May 13, 2019 (Effective Date)
Exhibit 10.2
May 13,
2019 (Effective Date)
Dear
Xxxxx:
ENDRA
Life Sciences Inc. (the “Company”) is pleased to offer
you employment on the following terms:
1. Position. Your title will be Chief
Financial Officer of the Company, and you will report directly to
the Chief Executive Officer of the Company. This is a full-time
position. While you render services to the Company, you will not
engage in any other employment, consulting or other business
activity (whether full-time or part-time) that would create a
conflict of interest with the Company. By signing this letter
agreement, you confirm to the Company that you have no contractual
commitments or other legal obligations that would prohibit you from
performing your duties for the Company, and that you have
relinquished control of and involvement in any other business
operations (including, but not limited to, Xxxxx Compliance);
provided, the foregoing shall not prohibit your retaining your
ownership interest in Atlas Bookkeeping as long as such ownership
does not in any way interfere with the performance of your duties
for the Company. For the duration of your employment with the
Company, you hereby agree from and after the Effective Date, (i) to
cease all operations with Storycorp/Xxxxx Compliance; and (ii) to
not provide any finance outsourcing services to any individual,
company, organization, or other entity without prior written
approval from the Company’s Chief Executive
Officer.
2. Term.
Subject to the remaining provisions of this paragraph, this letter
agreement will be for an initial term that begins as of the date
first set forth above (the “Effective Date”) and
continues in effect through the second (2nd) anniversary of the
Effective Date (the “Initial Term”) and, unless
terminated sooner, will continue on a year-to-year basis after the
Initial Term (each year, a “Renewal Term”). If either
party elects not to renew this letter agreement, that party must
give a written notice of termination to the other party at least 90
days before the expiration of the then-current Initial Term or
Renewal Term. If one party provides the other with a notice of
termination, no further automatic extensions will occur and this
letter agreement will terminate at the end of the then-existing
Initial Term or Renewal Term, and such termination will not result
in any entitlement to compensation pursuant to Section 9 below
or otherwise.
3. Cash Compensation. The Company will pay
you a base salary at an
annual rate of $230,000, in accordance with the
Company’s standard payroll schedule and subject to applicable
deductions and withholdings. This salary will be subject to
periodic review and adjustments at the Board’s discretion. In
addition, you will be eligible to receive an annual bonus to be
paid based on attainment of Company and individual performance
objectives to be established annually by the Board. With respect to
2019, the annual bonus target to be paid if all goals are achieved
will be a cash payment equal to 30% of your base salary plus base
fees paid to Xxxxx Compliance earned in 2019 and will be based on the realization of
milestones determined and approved by the Board.
4. Employee Benefits. As a regular employee
of the Company, you will be eligible to participate in a number of
Company-sponsored benefits. You will receive 15 days of paid time
off (PTO) per calendar year, in accordance with Company policy in
effect from time to time and in compliance with applicable state
law. Without limiting the generality of the foregoing, while you
are an employee of the Company, the Company will provide you life
insurance, with you to designate the beneficiary thereunder, in an
amount equal to your base salary as in effect on the date of this
letter agreement and as in effect on the first business day of each
calendar year thereafter. You will also be eligible to participate
in a long-term disability insurance plan sponsored by the
Company.
5. Stock Option.
(a) Number of Shares. On your first date of
employment with the Company, you will be granted an Option to
purchase 56,000 shares of the Company’s common stock (the
“Stock Option”).
(b) Plan Terms Control. The Stock Option
will be subject to the terms and conditions applicable to Options
granted under the Plan, as described in the Plan and the applicable
Award Agreement.
(c) Scheduled Vesting. The Stock Option will
vest as described in the applicable Award Agreement.
(d) Accelerated Vesting. If your Separation
from Service is the result of an involuntary discharge by the
Company that is without Cause and is not the result of your death
or Disability, then any shares subject to the Stock Option that are
scheduled to vest within 12 months of such Separation from Service
will vest immediately upon such Separation from Service, and any
remaining unvested portion of the shares subject to the Stock
Option will terminate immediately.
(e) Accelerated Vesting upon Change in
Control. If your Separation from Service is the result of an
involuntary discharge by the Company that is without Cause, and is
not the result of your death or Disability, and is within 12 months
following a Change in Control, then the Stock Option will vest
immediately upon such Separation from Service.
(f) Forfeiture of Unvested Options. If your
Separation from Service is for any reason other than an involuntary
discharge by the Company that is without Cause, the unvested
portion of the Stock Option will immediately
terminate.
(g) Separation from Service for Cause. If
your Separation from Service is for Cause, the unvested and vested
portion of the Stock Option will immediately
terminate.
(h) Exercise Period following Separation from
Service. Following your Separation from Service for any
reason other than Cause, the vested portion of the Stock Option
will remain exercisable for one year (by you or your beneficiaries
in the event of your death), subject to any outer limits contained
in the Company’s 2016 Omnibus Stock Incentive Plan, as
amended (the “Plan”) or the applicable Award
Agreement.
6. Confidential Information, Assignment of
Inventions, and Non-Solicitation Agreement. You will be
required, as a condition of your continued employment with the
Company, to sign (or re-sign) the Company’s Confidential
Information, Assignment of Inventions, and Non-Solicitation
Agreement, a copy of which is attached hereto as Exhibit A.
7. Time and Place of Employment; Travel. It
is acknowledged that your regular workplace will not be the
Company’s offices in Ann Arbor, Michigan and instead will be
in the state of California; however, the Company requires that you
work at least four business days per month out of the
Company’s offices in Ann Arbor, Michigan; provided that this
requirement may be waived for any given month by the CEO in writing
(email acceptable) should other Company business travel interfere
with your ability to be present in Xxx Arbor. The Company will pay
or reimburse your reasonable travel for business on the
Company’s behalf from your home in California, lodging, meal
and related incidental costs, consistent with the Company’s
travel policies in effect from time to time. The Company requires
presentation of receipts or an itemized accounting prior to making
any reimbursements under this paragraph.
8. Employment Relationship. Your employment
with the Company is “at will,” meaning that either you
or the Company may terminate your employment at any time and for
any reason, with or without cause; provided, for avoidance of
doubt, the foregoing does not limit your right to receive
separation benefits as provided for elsewhere in this Agreement.
Any contrary representations that may have been made to you are
superseded by this letter agreement. This is the full and complete
agreement between you and the Company on this term. Although your
job duties, title, compensation and benefits, as well as the
Company’s personnel policies and procedures, may change from
time to time, the “at will” nature of your employment
may only be changed in an express written agreement signed by you
and a duly authorized officer of the Company (other than
you).
9. Certain Payments upon Termination. If
you are terminated by the Company without Cause, then, contingent
upon your execution, delivery and non-revocation of a release in
form and substance satisfactory to the Company and consistent with
the Company’s standard release agreement, which contains a
full release of all claims against the Company and certain other
provisions (the “Release Agreement”), including a
reaffirmation of the covenants in your Confidential Information,
Assignment of Inventions, and Non-Solicitation Agreement, you will
be entitled to (i) 6 months’ (or 12 months’ if such
termination occurs within one year following a Change in Control)
continuation of your current base salary and (ii) a lump sum
payment equal to 6 months (or 12 months if such termination occurs
within one year following a Change in Control) of COBRA premiums
based on the terms of Company’s group health plan and your
coverage under such plan as of the date of your Separation from
Service (regardless of any COBRA election actually made by you or
the actual COBRA coverage period under the Company’s group
health plan). The Company’s obligations under this paragraph
are subject to the requirements and time periods set forth in this
paragraph and in the Release Agreement. Prior to receiving the
payments described in this paragraph, you must execute the Release
Agreement on or before the date 21 days (or such longer period to
the extent required by law) after your Separation from Service. If
you fail to timely execute and remit the Release Agreement, you
waive any right to the payments provided under this paragraph.
Payments under this paragraph will commence within 15 days of your
execution and delivery of the Release Agreement, provided that you
do not revoke the Release Agreement and allow it to become
effective in accordance with its terms. Your rights following a
Separation from Service under the terms of any Company plan,
whether tax-qualified or not, that are not specifically addressed
in this letter agreement, will be subject to the terms of such
plan, and this letter agreement will have no effect upon such terms
except as specifically provided herein. Except as specifically
provided in this paragraph, you will not have any further rights to
compensation under this letter agreement following your Separation
from Service.
10. Removal from any Boards and Positions.
Unless you and the Company agree otherwise at the time of your
Separation from Service, upon your Separation from Service, you
will be deemed to resign (a) if a member, from the Board and the
board of directors of any affiliate and any other board to which
you have been appointed or nominated by or on behalf of the Company
or an affiliate, (b) from each position with the Company and any
affiliate, including as an officer of the Company or an affiliate
and (c) as a fiduciary of any employee benefit plan of the Company
and any affiliate.
11. Tax Matters.
(a) Withholding. All forms of compensation
referred to in this letter agreement are subject to reduction to
reflect applicable withholding and payroll taxes and other
deductions required by law.
(b) Tax Advice. You are encouraged to obtain
your own tax advice regarding your compensation from the Company.
You agree that the Company does not have a duty to design its
compensation policies in a manner that minimizes your tax
liabilities.
12. Confidentiality. You and the Company
have entered into a Confidential Information, Assignment of
Inventions, and Non-Solicitation Agreement. In addition to the
terms of that agreement, you agree that the terms and conditions of
this letter agreement are strictly confidential and, with the
exception of your legal counsel, tax advisor, immediate family or
as required by applicable law, have not and will not be disclosed,
discussed or revealed to any other persons, entities or
organizations, whether within or outside the Company, without prior
written approval of the Company. For avoidance of doubt, you may
not utilize the terms of this letter agreement to seek employment
with another party.
13. Interpretation, Amendment and
Enforcement. This letter agreement and Exhibit A hereto constitute the
complete agreement between you and the Company, contain all of the
terms of your continued employment with the Company and supersede
any prior agreements, representations or understandings (whether
written, oral or implied) between you and the Company including the
Consulting Agreement between the Company and StoryCorp Consulting
dated July 23, 2014 which is hereby terminated and shall have no
further force or effect. This letter agreement may not be amended
or modified, except by an express written agreement signed by both
you and a duly authorized officer of the Company. The terms of this
letter agreement and the resolution of any disputes as to the
meaning, effect, performance or validity of this letter agreement
or arising out of, related to, or in any way connected with, this
letter agreement, your employment with the Company or any other
relationship between you and the Company will be governed by
California law, excluding laws relating to conflicts or choice of
law. Capitalized terms used and not defined herein have the
meanings ascribed thereto in the Plan; provided “Cause”
shall include, in addition to the meaning ascribed thereto in the
Plan, the occurrence of events relating to the past or future
operations of Storycorp/Xxxxx Compliance that interfere with your
ability to effectively perform your duties for the
Company.
14. Section 409A. It is intended that this
letter agreement comply with Section 409A of the Internal Revenue
Code of 1986 (“Section 409A”), to the extent
applicable. This letter agreement will be administered in a manner
consistent with this intent, and any provision that would cause
this letter agreement to fail to satisfy Section 409A will have no
force or effect until amended to comply with Section 409A.
Notwithstanding anything in this letter agreement to the contrary,
in the event any payment or benefit hereunder is determined to
constitute nonqualified deferred compensation subject to Section
409A, then to the extent necessary to comply with Section 409A,
such payment or benefit will not be made, provided or commenced
until six months after your Separation from Service. For purposes
of Section 409A, the right to a series of installment payments will
be treated as a right to a series of separate payments.
Notwithstanding anything in this letter agreement to the contrary,
to the extent required in order to avoid accelerated taxation
and/or additional taxes under Section 409A, amounts reimbursable to
you under this letter agreement will be paid to you on or before
the last day of the year following the year in which the expense
was incurred and the amount of expenses eligible for reimbursement
(and in-kind benefits provided to you) during any one year may not
effect amounts reimbursable or provided in any subsequent
year.
* * * *
*
You may
indicate your agreement with the terms of this letter agreement by
signing and dating both the enclosed duplicate original of this
letter agreement and the enclosed Confidential Information,
Assignment of Inventions, and Non-Solicitation Agreement and
returning them to me.
Very
truly yours,
/s/ Xxxxxxxx
Xxxxxxxx
By:
Xxxxxxxx Xxxxxxxx, Chief
Executive Officer
I have
read and accept this employment letter agreement:
/s/ Xxxxx
Xxxxx
Signature of Xxxxx
Xxxxx
Dated: May 13,
2019
Attachment
Exhibit
A: Confidential Information, Assignment of Inventions, and
Non-Solicitation Agreement
