EMPLOYMENT AGREEMENT
This
Employment Agreement (the "Agreement"), dated as of September 12, 2007, is
made
by and between Rexahn Pharmaceuticals, Inc. (the "Company") and Tae Heum Jeong
(the "Employee").
W
I T
N E S S E T H :
WHEREAS,
the Company desires to employ the Employee pursuant to the terms and conditions
contained in this Agreement; and
WHEREAS,
the Employee desires to accept such employment pursuant to the terms and
conditions contained in this Agreement;
NOW,
THEREFORE, in consideration of the premises, and of the mutual covenants and
agreements hereinafter contained, the parties hereto agree as
follows:
1. Term. The
Employee's employment under this Agreement shall commence on the date first
written above, and unless sooner terminated pursuant to Section 7 below, shall
continue through the second anniversary of such date (hereinafter, such period
of employment is referred to as the "Term"). Should the Employee's
employment continue beyond the Term, such employment shall become "at-will,"
unless the Company's Board of Directors (the "Board") and the Employee agree
to
an extension of the Term in a writing expressly referencing this
Agreement.
2. Title. During
the Term, the Employee will serve as the Chief Financial Officer of the
Company.
3. Duties. During
the Term, the Employee will be responsible for such duties and responsibilities
as are consistent with his position or past practices of the Company, or as
may
be assigned to him from time to time by the Board. The Employee
agrees to devote his full time, attention, skill, and energy to the duties
set
forth herein and to the business of the Company, and to use his best efforts
to
promote the success of the Company's business.
4. Reporting. During
the Term, the Employee will report to the Chief Executive Officer of the Company
(the "CEO").
5. Location. During
the Term, the Employee shall be based in the Company's principal executive
offices, which are currently located in Rockville, Maryland. The Employee
acknowledges that in order to effectively perform his duties, he will
occasionally be required to travel for business purposes.
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6. Compensation.
(a) Base
Salary. During the Term, the Employee will receive an annual base salary of
$160,000 (the "Base Salary"), payable in accordance with the Company's normal
payroll practices as in effect from time to time. Such Base Salary
shall be subject to periodic review, and may be increased at the Board's sole
discretion.
(b) Bonus
and Stock Options. During the Term, the Employee shall be eligible to
receive an annual cash bonus for each fiscal year, as determined by the CEO
in
his sole discretion. Such annual bonus, as determined by the CEO in his sole
discretion, will not exceed fifty percent (50%) of the Base Salary.
Any
such
bonus must be paid to the Employee within sixty (60) days after the date the
CEO
determines to award such bonus. In order to receive any cash bonus
payable pursuant to this Section 6(b), the Employee must be actively employed
by
the Company on the date on which such bonus is paid to the
Employee.
During
the Term, the Employee shall be eligible for awards of options to purchase
shares of the Company's stock (the "Stock Options"), such Stock Options to
be
awarded in the sole discretion of the Board and in accordance with the terms
of
the Company's Stock Option Plan (the "Plan"), as the Plan may be amended,
suspended, or terminated from time to time.
In
addition to the annual cash bonus and stock option awards set forth above,
an
additional bonus in the form of cash and/or stock in the Board's sole discretion
may be paid to the Employee.
(c) Vacation.
During the Term, the Employee shall be entitled to vacation benefits in
accordance with the Company's vacation policy for officers and management
personnel.
(d) Benefits.
During the Term, and provided that the Employee satisfies, and continues to
satisfy, any plan eligibility requirements, the Employee shall be entitled
to
participate in, and receive benefits under, any retirement savings plan or
welfare benefit plan made available by the Company to similarly-situated
employees, as such plans may be in effect from time to time.
(e) Reimbursement
of Business Expenses. The Company will reimburse the Employee for all
reasonable and properly-documented business-related expenses incurred or paid
by
him in connection with the performance of his duties hereunder.
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(f) Withholdings.
All payments made under this Section 6, or under any other provision of this
Agreement, shall be subject to any and all federal, state, and local taxes
and
other withholdings to the extent required by applicable law.
7. Termination
of Employment.
(a) Due
to Death. The Employee's employment with the Company will automatically
terminate immediately upon his death.
(b) Due
to Disability. If the Employee incurs a "Disability" (as defined below)
during the Term, then the Board, in its sole discretion, shall be entitled
to
terminate the Employee's employment immediately upon written notice to the
Employee of such decision. For purposes of this Agreement, "Disability" shall
mean a physical or mental impairment that prevents the Employee from performing
the essential duties of his position, with or without reasonable accommodation,
for (i) a period of ninety (90) consecutive calendar days, or (ii) an aggregate
of ninety (90) work days in any six-month period. The determination of whether
the Employee has incurred a Disability shall be made by the Board, in its sole
discretion, after consultation with the Employee's physician.
(c)
By the Board. During the Term, the Board shall be entitled to terminate
the Employee's employment with or without "Cause" (as defined below) by
providing written notice to the Employee of such decision, provided that if
the
Board terminates the Employee's employment without Cause (and not as a result
of
a Disability), then the Board must provide at least thirty (30) days' advance
written notice of such decision to the Employee. No advance notice
period is required for a termination by the Board with Cause. The Board reserves
the right to withdraw any and all duties and responsibilities from the Employee,
and to exclude the Employee from the Company's premises, during such 30-day
notice period. For purposes of this Agreement, "Cause" shall mean (i)
the commission by the Employee of an act of malfeasance, dishonesty, fraud,
or
breach of trust against the Company or any of its employees, clients, or
suppliers, (ii) the breach by the Employee of any of his obligations under
this
Agreement, or any other agreement between the Employee and the Company, (iii)
the Employee's failure to comply with the Company's written policies; (iv)
the
Employee's failure, neglect, or refusal to perform his duties under this
Agreement, or to follow the lawful written directions of the Board, (v) the
Employee's indictment, conviction of, or plea of guilty or no contest to, any
felony or any crime involving moral turpitude, (vi) any act or omission by
the
Employee involving dishonesty or fraud or that is, or is reasonably likely
to
be, injurious to the financial condition or business reputation of the Company,
or that otherwise is injurious to the Company's employees, clients, or
suppliers, or (vii) the inability of the Employee, as a result of repeated
alcohol or drug use, to perform the duties and/or responsibilities of his
position.
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(d) By
the Employee. During the Term, the Employee shall be entitled to terminate
his employment with the Company by providing the Board with at least thirty
(30)
days' advance written notice of such decision. The Company reserves
the right to withdraw any and all duties and responsibilities from the Employee,
and to exclude the Employee from the Company's premises, during such 30-day
notice period.
8. Compensation
Upon Termination of Employment.
(a)
Termination By Reason of Death or Disability. If the Employee's
employment is terminated by reason of his death or Disability under Section
7(a)
or 7(b) above, then the Company shall pay to the Employee (or his estate, as
appropriate), within thirty (30) days of his termination date, his then current
Base Salary (i) through the termination date, and (ii) for any accrued but
unused vacation days as of the termination date. Thereafter, the Company shall
have no further obligations to the Employee.
(b) Termination
by the Board with Cause. If the Employee's employment is terminated by the
Board with Cause under Section 7(c) above, then the Company shall pay to the
Employee, within thirty (30) days of his termination date, his then current
Base
Salary (i) through the termination date, and (ii) for any accrued but unused
vacation days as of the termination date. Thereafter, the Company
shall have no further obligations to the Employee.
(c)
Termination by the Board without Cause. Subject to Section 8(d) below, if
the Employee's employment is terminated by the Board without Cause (and not
as a
result of a Disability) under Section 7(c) above, then the Company shall provide
the Employee with (i) a payment of his then current Base Salary through the
termination date within thirty (30) days of such termination date, (ii) a
payment of his then current Base Salary for any accrued but unused vacation
days
as of the termination date, within thirty (30) days of such termination date,
(iii) a payment of a pro-rata portion of the Employee's bonus for the fiscal
year in which the termination occurs, within thirty (30) days of such
termination date, using the assumption that the Employee would have received
a
bonus for that fiscal year equal to fifty percent (50%) of his then current
Base
Salary (e.g., if one-third of the fiscal year elapsed prior to the
termination date, then the Employee would receive one-third of his bonus, if
any), (iv) a payment equal to his then current Base Salary for a period of
six
(6) months, payable within sixty (60) days of such termination date, and (v)
continued coverage under the Company's health insurance plan for a period of
eighteen (18) months, provided that the Employee makes a timely election to
continue such coverage under the federal law known as "COBRA" (such continued
coverage to run concurrently with the Company's obligations under COBRA and
any
other similar state law). The Company's obligations under clauses
(iv) and (v) of this subsection shall be subject to reimbursement by the
Employee and be reduced by any compensation or benefits actually earned or
received by the Employee as an employee of or consultant to any other entity
during the six-month period following the date of termination, as applicable,
and the Employee shall be required, in good faith, to seek other employment
in a
comparable position and to otherwise mitigate the payments and benefits set
forth under such clauses. The obligations of the Company to make payments and
provide the benefits set forth under clauses (iii), (iv), and (v) of this
subsection are subject to the Employee's execution and delivery to the Company
of a customary general release, in a form satisfactory to the
Company. Other than as set forth in this subsection, the Company
shall have no further obligations to the Employee.
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(d) Termination
by the Board Following a Change of Control. If the Employee's employment is
terminated by the Board without Cause (and not as a result of death or a
Disability) under Section 7(c) above, and such termination date falls within
the
one-year period immediately following a "Change of Control" (as defined in
the Plan as in effect on the date hereof), then the Company shall
provide the Employee with (i) a payment of his then current Base Salary through
the termination date within thirty (30) days of such termination date, (ii)
a
payment of his then current Base Salary for any accrued but unused vacation
days
as of the termination date, within thirty (30) days of such termination date,
(iii) a payment of a pro-rata portion of the Employee's bonus for the fiscal
year in which the termination occurs, within thirty (30) days of such
termination date, using the assumption that the Employee would have received
a
bonus for that fiscal year equal to fifty percent (50%) of his then current
Base
Salary (e.g., if one-third of the fiscal year elapsed prior to the
termination date, then the Employee would receive one-third of his bonus, if
any), (iv) a payment of his then current Base Salary for a period of one (1)
year, payable within sixty (60) days of such termination date, and (v) continued
coverage under the Company's health insurance plan for a period of eighteen
(18)
months, provided that the Employee makes a timely election to continue such
coverage under the federal law known as "COBRA" (such continued coverage to
run
concurrently with the Company's obligations under COBRA and any other similar
state law). The Company's obligations under clauses (iv) and (v) of this
subsection shall be subject to reimbursement by the Employee and be reduced
by
any compensation or benefits actually earned or received by the Employee as
an
employee of or consultant to any other entity during the one-year period
following the date of termination, and the Employee shall be required, in good
faith, to seek other employment in a comparable position and to otherwise
mitigate the payments set forth under such clauses. The obligations
of the Company to make the payments and to provide the benefits set forth under
clauses (iii), (iv) and (v) of this subsection are conditioned upon the
Employee's execution of a customary general release, in a form satisfactory
to
the Company. The payments and benefits set forth in this Section 8(d)
are mutually exclusive of the payments and benefits set forth in Section 8(c)
above. Other than as set forth in this subsection, the Company shall
have no further obligations to the Employee.
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(e) Termination
by the Employee. If the Employee terminates his employment under Section
7(d) above, then the Company shall pay to the Employee, within thirty (30)
days
of his termination date, (i) his then current Base Salary through the
termination date, and (ii) any accrued but unused vacation days as of the
termination date. Thereafter, the Company shall have no further
obligations to the Employee.
9. Confidential
Information.
(a) Non-Use
and Non-Disclosure of Confidential Information. The Employee acknowledges
that, during the course of his employment with the Company, he will have access
to information about the Company and/or its subsidiaries and their clients
and
suppliers, that is confidential and/or proprietary in nature, and that belongs
to the Company and/or its subsidiaries. As such, at all times, both
during the Term and thereafter, the Employee will hold in the strictest
confidence, and not use or attempt to use except for the benefit of the Company
and/or its subsidiaries, and not disclose to any other person or entity (without
the prior written authorization of the Board), any "Confidential Information"
(as defined below). Notwithstanding anything contained in this
Section 9, the Employee will be permitted to disclose any Confidential
Information to the extent required by validly-issued legal process or court
order, provided that the Employee notifies the Company and/or its subsidiaries
immediately of any such legal process or court order in an effort to allow
the
Company and/or its subsidiaries to challenge such legal process or court order,
if the Company and/or its subsidiaries so elects, prior to the Employee's
disclosure of any Confidential Information.
(b)
No Breach. The Employee represents and warrants that he has not and will
not make unauthorized disclosure to the Company of any confidential information
or trade secrets of any third party or otherwise breach any obligation of
confidentiality to any third party.
(c) Definition
of Confidential Information. For purposes of this Agreement, "Confidential
Information" means any confidential or proprietary information that belongs
to
the Company and/or its subsidiaries, or any of their clients or suppliers,
including without limitation, technical data, market data, trade secrets,
trademarks, service marks, copyrights, other intellectual property, know-how,
research, business plans, product information, projects, services, client lists
and information, client preferences, client transactions, supplier lists and
information, supplier rates, software, hardware, technology, inventions,
developments, processes, formulas, designs, drawings, marketing methods and
strategies, pricing strategies, sales methods, financial information, revenue
figures, account information, credit information, financing arrangements, and
other information disclosed to the Employee by the Company and/or its
subsidiaries in confidence, directly or indirectly, and whether in writing,
orally, or by electronic records, drawings, pictures, or inspection of tangible
property. "Confidential Information" does not include any of the
foregoing information that has entered the public domain other than by a breach
of this Agreement.
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10. Return
of Company Property. Upon the
termination of the Employee's employment with the Company for any reason
(whether upon the expiration of the Term or thereafter), or at any time during
such employment upon request by the Board, the Employee will promptly deliver
to
the Board (or its representative) and not keep in his possession, recreate,
or
deliver to any other person or entity, any and all property that belongs to
the
Company and/or its subsidiaries, or that belongs to any other third party and
is
in the Employee's possession as a result of his employment with the Company,
including without limitation, computer hardware and software, pagers, PDA's,
Blackberries, cell phones, other electronic equipment, records, data, client
lists and information, supplier lists and information, notes, reports,
correspondence, financial information, account information, product information,
files, electronically-stored information, and other documents and information,
including any and all copies of the foregoing.
11. Intellectual
Property.
(a) Prior
Inventions. The Employee hereby acknowledges and agrees that he has made no
invention, original work of authorship, development, improvement, and trade
secret prior to the commencement of his employment with the Company, that belong
solely to the Employee or belong to the Employee jointly with others (subject
to
the restriction in Section 9(b)) (collectively referred to as "Prior
Inventions"), that relate in any way to any of the Company's and/or its
subsidiaries' actual or proposed businesses, products, services, or research
and
development, and that are not assigned to the Company and/or its subsidiaries
herein). If in the course of the Employee's employment with the Company (whether
during the Term or thereafter), he incorporates into any Company's or its
subsidiaries' product, process, service, or machine, a Prior Invention owned
by
the Employee or in which he has an interest, then the Company is hereby granted
and shall have a non-exclusive, royalty-free, irrevocable, perpetual, worldwide
license (with the right to sublicense) to make, have made, copy, modify, make
derivative works of, use, sell, and otherwise distribute such Prior Invention
as
part of, or in connection with, such product, process, service, or
machine.
(b) Assignment
of Inventions. The Employee will promptly make full written disclosure to
the Board, will hold in trust for the sole right and benefit of the Company,
and
hereby assigns to the Company or its designee, all his right, title, and
interest throughout the world in and to any and all inventions, original works
of authorship, developments, concepts, know-how, improvements, or trade secrets,
whether or not patentable or registerable under copyright or similar laws,
that
he may solely or jointly conceive or develop or reduce to practice, or cause
to
be developed or reduced to practice, during his employment with the Company
(whether during the Term or thereafter) that (i) relate at the time of
conception, development, or reduction to practice to the actual or demonstrably
proposed business or research and development activities of the Company and/or
its subsidiaries, (ii) result from or relate to any work performed for the
Company and/or its subsidiaries, whether or not during normal business hours,
or
(iii) are developed through the use of Confidential Information (collectively
referred to as "Inventions"). The Employee further acknowledges that all
Inventions that are made by him (solely or jointly with others) within the
scope
of and during the period of his employment with the Company and/or its
subsidiaries (whether during the Term or thereafter) are "works made for hire"
(to the greatest extent permitted by applicable law) and are compensated by
his
salary, unless regulated otherwise by law.
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(c) Maintenance
of Invention Records. The Employee will keep and maintain adequate and
current written records of all Inventions made by him (solely or jointly with
others) during his employment with the Company and/or its subsidiaries (whether
during the Term or thereafter). The records may be in the form of
notes, sketches, drawings, flow charts, electronic data or recordings,
laboratory notebooks, or any similar format. The records will be
available to and remain the sole property of the Company and its subsidiaries
at
all times. The Employee will not remove such records from the
Company's or its subsidiaries' business premises except as expressly permitted
by Company policy that may, from time to time, be revised at the sole discretion
of the Company.
(d) Further
Assistance. The Employee will assist the Company or its designee, at the
Company's expense, in every way to secure the Company's rights in any Inventions
and any copyrights, patents, trademarks, trade secrets, moral rights, or other
intellectual property rights relating thereto in any and all countries,
including without limitation, the disclosure to the Company of all pertinent
information and data with respect thereto, the execution of all applications,
specifications, oaths, assignments, records, and all other instruments that
the
Company shall deem necessary in order to apply for, obtain, maintain, and
transfer such rights and in order to assign and convey to the Company, its
successors, assigns, and nominees the sole and exclusive rights, title, and
interest in and to such Inventions, and any copyrights, patents, trademarks,
trade secrets, moral rights, or other intellectual property rights relating
thereto. The Employee acknowledges that his obligation to execute, or
cause to be executed, when it is in his power to do so, any such instrument
or
papers shall continue after the termination of his employment with the Company
until the expiration of the last such intellectual property right in any
country. If the Company is unable, because of the Employee's mental or physical
incapacity or unavailability for any other reason, to secure his signature
to
apply for or to pursue any application for any patents or copyright
registrations covering Inventions assigned to the Company above, then the
Employee hereby irrevocably designates and appoints the Company and its duly
authorized officers and agents as his agent and attorney-in-fact, to act for
and
in his behalf and stead to execute and file any such applications and to do
all
other lawfully-permitted acts to further the application for, prosecution,
issuance, maintenance, or transfer of letters patent or copyright registrations
thereon with the same legal force and effect as if originally executed by the
Employee. The Employee hereby waives and irrevocably quitclaims to
the Company and/or its subsidiaries any and all claims, of any nature
whatsoever, that he now or hereafter has for infringement of any and all
Inventions assigned to the Company and/or its subsidiaries.
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12. No
Prior Restrictions. The Employee
represents and warrants that his employment with the Company will not violate,
or cause him to be in breach of, any obligation or covenant made to any former
employer or other third party, and that during the course of his employment
with
the Company (whether during the Term or thereafter), he will not take any action
that would violate or breach any legal obligation that he may have to any former
employer or other third party.
13. No
Interference with Employees and Customers. The
Employee agrees that, during the Employee's employment with the Company and
for
a period of twelve (12) months immediately thereafter, the Employee will not,
directly or indirectly through another entity, for himself or any other person
or entity, (i) induce or solicit, or attempt to induce or solicit, any employee
or independent contractor of the Company or its subsidiaries (or any individual
who was employed or engaged by the Company or its subsidiaries during the
one-year period immediately before the termination of the Employee's employment)
to leave the employment of, or to cease his or her contracting relationship
with, the Company or its subsidiaries, (ii) interfere in any way with the
employment relationship between the Company or its subsidiaries or their
employees and independent contractors, (iii) hire or engage any employee or
independent contractor of the Company or its subsidiaries (or any individual
who
was employed or engaged by the Company or its subsidiaries during the one-year
period immediately before the termination of the Employee's employment), or
(iv)
induce or attempt to induce any customer, supplier, licensee, or other business
relation of the Company or its subsidiaries to cease doing business with the
Company or its subsidiaries, or in any way interfere with the relationship
between any such customer, supplier, licensee, or business relation and the
Company or its subsidiaries.
14. Non-Disparagement.
Both during and after the Employee's employment with the Company,
the
Employee will not disparage, portray in a negative light, or take any action
that would be harmful to, or lead to unfavorable publicity for, the Company
or
any of its current or former clients, suppliers, officers, directors, employees,
agents, consultants, contractors, owners, parents, subsidiaries, or divisions,
whether in public or private, including without limitation, in any and all
interviews, oral statements, written materials, electronically-displayed
materials, and materials or information displayed on Internet-related
sites.
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15. Equitable
Relief. The Employee acknowledges that the remedy at law for his
breach of Sections 9, 10, 11, 13, and 14 above will be inadequate, and that
the
damages flowing from such breach will not be readily susceptible to being
measured in monetary terms. Accordingly, upon a violation of any part
of such sections, the Company shall be entitled to immediate injunctive relief
(or other equitable relief) and may obtain a temporary order restraining any
further violation. No bond or other security shall be required in
obtaining such equitable relief, and the Employee hereby consents to the
issuance of such equitable relief. Nothing in this Section 15 shall
be deemed to limit the Company's remedies at law or in equity for any breach
by
the Employee of any of the parts of Sections 9, 10, 11, 13, and 14 which may
be
pursued or availed of by the Company.
16. Judicial
Modification. The Employee acknowledges that it is
the intent of the parties hereto that the restrictions contained or referenced
in Sections 9, 10, 11, 13, and 14 above be enforced to the fullest extent
permissible under the laws of each jurisdiction in which enforcement is
sought. If any of the restrictions contained or referenced in such
Sections is for any reason held by an arbitrator or court to be excessively
broad as to duration, activity, geographical scope, or subject, then such
restriction shall be construed, judicially modified, or "blue penciled" in
such
jurisdiction so as to thereafter be limited or reduced to the extent required
to
be enforceable in such jurisdiction under applicable law.
17. Arbitration. Other
than actions seeking injunctive relief to enforce the provisions of Sections
9,
10, 11, 13, and 14 above (which actions may be brought by the Company in a
court
of appropriate jurisdiction), any dispute or controversy between the parties
hereto, whether during the Term or thereafter, including without limitation,
matters relating to this Agreement, the Employee's employment with the Company
and the cessation thereof, and all matters arising under any federal, state,
or
local statute, rule, or regulation, or principle of contract law or common
law,
including but not limited to any and all medical leave statutes, wage-payment
statutes, employment discrimination statutes, and any other equivalent federal,
state, or local statute, shall be settled by arbitration administered by the
American Arbitration Association ("AAA") in Xxxxxxxxxx County, Maryland pursuant
to the AAA's National Rules for the Resolution of Employment Disputes (or their
equivalent), which arbitration shall be confidential, final, and binding to
the
fullest extent permitted by law. Each party hereto shall be
responsible for paying one-half of the cost of the arbitration (including the
cost of the arbitrator), and all of the cost of its own attorneys' fees and
costs, incurred under this Section 17, unless otherwise apportioned by the
arbitrator in accordance with applicable law.
18. Notices.
All notices and other communications provided for in this Agreement
shall be in writing and shall be deemed to have been duly given when delivered
and received by the other party, or when sent by recognized overnight courier
to
the following addresses:
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If
to the Company:
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0000
Xxxxxxx Xxxxxx Xxxxx
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Xxxxxxxxx,
Xxxxxxxx 00000
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Attention:
Chief Executive Officer
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If
to the Employee:
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00
Xxxxxxx Xxxxx
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Xxxxxxxxxx,
XX 00000;
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or
to
such other address as either party hereto will have furnished to the other
in
writing in accordance with this Section 18, except that such notice of change
of
address shall be effective only upon receipt.
19. Severability.
In the event that any of the provisions of this Agreement, or the application
of
any such provisions to the Employee or the Company with respect to obligations
hereunder, is held to be unlawful or unenforceable by any court or arbitrator,
the remaining portions of this Agreement shall remain in full force and effect
and shall not be invalidated or impaired in any manner.
20. Waiver.
No waiver by any party hereto of the breach of any term or covenant contained
in
this Agreement, whether by conduct or otherwise, in any one or more instances,
shall be deemed to be, or construed as, a further or continuing waiver of any
such breach, or a waiver of any other term or covenant contained in this
Agreement.
21. Entire
Agreement. This Agreement contains the
entire agreement between the Employee and the Company with respect to the
subject matter of this Agreement, and supersedes any and all prior agreements
and understandings, oral or written, between the Employee and the Company with
respect to the subject matter of this Agreement.
22. Amendments. This
Agreement may be amended only by an agreement in writing signed by the Employee
and an authorized representative of the Company (other than the
Employee).
23. Section
409A Provisions
(a) Six-Month
Wait for Key Employees Following Separation from Service. To the extent that
any amount payable under this Agreement constitutes an amount payable under
a
"nonqualified deferred compensation plan," as defined in Internal Revenue Code
Section 409A ("Section 409A"), following a "separation from service," as defined
in Section 409A, then, notwithstanding any other provision in this Agreement
to
the contrary, such payment will not be made until the date that is six (6)
months after the Employee's "separation from service," but only if the Employee
is then deemed to be a "specified employee" under Section 409A pursuant to
procedures elected by the Company to the extent that it elects not to rely
upon
Section 409A's default provisions for determining "specified
employees".
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(b)
Necessary Amendments Due to Section 409A. The parties hereto acknowledge
that the requirements of Section 409A are still being developed and interpreted
by government agencies, that certain issues under Section 409A remain unclear
at
this time, and that the parties hereto have made a good faith effort to comply
with current guidance under Section 409A. Notwithstanding anything in this
Agreement to the contrary, in the event that amendments to this Agreement are
necessary in order to comply with future guidance or interpretations under
Section 409A, including amendments necessary to ensure that compensation will
not be subject to Section 409A, the Employee agrees that the Company shall
be
permitted to make such amendments, on a prospective and/or retroactive basis,
in
its sole discretion.
24. Successors
and Assigns. Because the Employee's
obligations under this Agreement are personal in nature, the Employee's
obligations may only be performed by the Employee and may not be assigned by
him. This Agreement is also binding upon the Employee's successors,
heirs, executors, administrators, and other legal representatives, and shall
inure to the benefit of the Company and its subsidiaries, successors, and
assigns.
25. Consultation
with Counsel. The Employee acknowledges
that he has had a full and complete opportunity to consult with counsel of
his
own choosing concerning the terms, enforceability, and implications of this
Agreement.
26. No
Other Representations. The Employee
acknowledges that the Company has made no representations or warranties to
the
Employee concerning the terms, enforceability, or implications of this Agreement
other than as reflected in this Agreement.
27. Headings. The
titles and headings of sections and subsections contained in this Agreement
are
included solely for convenience of reference and will not control the meaning
or
interpretation of any of the provisions of this Agreement.
12
28. Counterparts. This
Agreement may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, and such counterparts shall together
constitute but one agreement.
29. Governing
Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Maryland, without giving effect to
its
conflict of laws principles.
13
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first written above.
|
TAE
HEUM JEONG
|
|||||
|
By:
|
|
/s/
Xxxxx X. Xxx
|
/s/
Xxx X. Xxxxx
|
||
|
Name:
|
Xxxxx
X. Xxx
|
Signature
|
|||
|
Title:
|
Chairman
and CEO
|
||||
14
