AMENDMENT TO EMPLOYMENT AGREEMENT
AMENDMENT
TO EMPLOYMENT AGREEMENT
THIS AMENDMENT (the “Amendment”) to the
Employment Agreement (as such term is defined below) is entered into as of the
1st day of November, 2009 (the “Amendment Effective Date”) by and between InVivo
Therapeutics Corporation, a Delaware corporation (the “Company”), and Xxxxx
Xxxxxxxx (“you” or “Executive”). The Company and Executive are
occasionally referred to collectively herein as the
“Parties.”
WHEREAS, the Company and Executive are
parties to that certain Employment Agreement dated as of May 31, 2008 (the
“Employment Agreement”); and
WHEREAS,
the Company and Executive desire to modify the terms of the Employment Agreement
effective as of the Amendment Effective Date as more particularly described
herein.
NOW, THEREFORE, in consideration of the
mutual covenants made herein, and other consideration, the receipt and
sufficiency of which are hereby acknowledged and agreed, the Employment
Agreement be and hereby is amended as set forth below.
1. Defined Terms. All
terms used in this Amendment and not otherwise defined herein, shall have the
meanings ascribed to such terms in the Employment Agreement.
2. Base
Salary. Effective as of the Amendment Effective Date, the Base
Salary shall be $375,000 (the “2010 Base Salary”).
3. Annual
Bonus.
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(a)
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2009
Bonus. The Parties agree and acknowledge that
notwithstanding Section 3(b) of the Employment Agreement, the Annual Bonus
of the Executive for the 2009 Term (as such term is defined below) shall
be payable upon the completion of the following milestones and payable in
the following amounts:
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Milestone
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Percentage of the 2009 Base Salary
(as such term is defined below)
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|||
Company
conducts Large Primate Study (16 Animals)
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10 | % | ||
Company
applies to FDA for Human Studies
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10 | % | ||
Company
raises at least $4,000,000 in connection with the issuance of Equity
Securities (as such term is defined below) from the Company’s inception to
the end of the 2009 Term
|
10 | % | ||
TOTAL
|
30 | % |
The Board
of Directors of the Company shall in good faith determine whether a milestone
has been achieved. Upon achievement by Executive of a milestone
specified above, the Company shall promptly pay the portion of the Annual Bonus
attributable to such milestone.
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(b)
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2010
Bonus. The Parties agree and acknowledge that
notwithstanding Section 3(b) of the Employment Agreement, the Annual Bonus
of the Executive for the 2010 Term shall be payable upon the completion of
the following milestones and payable in the following
amounts:
|
Milestone
|
Percentage of the 2009 Base Salary
(as such term is defined below)
|
|||
Company
completes Large Primate Study (Final Report)
|
10 | % | ||
Company
raises at least $4,000,000 in connection with the issuance of Equity
Securities (as such term is defined below) during the 2010
Term
|
10 | % | ||
Company
continues the FDA Process for Human Studies
|
10 | % | ||
Company
obtains FDA approval to begin a human study
|
100 | % | ||
TOTAL
|
130 | % |
The Board
of Directors of the Company shall in good faith determine whether a milestone
has been achieved. Upon achievement by Executive of a milestone
specified above, the Company shall promptly pay the portion of the Annual Bonus
attributable to such milestone.
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(c)
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Definitions. The
following terms shall have the meanings ascribed to such terms as defined
herein:
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“2009
Term” shall mean the 12 month period commencing on November 1,
2008.
“2009
Base Salary” is $275,000.
“2010
Term” shall mean the 12 month period commencing on November 1,
2009.
“Equity
Securities” shall mean equity securities of the Company or any evidences of
indebtedness, shares or other securities which directly or indirectly convert
into or are exchangeable for equity securities of the Company.
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4. Option
Grant. Subject to approval by the Company’s Board of Directors
and you and the Company entering into the Company’s standard form of
Non-Qualified Stock Option Agreement (the “Option Agreement”), effective as of
the Amendment Effective Date the Company will grant to you an option
to purchase up to Fifty Seven Thousand (57,000) shares of the Company’s common
stock, $0.001 par value per share (“Common Stock”), at a per
share exercise price equal to the per share fair market value of the
Common Stock (the “Option”). The Option will vest in 4 equal yearly
installments pursuant to the terms of the Option Agreement.
5. Counterparts; Full
Authority. This Amendment may be executed in counterparts,
each of which shall be an original, but, when taken together, constitute but one
and the same Amendment. The signatories represent and warrant that
they have full authority to enter into this Amendment on behalf of the entity
for which they have signed. Except as specifically amended hereby,
the terms of the Employment Agreement shall remain in full force and
effect.
IN
WITNESS WHEREOF, the parties have executed this Amendment effective as of the
Amendment Effective Date.
INVIVO
THERAPEUTICS CORPORATION
By:
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Xxxxxxx
Xxxxxxx, member of Board of
Directors
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EXECUTIVE
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Xxxxx
Xxxxxxxx
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