EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.4
THIS EXECUTIVE EMPLOYMENT AGREEMENT
(this “Agreement”), is made as of July 6,
2021 (the “Effective
Date”), by and between Tenax Therapeutics, Inc., a
Delaware corporation, with its principal place of business in North
Carolina (the “Company”), and Xxxxxxxxxxx Xxxxxx
Xxxxxxxx (the “Executive”).
W
I T N E S S E T H:
WHEREAS, the Company desires to employ
the Executive as its Chief Executive Officer and provide adequate
assurances to the Executive and the Executive desires to accept
such employment on the terms set forth below.
NOW, THEREFORE, in consideration of the
foregoing, of the mutual promises herein, and of other good and
valuable consideration, the receipt and sufficiency of which the
parties acknowledge, the Company and the Executive agree as
follows:
1. Employment. As of July 6, 2021
(the “Employment Start
Date”), the Company hereby employs the Executive and
the Executive hereby accepts employment with the Company to perform
the Transition Services (as defined below). As of July 14, 2021
(the “CEO Start
Date”), the Company hereby employs the Executive and
the Executive hereby accepts employment as Chief Executive Officer
of the Company upon the terms and conditions of this
Agreement. The
Board of Directors of the Company (the “Board”) will also appoint the
Executive as a member of Board, effective July 14,
2021.
2. Duties. From and after the
Employment Start Date and prior to the CEO Start Date, the
Executive will, in the manner reasonably requested by the Board,
assist the Board in smoothly transitioning the duties of the
Company’s retiring Chief Executive Officer to the Executive
(the “Transition
Services”). From and after the CEO Start Date, the
Executive will have such authority, and will faithfully perform all
of the duties, normally associated with the position of Chief
Executive Officer and a member of the Board, including but not
limited to all duties set forth in this Agreement, and all
additional duties consistent with such position that are reasonably
prescribed from time to time by the Board. The Executive shall
devote such business time and attention as reasonably necessary to
perform his duties and responsibilities on behalf of the Company
and in furtherance of its best interests; provided, however, that
he, subject to his obligations hereunder, shall be permitted to
make personal investments, perform reasonable volunteer services
and serve on the boards of directors (or similar governing bodies)
of nonprofit entities and/or for profit entities that are not in
competition with the Company as long as any such activities do not
interfere in any material way with his duties and responsibilities,
including but not limited, those set forth in this Agreement. The
Executive shall comply with all Company policies, standards, rules
and regulations (the “Company
Policies”) as may exist from time to time and all
applicable government laws, rules and regulations that are now or
hereafter in effect.
3. Term. Unless earlier terminated
as provided herein, the initial term of this Agreement shall
commence on the Employment Start Date and shall continue until the
one-year anniversary of the Employment Start Date (the
“Initial Term”).
After the Initial Term, this Agreement shall automatically renew
for successive one-year terms on the same terms and conditions set
forth herein unless: (a) earlier terminated or amended as provided
herein; or (b) either party gives the other written notice of
non-renewal at least ninety (90) days prior to the end of the
Initial Term or any renewal term of this Agreement, in which case,
this Agreement shall terminate on the expiration of the
then-current Term. The Initial Term of this Agreement and all
applicable renewals thereof are referred to herein as the
“Term.”
4. Compensation. During the Term,
as compensation for the services rendered by the Executive under
this Agreement, the Executive shall be entitled to receive the
following (all payments are subject to applicable
withholdings):
(a) Base Salary. The Executive
shall receive an annual salary of Three Hundred Seventy-Five Thousand Dollars and
00/100 Dollars ($375,000.00) (less applicable withholdings)
(“Base Salary”)
payable in accordance with the payroll policies of the Company as
such policies may exist from time to time or as otherwise agreed
upon by the parties. The Board shall review, on an annual basis,
the Executive’s salary and may increase or decrease such
salary as the Board deems appropriate; provided, however, that any
decrease shall only be effective if it is a result of an
across-the-board decrease affecting all senior executives as a
group.
(b) Bonuses. Each fiscal year
during the Term, the Executive shall be entitled to an annual
bonus, the amount of which is based on percentage achievement of
annual goals set by the Company, after consultation with the
Executive, at the beginning of each fiscal year for such fiscal
year (“Annual
Bonus”), which achievement shall be determined as of
the last day of such fiscal year. For the fiscal year during which
the Employment Start Date occurs, the Executive shall be entitled
to a prorated Annual Bonus based on the same criteria but the
amount of which shall be reduced based on the percentage of the
fiscal year the Executive served in his position, which shall
include only the time from the Employment Start Date through the
last of such fiscal year. If the Executive achieves one hundred
percent (100%) of the annual goals during the Term, the Annual
Bonus shall be fifty percent (50%) of his Base Salary
(“Target
Bonus”). There is no cap on the Annual Bonus for
exceeding one hundred percent (100%) of annual goals; for example,
an achievement of two hundred percent (200%) of annual goals would
result in an Annual Bonus equal to one hundred percent (100%) of
his Base Salary. The Annual Bonus shall be paid in accordance with
the Company’s regular bonus payment procedures, and, in all
events, will be paid no later than sixty (60) days following the
end of the fiscal year in which the Annual Bonus was earned. Except
as otherwise set forth in Section 5(d)(ii)(C), in order to be
eligible to receive the Annual Bonus, the Executive must be
employed by the Company on the last day of the fiscal year in which
the Annual Bonus was earned.
(c) Benefits. The Executive shall
be entitled to receive those benefits provided from time to time to
other executive employees of the Company, in accordance with the terms and
conditions of the applicable plan documents, provided that the
Executive meets the eligibility requirements thereof.
(d) Business Expenses. The Company
shall pay, or reimburse the Executive for, all reasonable and
appropriate expenses incurred by the Executive directly related to
conduct of the business of the Company; provided that the Executive
complies with the Company’s policies for the reimbursement or
advancement of business expenses that are now or hereafter in
effect. The Company shall provide such payments or reimbursements
within thirty (30) days following the Executive’s incurrence
of the expense. The Company will reimburse Executive for the
attorney’s fees he has incurred in connection with the review
and negotiation of this Executive Employment Agreement in an amount
not to exceed $10,000.
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(e) Option Plan and Awards under the
Plan.
(i) Option Plan. The Compensation
Committee of the Board has adopted a Plan for Employee Inducement
Stock Option Grants (the “Plan”) pursuant to which it is
authorized to grant option awards to certain new employees from
time to time as inducements material to them entering into
employment with the Company. To ensure compliance with the Plan
with respect to the stock options being granted to the Executive in
connection with his employment with the Company, each of the
Company and the Executive agrees and acknowledges that prior to the
Executive’s appointment by the Company as an employee and a
member of the Board pursuant to this Agreement, the Executive has
had no employment or consulting relationship with the Company (or
its Affiliates or Subsidiaries as defined in the Plan) and did not
serve as a member of the Board of the Company (or its Affiliates or
Subsidiaries as defined in the Plan).
(ii) Awards
under the Plan. On the Effective Date, the Compensation
Committee of the Board has approved stock options under the Plan
entitling the Executive to purchase up to: (i) 250,000 shares of
Company Common Stock with a time-based vesting schedule (the
“Time-Based
Option”); and (ii) 100,000 shares of Company Common
Stock with a performance-based vesting schedule (the
“Performance-Base
Option”, together with the Time-Based Option, the
“Options”). The
Options will be granted at the Fair Market Value (as defined in the
Plan) as of the Employment Start Date. The Time-Based Option shall
vest over a four-year period with the following vesting schedule:
25% of the Option (62,500 shares of Company Common Stock) vesting
on the anniversary of the Employment Start Date and an additional
25% of the Option (62,500 shares of Company Stock) shall vest on
each of the following three anniversaries of the Employment Start
Date provided that the Executive remains continuously employed with
the Company through each such vesting date. 50,000 shares of
Company Common Stock underlying the Performance-Based Option shall
vest if the Company has initiated a Phase 3 clinical trial for
Levosimendan by June 30, 2022 and an additional 50,000 shares of
the Company Common Stock underlying the Performance-Based Option
shall vest if the Company has initiated a Phase 3 clinical trial
for Imatinib by June 30, 2022. A Phase 3 clinical trial shall be
deemed initiated once the first patient has been enrolled in such
clinical trial. The terms and conditions for the Options will be
set forth in Stock Option Agreements between the Executive and the
Company in the forms set forth on Exhibit A (for Time-Based Stock Option)
and Exhibit B (for
Performance-Based Stock Option) and shall be subject to and
governed in all respects by the Plan and the respective Stock
Option Agreement. The Options shall be granted as incentive stock
options (“ISOs”), provided to the
extent that any portion of an option does not qualify for ISO
treatment on the Employment Start Date, such portion shall instead
be granted as a non-qualified stock option. The Company agrees that
it shall (i) promptly following the issuance of the Options, file a
Registration Statement on Form S-8 with the Securities and Exchange
Commission with respect to the Options and (ii) within 12 months
following the issuance of the Options, seek approval from the
Company’s stockholders of the issuance of those Options that
qualify as ISOs in the manner required by the Internal Revenue Code
of 1986, as amended.
5. Termination and Obligations of the
Company upon Termination. This Agreement and the
Executive’s employment by the Company shall or may be
terminated, as the case may be, as set forth below.
(a) Termination upon Expiration of the
Term. This Agreement and the Executive’s employment by
the Company shall terminate upon the expiration of the
Term.
(b) Termination by the Executive.
The Executive may terminate this Agreement and his employment with
the Company as follows:
(i) Voluntary Resignation. For any
reason other than Good Reason thirty (30) days after written notice
of the Executive’s resignation is received by the Company
(“Voluntary
Resignation”).
(ii) For
Good Reason. For purposes of this Agreement, the
Executive’s termination of his employment will be deemed to
have been for “Good
Reason” if the Executive resigns within six (6) months
after any of the following conditions having arisen without his
prior written consent and after having given the Company written
notice of the existence of such condition within ninety (90) days
of the Executive’s knowledge of the existence of the
condition and providing the Company with thirty (30) days to remedy
the condition:
(A)
a material
diminution in the Executive’s base salary;
(B)
a material
diminution in the Executive’s authority, duties, or
responsibility by the assignment to him of authority, duties, or
responsibilities materially inconsistent with his position as Chief
Executive Officer;
(C)
the
Executive’s place of employment is relocated by more than
fifty (50) miles; or
(D)
any breach by the
Company of any material provision of this Agreement or any other
written agreement with the Executive.
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(c) Termination by the Company. The
Company may terminate this Agreement and the Executive’s
employment by the Company immediately upon written notice to the
Executive (or his personal representative):
(i) Without Cause. At any time and
for any reason other than reasons set forth in Sections 5(c)(ii)
(Death), (iii) (Disability), or (iv) (Cause), (“Without Cause”);
(ii) Death.
Upon the death of the Executive, in which case this Agreement shall
terminate immediately; provided that, such termination shall not
prejudice any benefits payable to the Executive’s spouse or
beneficiaries which are fully vested as of the date of death
(“Death”);
(iii) Disability.
If the Executive is “permanently disabled” (as defined
herein), in which case this Agreement shall terminate immediately;
provided that, such termination shall not prejudice any benefits
payable to the Executive, the Executive’s spouse or
beneficiaries which are fully vested as of the date of the
termination of this Agreement. For purposes of this Agreement, the
Executive shall be considered “permanently disabled”
when a qualified medical doctor mutually acceptable to the Company
and the Executive or the Executive’s personal representative
shall have certified in writing that the Executive has been unable,
because of a medically determinable physical or mental disability
or illness, to perform substantially all of the Executive’s
duties, with or without a reasonable accommodation, for more than
one hundred eighty (180) calendar days measured from the last full
day of work (“Disability”);
(iv)
For “Cause”.
The term “Cause”, as used herein, shall
mean:
(A)
Any willful
material breach of the terms of this Agreement, or of any other
written agreement with the Executive, by the Executive, which
breach is not cured by the Executive within thirty (30) days after
the Company provides the Executive with written notice specifying
the nature of such breach;
(B)
The
Executive’s material misappropriation of the Company’s
tangible or intangible property, or material and intentional breach
of the Confidentiality Agreement (provided, however, that for this
purpose, the Executive will not be deemed to have breached the
Confidentiality Agreement in connection with any disclosure made
pursuant to a court order, subpoena or other legal
obligation);
(C)
The
Executive’s material failure to comply with the Company
Policies or any other reasonable policies and/or directives of the
Board, which failure is not cured by the Executive within thirty
(30) days after the Company provides the Executive with written
notice specifying the nature of such failure;
(D)
The
Executive’s abuse of illegal drugs or any illegal substance,
or the Executive’s abuse of alcohol in any manner that
materially interferes with the performance of the Executive’s
duties under this Agreement;
(E)
Any dishonest or
illegal action (including, without limitation, embezzlement) by the
Executive which may result in material harm to the interests and
well-being of the Company, including, without limitation, harm to
its reputation, business, or financial condition;
(F)
The
Executive’s failure to cooperate with a bona fide internal
investigation or an investigation by regulatory or law enforcement
authorities, after being instructed by the Company to cooperate, or
the willful destruction or failure to preserve documents or other
materials known to be relevant to such investigation or the
inducement of others to fail to cooperate or to produce documents
or other materials in connection with such investigation;
or
(G)
The
Executive’s failure to disclose any conflict of interest
known to the Executive that the Executive may have with the Company
in a transaction between the Company and any third party which
failure is detrimental to the interest and well-being of the
Company.
(d)
Obligations upon
Termination.
(i) Upon the
termination of this Agreement and the Executive’s employment
with the Company pursuant to the expiration of the Term following
the Executive’s notice of non-renewal pursuant to Section 3,
by the Executive pursuant to Section 5(b)(i) (Voluntary
Resignation), or by the Company pursuant to Section 5(c)(ii)
(Death), (iii) (Disability) or (iv) (Cause), the Company shall have
no further obligations hereunder other than the payment of all
compensation and other benefits payable to the Executive (or his
estate or heirs) through the date of such termination in accordance
with the Company’s normal payroll cycle and terms of the
applicable benefit plans and programs in existence at the time the
Executive’s employment is terminated.
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(ii) Upon
termination of this Agreement and the Executive’s employment
with the Company by the Company pursuant to Section 5(c)(i)
(Without Cause), upon expiration of the Term following the
Company’s notice of non-renewal pursuant to Section 3, or by
the Executive pursuant to Section 5(b)(ii) (Good Reason), the
Executive shall be entitled to the following, with those benefits
described in Sections 5(d)(ii)(B), (C) and (D) specifically
conditioned upon Executive’s execution and non-revocation of
a valid release under Section 6 and compliance with his obligations
under Sections 7, 8, and 9:
(A)
payment of all
compensation and other benefits payable to the Executive through
the date of such termination in accordance with the Company’s
normal payroll cycle and terms of the applicable benefit plans and
programs in existence at the time the Executive’s employment
is terminated;
(B)
payment of an
amount equal to twelve (12) months of his then current Base Salary
(less applicable withholdings), payable in a lump sum on the
sixtieth (60th) day following
the date of the Executive’s separation from service (the
“Severance Payment
Date”);
(C)
a lump sum payment
in an amount equal to the Target Bonus for the fiscal year in which
such termination occurred, multiplied by a fraction, the numerator
of which is the number of days during which the Executive was
employed by the Company in the fiscal year of his termination and
the denominator of which is 365 (less applicable withholdings),
with such payment to be made on the Severance Payment Date;
and
(D)
reimbursement for
premium payments the Executive makes under the Consolidated Budget
Reconciliation Act (“COBRA”) to continue the Executive
and, if applicable, the Executive’s family’s health
insurance coverage under the Company’s group health insurance
plan for twelve (12) months from the date of termination.
Reimbursements for COBRA premium payments shall begin on the
Severance Payment Date and shall be made as soon as possible
following the Executive’s submission to the Company of proof
of timely payments, but not later than thirty (30) days after the
Executive’s submission of proof of timely payments; provided,
however, all such claims for reimbursement shall be submitted by
the Executive and paid by the Company no later than fifteen (15)
months following the termination of the Executive’s
employment. Any obligation for the Company to make payments for
COBRA reimbursement under this Agreement shall immediately cease
when the Executive becomes eligible for health insurance from a
subsequent employer, and the Executive shall promptly notify the
Company of such subsequent eligibility. If the Executive desires
COBRA coverage, the Executive shall bear full responsibility for
applying for COBRA coverage and nothing herein shall constitute a
guarantee of COBRA benefits. Under no circumstances will the
Executive be entitled to a cash payment or other benefit in lieu of
reimbursements for the actual costs of premiums for COBRA
continuation hereunder. The amount of expenses eligible for
reimbursement during any calendar year shall not be affected by the
amount of expenses eligible for reimbursement in any other calendar
year.
6. Release of Claims.
Notwithstanding any provision of this Agreement to the contrary
(other than the last sentence of this Section 6), the
Company’s obligation to provide the payments and benefits
under Section 5(d)(ii)(B),(C) and (D) of this Agreement is
conditioned upon the Executive’s execution and non-revocation
of an enforceable release of claims and his compliance with his
obligations under Sections 7, 8, and 9 of this Agreement. If the
Executive chooses not to execute such a release, timely revokes his
execution of the release, or fails to comply with his obligations
under Sections 7, 8, and 9 of this Agreement, then the
Company’s obligation to compensate him ceases upon the
termination of his employment except as to amounts due at the time
pursuant to Section 5(d)(ii)(A). The Company shall provide the
release of claims to the Executive within seven (7) days of his
separation from service, and the Executive must execute it within
the time period specified in the release (which shall not be longer
than forty five (45) days from the date of receipt). Such release
shall not be effective until any applicable revocation period has
expired.
7. Confidential Information and
Competitive Business Activities. The Executive acknowledges
that by virtue of his employment and position with the Company, he
has or will have access to Confidential Information (as defined in
the Employee Non-Disclosure and Invention Assignment Agreement
executed by the Executive, effective as of the Employment Start
Date (the “Confidentiality
Agreement”)), of the Company, including valuable
information about its business operations and entities with which
it does business in various locations, and has developed or will
develop relationships with parties with whom it does business in
various locations. The Executive also acknowledges that the
Confidential Information and competitive business activities
provisions set forth in the Confidentiality Agreement, are
reasonably necessary to protect the Company’s legitimate
business interests, are reasonable as to the time, territory and
scope of activities which are restricted, do not interfere with
public policy or public interest and are described with sufficient
accuracy and definiteness to enable him to understand the scope of
the restrictions imposed on him. The Executive acknowledges that
his failure to abide by the provisions set forth in the
Confidentiality Agreement and the provisions set forth under
Sections 8 and 9 of this Agreement would cause irreparable harm to
the Company for which legal remedies would be inadequate.
Therefore, in addition to any legal or other relief to which the
Company may be entitled by virtue of the Executive’s failure
to abide by the provisions set forth in the Confidentiality
Agreement: (i) the Company will be released of its obligations
under this Agreement to make any post-termination payments; (ii)
the Company may seek legal and equitable relief, including but not
limited to preliminary and permanent injunctive relief, for the
Executive’s actual or threatened failure to abide by these
provisions; (iii) the Executive will return all post-termination
payments received pursuant to this Agreement; and (iv) the
Executive will indemnify the Company for all reasonable and
documented expenses, including attorneys’ fees, incurred by
it in successfully enforcing these provisions. In the event that
the Company exercises its right to discontinue payments under this
provision and/or the Executive returns all post- termination
payments received pursuant to this Agreement, the Executive shall
remain obligated to abide by the provisions set forth in Section 3
in the Confidentiality Agreement.
8. Non-Competition. In addition to
the provisions set forth in the Confidentiality Agreement and
obligations under Section 7 of this Agreement:
(a) Employee
understands that the nature of Employee’s position gives
Employee access to and knowledge of Confidential Information (as
defined in the Confidentiality Agreement) and places Employee in a
position of trust and confidence with the Company. Employee further
understands and acknowledges that the Company’s ability to
reserve its Confidential Information, good will, and trade secrets
for its exclusive knowledge and use is of great competitive
importance and commercial value to the Company, and that improper
use or disclosure by Employee would likely result in unfair or
unlawful competitive activity. Therefore, given the aforementioned
and in consideration for the promises provided to Employee by the
Company herein, during the Restricted Period (as defined below),
Employee shall not engage in Competitive Activity (as defined
below) in the Prohibited Territory (as defined below).
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(b) The
“Restricted
Period” means: (i) the period of time that Employee is
employed by the Company; and (ii) the 12-month period following the
last day of Employee’s employment with the Company (such last
day referred to herein as the “Separation Date”).
(c) “Competitive Activity”
means: performing services in any role or capacity, whether as
an officer, director, shareholder, owner, partner, joint venturer,
employee, independent contractor, consultant, advisor, sole
proprietorship, agent, or representative for a Competitor of the
Company that are the same as or substantially similar to the work
Employee performed on behalf of the Company at any time during the
12 months prior to the Separation Date. Notwithstanding the
preceding, passively owning less than 5% of a public company shall
not constitute by itself Competitive Activity or assisting others
to engage in Competitive Activity.
(d) “Competitor” means: an individual,
business, corporation, association, firm, undertaking, company,
partnership, joint venture, hospital, organization or other entity
other than the Company that either (A) conducts Restricted Business
within the Prohibited Territory or (B) provides or sells goods or
services within the Prohibited Territory which are otherwise
competitive with the goods or services provided by the
Company.
(e) The
“Restricted
Business” means: the research, development, marketing,
and sale of cardiovascular and pulmonary hypertension focused
therapeutic products and any business engaged in by the Company as
of the Separation Date.
(f) “Prohibited
Territory” means: (i) the State of North Carolina; and
(ii) within a fifty (50) mile radius of any location in the United
States in which Employee provided services at the time of, or
during the 12-month period prior to, the Separation
Date.
9. Non-Solicitation. In addition
to the provisions set forth in the Confidentiality Agreement and
obligations under Sections 7 and 8 of this Agreement:
(a) Employee
understands and acknowledges that because of Employee’s
experience with and relationship to the Company, Employee will have
access to and will learn about much or all of the Company’s
referral sources, customer information, and investor information,
including, but not limited to, Confidential Information. Employee
understands and acknowledges that the Company’s relationships
with its referral sources, customers, and investors is of great
competitive value, and that the Company has invested and continues
to invest substantial resources in developing and preserving these
relationships, and the loss of any such relationship or goodwill
will cause significant and irreparable harm to the Company.
Therefore, given the aforementioned and in consideration for the
promises provided to Employee by the Company herein, during the
Restricted Period, Employee shall not: (i) solicit, encourage,
or cause any Restricted Supplier (as defined below) not to do
business with or to reduce any part of its business with the
Company; (ii) solicit, encourage, or cause any Restricted Referral
Source (as defined below) not to do business with the Company or to
reduce any part of the volume of business referred to the Company;
(iii) solicit, encourage, or cause any investor or lender not to do
business with or to reduce any part of its business with the
Company; (iv) make, publish, or communicate to any person or entity
or in any public forum any defamatory or disparaging remarks,
comments, or statements about the Company or its business, owners,
or agents, whether in writing, verbally, or on any online forum;
(v) solicit, encourage, or cause any Restricted Client (as defined
below) not to do business with or to reduce any part of its
business with the Company; (vi) market, sell or provide to any
Restricted Client any services or products that are competitive
with or a substitute for the Company’s services or products;
(vii) solicit, encourage, or cause any Restricted Client (as
defined below) not to do business with or to reduce any part of its
business with the Company; (viii) solicit, encourage, or cause any
Restricted Employee (as defined below) to leave the Company; or
(ix) assist or encourage anyone else to engage in any of the
conduct prohibited by this Section 9.
(b) “Restricted Client” means: (i) any
Company client with whom Employee had material business contact at
any time during the twelve (12) months prior to Employee’s
last day of employment with the Company; and (ii) any Company
client for whom Employee provided services at any time during the
twelve (12) months prior to Employee’s last day of employment
with the Company.
(c) “Restricted Referral Source” means
any business entity or person that operates or does business within
the Prohibited Territory and that has referred business to the
Company, if such referred business constitutes at least twenty
percent (20%) of the Company’s aggregate gross revenue during
the 12-month period prior to the Separation Date.
(d) “Restricted Supplier” means any
Company supplier or vendor that operates or does business within
the Prohibited Territory, if the materials, goods, or services
purchased by the Company from such supplier or vendor constitute at
least twenty percent (20%) of the Company’s aggregate
purchases during the 12-month period prior to the Separation
Date.
(e) “Restricted
Employee” means each Company employee with whom
Employee had material business contact or about whose abilities
Employee learned while employed by the Company, and whom the
Company employed at any time during the then-previous 12 months.
Employee understands and acknowledges that the Company has extended
and continues to expend significant time and expense in recruiting
and training its employees and that the loss of such employees
would cause significant and irreparable harm to the
Company.
10.
Representations and
Warranties.
(a) The Executive
represents and warrants to the Company that the Executive’s
performance of this Agreement and as an employee of the Company
does not and will not breach any non-competition agreement or any
agreement to keep in confidence proprietary information acquired by
the Executive in confidence or in trust prior to the Executive's
employment by the Company. The Executive represents and warrants to
the Company that the Executive has not entered into, and agrees not
to enter into, any agreement that conflicts with or violates this
Agreement.
(b) The Executive
represents and warrants to the Company that the Executive has not
brought and shall not bring with the Executive to the Company, or
use in the performance of the Executive's responsibilities for the
Company, any materials or documents of a former employer which are
not generally available to the public or which did not belong to
the Executive prior to the Executive’s employment with the
Company, unless the Executive has obtained written authorization
from the former employer or other owner for their possession and
use and provided the Company with a copy thereof.
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11. Notices. All notices, requests,
consents, approvals, and other communications to, upon, and between
the parties shall be in writing and shall be deemed to have been
given, delivered, made, and received when: (a) personally
delivered; (b) deposited for next day delivery by Federal Express,
or other similar overnight courier services; (c) transmitted via
telefacsimile or other similar device to the attention of the
Company’s Chief Financial Officer with receipt acknowledged;
or (d) three (3) days after being sent or mailed by certified mail,
postage prepaid and return receipt requested, addressed as
follows:
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If to
the Company:
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Attn:
Chief Financial Officer
Xxx
Xxxxxx Xxxxxxx
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Xxxxx
000
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Xxxxxxxxxxx, XX
00000
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If to
the Executive:
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Xxxxxxxxxxx Xxxxxx
Xxxxxxxx
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000
Xxxxxxx Xxxxx
Xxxxxx
Xxxx, XX 00000
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12. Indemnification, Liability
Insurance. The Company shall indemnify and hold the
Executive harmless to the fullest extent permitted by the laws of
the Company’s state of incorporation in effect at the time
against and in respect of any and all actions, suits, proceedings,
claims, demands, judgments, costs, expenses (including advancement
of reasonable attorney’s fees), losses, and damages resulting
from the Executive’s performance of the Executive’s
duties and obligations with the Company. The Executive will be
entitled to be covered, both during and, while potential liability
exists, by the insurance policies that the Company maintains
generally for the benefit of officers and directors of the Company
against all costs, charges and expenses incurred in connection with
any action, suit or proceeding to which the Executive may be made a
party by reason of being an officer or director of the Company in
the same amount and to the same extent as the Company covers its
other officers and directors. These obligations shall survive the
termination of the Executive’s employment with the
Company.
13. Effect/Assignment. This
Agreement shall be binding on and inure to the respective benefit
of the Company and its successors and assigns and the Executive and
his personal representatives. The Company shall require any
successor (whether direct or indirect, by purchase, merger,
consolidation, reorganization or otherwise) to all or substantially
all of the business or assets of the Company, within fifteen (15)
days of such succession, expressly to assume and agree to perform
this Agreement in the same manner and to the same extent as the
Company would be required to perform if no such succession had
taken place. The Executive may not assign this Agreement or
delegate his obligations hereunder. As used in this Agreement,
“Company” shall mean the Company and any such successor
which assumes and agrees to perform the duties and obligations of
the Company under this Agreement by operation of law or
otherwise.
14. Entire Agreement. Except as
expressly provided in this Agreement and except for the
Confidentiality Agreement, this Agreement: (i) supersedes all other
understandings and agreements, oral or written, between the parties
with respect to the subject matter of this Agreement; and (ii)
constitutes the sole agreement between the parties with respect to
this subject matter. Each party acknowledges that: (A) no
representations, inducements, promises or agreements, oral or
written, have been made by any party or by anyone acting on behalf
of any party, which are not embodied in this Agreement; and (B) no
agreement, statement or promise not contained in this Agreement
shall be valid. No change or modification of this Agreement shall
be valid or binding upon the parties unless such change or
modification is in writing and is signed by the
parties.
15. Severability. If a court of
competent jurisdiction holds that any provision or sub- part
thereof contained in this Agreement is invalid, illegal or
unenforceable, that invalidity, illegality or unenforceability
shall not affect, impair, or invalidate any other provision in this
Agreement. If any court determines that any of such covenants, or
any part thereof, is invalid or unenforceable because of the
geographic or temporal scope of such provision, such court will
reduce such scope to the minimum extent necessary to make such
covenants valid and enforceable. Executive acknowledges that the
restrictive covenants contained in Sections 7, 8, and 9 are a
condition of this Agreement and are reasonable and valid in
temporal scope and in all other respects.
16. Amendment and Waiver. No
provision of this Agreement, including the provisions of this
Section, may be amended, modified, superseded, deleted, or waived
in any manner except by a written agreement executed by the
parties. Further, the Company’s or the Executive’s
waiver of any breach of a provision of this Agreement shall not
waive any subsequent breach by the other party.
17. Governing Law. This Agreement
and the employment relationship created by it shall be governed by
North Carolina law without giving effect to North Carolina choice
of law provisions.
18. Consent to Jurisdiction and
Venue. Each of the parties agrees that any suit, action, or
proceeding arising out of this Agreement may be instituted against
it in the Superior Court of Wake County, North Carolina or in the
United States District Court for the Eastern District of North
Carolina (assuming that such court has subject matter jurisdiction
over such suit, action or proceeding). Each of the parties hereby
waives any objection that it may have to the venue of any such
suit, action, or proceeding, and each of the parties hereby
irrevocably consents to the personal jurisdiction of any such court
in any such suit, action, or proceeding.
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19. Counterparts. This Agreement
may be executed in more than one counterpart, each of which shall
be deemed an original, and all of which shall be deemed a single
agreement.
20. Headings. The headings herein
are for convenience only and shall not affect the interpretation of
this Agreement.
21.
Taxes.
(a)
Section 409A of the Internal Revenue
Code.
(i) Parties’ Intent.
The parties intend that the provisions of this Agreement comply
with Section 409A of the Internal Revenue Code of 1986, as amended
(the “Code”),
and the regulations thereunder (collectively, “Section 409A”), or an exemption,
and all provisions of this Agreement shall be construed in a manner
consistent with the requirements for avoiding taxes or penalties
under Section 409A. If any provision of this Agreement (or of any
award of compensation, including equity compensation or benefits)
would cause the Executive to incur any additional tax or interest
under Section 409A, the Company shall, upon the specific request of
the Executive, use its reasonable business efforts to in good faith
reform such provision to comply with Code Section 409A;
provided, that to
the maximum extent practicable, the original intent and economic
benefit to the Executive and the Company of the applicable
provision shall be maintained. The Company shall timely use its
reasonable business efforts to amend any plan or program in which
the Executive participates to bring it in compliance with Section
409A.
(ii) Separation
from Service. A termination of employment shall not be
deemed to have occurred for purposes of any provision of this
Agreement relating to the payment of any amounts or benefits upon
or following a termination of employment unless such termination
also constitutes a “Separation from Service” within the
meaning of Section 409A and, for purposes of any such provision of
this Agreement, references to a “termination,”
“termination of employment,” “separation from
service” or like terms shall mean Separation from
Service.
(iii) Separate
Payments. Each installment payment required under this
Agreement shall be considered a separate payment for purposes of
Section 409A.
(iv) Delayed
Distribution to Specified Employees. If the Company
determines in accordance with Sections 409A and 416(i) of the Code
and the regulations promulgated thereunder, in the Company’s
sole discretion, that the Executive is a specified employee of the
Company, determined in accordance with Section 409A, any payments
and/or benefits provided under this Agreement that constitute
”nonqualified deferred compensation” subject to Section
409A that are provided to Executive on account of his Separation
from Service shall not be provided until the day after the
six-month anniversary of Executive’s termination date
(“Specified Employee Payment
Date”). The aggregate amount of any payments that
would otherwise have been made to Executive during such six-month
period shall be paid in a lump sum to Executive on the Specified
Employee Payment Date without interest and, thereafter, any
remaining reimbursements shall be paid without delay in accordance
with their original schedule.
(b) Withholdings. The Company shall
withhold any amounts required from any payment due the Executive
hereunder in accordance with state and federal tax law
requirements.
22. Obligations Survive Termination of
Employment. The termination of Executive’s employment
for whatever reason will not impair or relieve Executive of any of
Executive’s obligations under this Agreement which, by their
express terms or by implication, extend beyond the term of
Executive’s employment.
[Signatures on following page]
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IN WITNESS WHEREOF, the parties have
executed this Employment Agreement as of the day and year first
above written.
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TENAX THERAPEUTICS, INC. |
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By:
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/s/ Xxxxxxx
Xxxxxx
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Xxxxxxx Xxxxxx |
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Chief Financial Officer |
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Xxxxxxxxxxx
Xxxxxx Xxxxxxxx
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/s/ Xxxxxxxxxxx Xxxxxx Xxxxxxxx |
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[Signature Page to Executive Employment Agreement]
8
Exhibit A
[To
be attached]
Exhibit B
[To be attached]
