Date:
March 19,
2019
|
|
|
|
APPENDIX A
PRIOR INVENTIONS
None
