EXHIBIT 10.42
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment agreement (Agreement) is made and effective this 23rd
Day of July,1999 by and between National Boston Medical, Inc. (Company) and
Xxxxxx Xxxxxxx (Executive).
NOW, THEREFORE, the parties hereto agree as follows:
1. Employment
The Company hereby agrees to employ the Executive, for a term beginning on the
date of this Agreement and ending July 26, 2001 as its Chief Operating Officer
or at a higher responsible management position with the Company and the
Executive hereby accepts such employment in accordance with the terms of this
Agreement.
Not withstanding the aforesaid, if this Agreement shall not have been terminated
in accordance with the provisions herein on or before July 26, 2001, the
remaining term of the Agreement shall be extended such that each and every
moment of time thereafter, the remaining term shall be one year unless (a) the
Agreement is terminated earlier in accordance with the provisions herein or (b)
on or after July 26, 2001, the Board of Directors or the Executive Committee of
the Company notifies the Executive in writing of its determination to have the
date of this Agreement expire one year from the date of such notification.
In the event of any conflict or ambiguity between the terms of this Agreement
and terms of employment applicable to regular employees, the terms of this
Agreement shall control.
2. Duties of the Executive
The Executive shall devote substantial time, attention and energy to the affairs
of the Company and/or its subsidiaries during the term of this Agreement and
shall have such duties, responsibilities and authority as shall be the character
and dignity appropriate and consistent with the position and title of Chief
Operating Officer or such responsibility or authority as from time to time
additionally authorized by the Board of Directors. The Executive may engage in
other activities, such as activities including serving on the Board of Directors
of other corporations/organizations, and/or advising other
corporations/organizations in each case to the extent that such activities do
not materially detract from or limit the performance of the Executive's duties
under this Agreement, or inhibit in any material way the business of the Company
and its subsidiaries. The Executive will engage in no activity, paid or
otherwise, for a competitor of the Company so long as this Agreement is in
effect. The Executive shall perform all duties in a professional, ethical and
businesslike manner.
The Executive will not be required to render services hereunder outside of the
Boston/Taunton metropolitan area without his approval. Whether or not such
approval is given, The Executive shall be entitled to full compensation as
provided for in this Agreement. The Executive shall have the right to perform
his duties out of any of his personal residences, provided that such does not
result in actions injurious to the Company.
3. Compensation
The Executive will be paid compensation during this Agreement as follows:
A.) A base salary, commencing July 23, 1999 of not less than $100,000 per
year, (or such greater amounts as may be approved by the Board of Directors
or the executive committee in accordance with authority given by the Board
of Directors) payable in installments on a semi-monthly but not less than a
monthly schedule. The Executive's base salary may be increased consistent
with recommendations of the Executive Committee of the Board. At least
annually the Executive Committee shall review the Executive's base salary
for competitiveness and appropriateness in the industry. In no event shall
the Executive's base salary be less than $100,000 on an annual basis.
B.) The Company agrees to pay a Quarterly Bonus of not less than $5,000 per
calendar quarter to the Executive. During the term of this Agreement said
bonus shall be paid in cash no later than the 1st day of each calendar
quarter. The effective date of the quarterly bonus for this Agreement shall
be April 1, 1999, with the first payment due and payable to the Executive
on or before July 1, 1999 and continuing thereafter until the first day of
July 2002. From time to time during the term of this Agreement, the
Executive may receive a greater quarterly bonus if approved by the
Executive Committee; however, the quarterly bonus shall never be less than
$5,000.
C.) In addition to the other payments referred to in this Agreement, the
Executive shall be entitled to receive and participate in an annual
incentive bonus plan. The amount of the Executive's participation and the
benefits paid under the incentive bonus plan shall be based upon goals
recommended by the Executive and approved by the Executive Committee. The
annual incentive bonus plan payments will be paid in cash and the payment
will be made not later than 30 days following the close of the fiscal year
for each year this Agreement is in effect.
D.) In addition to other payments referred to in this Agreement, the
Executive will be granted 400,000 shares of stock of the Company upon
execution of this Agreement and 150,000 additional shares annually upon the
anniversary date of this Agreement (July 23, 1999) for each of the
succeeding years of the initial term of the agreement. The above shares
shall carry an anti-dilution provision allowing the Executive in the event
of any additional stock offerings of the Company, to purchase up to the
number of shares necessary to maintain the Executive's stock position prior
to the offering. Such shares will be made available at 75% of the initial
price of each offering. The initial shares shall vest upon execution and be
delivered not later than August 30, 1999. The additional shares shall vest
and be delivered not later that July 23, 2000; July 23, 2001. Prior to
vesting, the Executive shall be entitled to receive dividends on and vote
the unvested shares. Should this Agreement be terminated prior to July 23,
2001 such shares shall be delivered and vested to the Executive as stated
above.
E.) It is intended that the Executive have the opportunity to attain a
reasonable ownership position of not less than 1.0 % of the outstanding
stock of the Company. In furtherance of this goal and in addition to the
payments referred to in this Agreement, the Executive shall be entitled to
receive discount option grants (the exercise purchase price shall be the
lower of the average price of the NBM stock during the last twelve months
or the current market price as of the date of the option) to purchase the
stock of the Company totaling no less than 750,000 shares over 3 years. The
first such award will be for no less than 250,000 shares with an award date
of July 26, 1999 and each additional year shares shall be awarded each June
1st through the year 2001. The foregoing shall become vested immediately
upon the award of the shares. The Executive shall have the right to
exercise the option by payment in cash or if approved by the Board of
Directors, the Executive may execute a short term note with the Company for
payment of such stock and options. The exercise period of any options shall
be three years from the date of the grant
F.) The Executive may choose once each year of this Agreement to convert
one-third of his annual salary to stock or stock options, the purchase
price shall be the lower of the average price of the NBM stock during the
last twelve months or the current market price as of the date the Executive
chooses to exercise such option.
G.) If any payments due the Executive under this Agreement result in the
Executive's liability for an excise tax ("parachute tax") under Section 49
of the Internal Revenue Code of 1986, as amended (the "Code") the Company
will pay to the Executive, after deducting any Federal, State or local
income tax imposed, the "parachute tax" liability. Such payment shall be
made to the Executive no later than 30 days prior to the due date of the
"parachute tax."
H.) All shares included in this agreement shall carry piggy back
registration rights.
4. Benefits
A.) Holidays: The Executive will be entitled to at least nine (9) paid
holidays each calendar year and twelve (12) personal days. The Company will
notify the Executive on or about the beginning of each calendar year with
respect to the holiday schedule for the coming year. Personal holidays, if
any, will be scheduled in advance subject to the requirements of the
Company. Such holidays must be taken during the calendar year and unused
days shall not carry forward into the next year.
B.)Vacation: The Executive shall be entitled to five (5) weeks or
thirty-five (35) paid vacation days per year effective as of the date of
the Agreement.
C.) Sick Leave: The Executive shall be entitled to sick leave and emergency
leave according to the regular policies and procedures of the Company.
Additional sick leave or emergency leave over and above paid leave provided
by the Company, if any, shall be granted at the discretion of the Executive
Committee of the Board of Directors.
D.) Medical and Group Life Insurance: Company agrees to include Executive
and his family members in the group medical and hospital plan of the
Company and provide group life insurance at no charge to the Executive, in
the amount of $1,000,000 during the term of this Agreement. Executive shall
be responsible for any state or federal tax imposed upon these benefits.
E.) The Company shall provide at its' expense disability insurance for the
Executive for the term of this Agreement.
F.) The Company shall provide at its' expense Officer's and Director's
liability insurance covering the Executive for the term of this Agreement.
Such coverage shall be in the amount of not less than $5 million and shall
be effective not later than September 1, 1999.
G.) Pension and Profit Sharing Plan: The Executive shall be eligible to
participate in any pension or profit sharing plan or other type plan
adopted by the Company for the benefit of its officers and/or regular
employees.
H.) In addition to any other compensation, the Executive will receive an
automobile of his choice not to exceed $800 per month or an automobile
allowance in the amount of $800 per month to be paid to the Executive each
month during the term of this Agreement.
I.) Expense Reimbursement: The Executive shall be entitled to reimbursement
for all reasonable expenses, including travel and entertainment incurred by
the Executive in the performance of his duties. The Executive will maintain
records and written receipts as required by Company policy and reasonably
requested by the Board of Directors to substantiate such expenses. Subject
to the terms of Section 2, the Executive may, at his sole discretion, work
from his residence or a location of his choice. The Company will reimburse
the Executive for reasonable home office use, including but not limited to
an appropriate computer/modem installation.
J.) Cell phone and Pager Reimbursement: The Executive shall be entitled to
reimbursement for cell phone and nation wide pager service or the Company
may at its expense provide the Executive with such service.
K.) Financial and Tax Advice: During (a) the term of this Agreement (b) the
12 month period following the termination of this Agreement as a result of
Death and/or Disability, and (c) the three year period following the
voluntary termination by the Executive with good reason or the involuntary
termination by the Company without cause... the Company shall provide the
Executive (or, if Executive shall have died, his estate) at the Company's
expense, third party professional financial and tax advisory services,
primarily oriented to planning in light of the Executive's entitlement to
compensation and benefits and appropriate in light of circumstances of
Executive or his estate. Executive (or his estate) may select the service
professional of his choice.
5. Termination
A. The Company shall have the right to terminate this Agreement under the
following circumstances: i. Upon the death of the Executive. ii. Upon
notice to the Executive in the event of notice of illness or other
disability which has incapacitated him from performing his duties for 12
consecutive months as determined in good faith by the Board. iii. For good
cause upon notice from the Company. Termination by the Company of the
Executive for "good cause" as used in this Agreement shall be limited to
mean gross negligence, misappropriation or theft of Company funds or
conviction of state or federal offenses which would prevent the Executive
from performance of his duties. With respect to any termination for good
cause by the Company, the specifics of the cause shall be communicated to
the Executive in writing at least thirty (30) days prior to the date on
which the termination is proposed to take effect. The Executive shall be
given the opportunity to correct or respond to such cause.
B. If this Agreement is terminated pursuant to Section 4 (A - iii) above,
Executive's rights and the Company's obligations hereunder shall forthright
terminate except as expressly provided in this Agreement.
C. If this Agreement is terminated pursuant to Section 4 (A - i or ii)
hereof, Executive or his estate shall be entitled to receive 100% of the
Executives salary and incentives for the balance of the term of the
Agreement, together with bonus and other incentives as provided for in this
Agreement.
6. Termination by Executive
The Executive shall have the right to terminate this Agreement with thirty (30)
days written notice the Company given within sixty (60) days of the occurrence
of any of the following events:
A. The Executive is not elected or retained as COO of the Company
B. The Company acts to materially reduce the Executive's position, title,
duties, authority or responsibilities.
C. The Company acts to reduce the compensation, bonus or incentives of the
Executive.
7. Consequences of Breach by the Company
A. If this Agreement is terminated pursuant to Section 5 hereof, or if the
Company shall terminate the Executive or the Executive's duties under this
Agreement in any way that is a breach by the Company, the following shall
apply:
i. The Executive shall receive a cash payment that is equal to the
present value of the Executive's base salary hereunder for the remainder
of the term, payable within 30 days of the date of such termination.
ii. The Executive shall be entitled to bonus payments and benefits as
provided in Section 3 (it being understood, however, that all such bonus
payments, if made pursuant to this clause, shall be paid in cash
regardless of whether or not such payments exceed the cash limit.
iii. All stock options and common stock and restricted stock granted by
the Company to the Executive under this Agreement shall accelerate and
become immediately vested and exercisable.
B. The parties believe that because of the limitations of Section 5 the
above payments do not constitute "Excess Parachute Payments" under section
280G of the Internal Revenue Code of 1954, as amended (the Code).
Notwithstanding such belief, if any benefit is determined to be an "Excess
Parachute Payment" the Company shall pay the Executive an additional
amount (Tax Payment) such that (x) the excess of all Excess Parachute
Payments (including payment under this sentence) over the sum of the
excise tax thereon under section 4999 of the Code and under applicable
state law is equal to (y) the excess of all Excess Parachute Payments
(excluding payments under this sentence) over income tax thereon under
subtitle A of the Code and under applicable state law provided that the
Company shall not be obligated to make tax payment in excess of the value
of 6.6667 Compensation Years. For the purposes hereof, the value of a
Compensation Year, including stock options and bonus entitlements, is
defined as equal two (2) times the base salary set forth in this
Agreement.
8. Change of Control
If, within twenty-four (24) months following a change of control, the Executive
is terminated, the termination shall be deemed a "Change of Control
Termination." For the purpose of this paragraph... (a) the delivery of a notice
of termination by the Company... within 24 months of a Change of Control and (b)
a Constructive Discharge within 24 months following a Change of Control will
also be deemed a Change of Control Termination. In the event of a Change of
Control Termination, the Company will pay to the Executive a lump sum payment of
299% of the Executive's average annual base salary plus both quarterly and
annual incentive bonuses during the preceding 3 year period. In the event that a
Change of Control Termination occurs before the Executive completes three (3)
years of service, the lump sum payment will be valued at 299% of the Executive's
average annual base salary plus both quarterly and annual incentive bonuses
during all years of service. Additionally, any options and or restricted stock
granted to the Executive shall become fully vested as of the date of the Change
of Control Termination. Provided further, the Executive will receive a cash
payment equal to the value
of any options anticipated to be granted... within three (3) years following the
Change of Control Termination.
If any portion of any payment or distribution by the Company, to or for the
benefit of the Executive, whether paid or payable or distributed or
distributable pursuant to the terms of this section ... shall be subject to the
excise tax imposed by section 4999 of the (Internal Revenue) Code, or any
interest or penalties are incurred by the Executive with respect to such excise
tax... the Company shall pay to the Executive an additional payment (the
Gross-up Payment) in an amount such that after the payment of such Excise Tax,
including, without limitation, any income tax and excise tax imposed on the
Gross-up payment, the Executive retains an amount including the Gross-up Payment
equal to the total payment hereunder without regard to the Gross-up Payment.
"Change of Control" shall be deemed to have occurred if at any time or from time
to time after the date of this agreement:
i. Any "person" or "group" ... is or becomes the "beneficial owner" ...
directly or indirectly, of securities of the Company representing 40% or
more of the combined voting power of the Company's then outstanding
securities... or,
ii. The stockholders of the Company approve a merger or consolidation
with any other corporation, other than a merger or consolidation which
would result in the voting securities of the Company... continuing to
represent... more than 50% of the combined voting power of the voting
securities or such surviving entity outstanding immediately after such
merger or consolidation, or the stockholders of the Company approve a
plan of complete liquidation of the Company or an agreement for the sale
or disposition by the Company of all or substantially all of the
Company's assets...or
iii. The Company has a change in Board Majority unapproved by at least
three-fourths of the directors.
9. Remedies
The Company recognizes that because of the Executive's special talents, stature,
and opportunities in the industry, and because of the creative nature of and
compensation practices of the industry and the material impact that individual
projects can have on a company's results of operations, in the event of
termination by the Company hereunder or in the event of termination by the
Executive before the end of the agreed term, the Company acknowledges and agrees
that the provisions of this Agreement regarding further payments of base salary,
bonuses and the exercisability of stock options constitute fair and reasonable
provisions for the consequences of such termination, do constitute a penalty and
such payments and benefits shall not be limited or reduced by amounts that the
Executive might earn or be able to earn from any other employment or ventures
during the remainder of the agreed term of this Agreement.
10. Notices
Any notice required by this Agreement or given in connection with it, shall be
in writing and shall be given to the appropriate party by personal delivery or
be certified mail, postage pre-paid, or recognized overnight delivery service;
If to the Company:
National Boston Medical, Inc.
00 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn.: Xxxxxx Xxxxx, CEO
If to the Executive:
Xx. Xxxxxx Xxxxxxx
000 Xxxxxxxxx Xxx.
Xxxxxxxx, XX 00000
11. Final Agreement
This Agreement terminates and supersedes all prior understandings or agreements
on the subject matter hereof. This Agreement may be modified only by a further
writing that is duly executed by both parties.
12. Governing Law
This Agreement shall be construed and enforced in accordance with the laws of
the Commonwealth of Massachusetts.
13. Headings
Headings in this Agreement are provided for convenience only and shall not be
used to construe meaning or intent.
14. Binding Agreement
This Agreement shall be binding upon and inure to the benefit of the Executive,
his heirs, distributees and assigns.
15. Severability
If any term of this Agreement is held by a court of competent jurisdiction to be
invalid or unenforceable, then this Agreement, including all of the remaining
terms, will remain in full force and effect as if such invalid or unenforceable
term had never been included.
16. Arbitration
The parties agree that they will use their best efforts to amicably resolve any
dispute arising out of or relating to this Agreement. Any controversy, claim or
dispute that cannot be so resolved shall be settled by final binding arbitration
in accordance with the rules of the American Arbitration Association and
judgement upon the award rendered by the arbitrator or arbitrators may be
entered in any court having jurisdiction thereof. Any such Arbitration shall be
concluded in such place as shall be mutually agreed upon by the parties. Within
fifteen (15) days of the commencement of the arbitration, each party shall
select one person to act as arbitrator, and the two arbitrators shall select a
third arbitrator within ten (10) days of their appointment. Each party shall
bear its own costs and expenses and an equal share of the arbitrator's expenses
and administrative fees of arbitration.
17. Protection of the Company's Interests
During the term of this Agreement, the Executive shall not directly or
indirectly engage in competition with the Company. At no time shall the
Executive divulge, furnish, or make accessible to any person any information of
a confidential or proprietary nature obtained by him while in the employ of the
Company except as necessary in the performance of his duties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
/s/ Xxxxxx Xxxxxxx
-----------------------
Xxxxxx Xxxxxxx
Executive's Signature and Acceptance
/s/ Xxxxxx X. Xxxxx
---------------------------
Xxxxxx X. Xxxxx
Chairman and CEO
National Boston Medical, Inc.
