EMPLOYMENT AGREEMENT
Exhibit
10.16
This
Agreement, dated as of February 4, 2010 (this “Agreement”), is by and between
CorMedix Inc., a Delaware corporation with principal executive offices at 00
Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000-0000 (the “Company”), and Xxxxx
Xxxx, residing at 00 Xxxxxxxxx Xxxxx, Xxxxxxxx Xxxxxxx, XX 00000 (the “Executive”).
WITNESSETH:
WHEREAS, the Company desires
to employ the Executive as Chief Financial Officer of the Company, and the
Executive desires to serve the Company in that capacity, upon the terms and
subject to the conditions contained in this Agreement;
NOW, THEREFORE, in
consideration of the mutual covenants and agreements herein contained, the
parties hereto hereby agree as follows:
1. Employment.
(a) Services. The
Executive will be employed by the Company as its Chief Financial Officer. The
Executive will report to the Chief Executive Officer of the Company (the “Chief Executive Officer”) and
shall perform such duties as are consistent with his position as Chief Financial
Officer (the
“Services”). The Executive
agrees to perform such duties faithfully, and while he remains employed, not to
engage in any other business activity that is in conflict with his duties and
obligations to the Company without the prior written consent of the Chief
Executive Officer and the Board of Directors of the Company (the “Board”). The
Executive further agrees to carry out and abide by all lawful directions of the
Chief Executive Officer and the Board consistent with his position as Chief
Financial Officer.
(b) Acceptance. The
Executive hereby accepts such employment and agrees to render the
Services.
2. Term. The
Executive’s employment under this Agreement (as it may be extended, the “Term”) shall commence on
February 16, 2010 (the “Commencement Date”) and shall
continue for a term of two (2) years, unless sooner terminated pursuant to
Section 8 of this Agreement; provided, however, that the Term shall be extended
automatically for additional one-year periods unless one party shall advise the
other in writing at least sixty 60 days before the initial expiration of the
Term or an anniversary date thereof that this Agreement shall no longer be so
extended. Notwithstanding anything to the contrary contained herein, the
provisions of this Agreement specified in Sections 5, 6, 9 and 10 shall survive
the expiration or termination hereof.
3. Best Efforts; Place of
Performance.
(a) The
Executive shall devote substantially all of his business time, attention and
energies to the business and affairs of the Company and shall use his best efforts to advance the
best interests of the Company and shall not during the Term be actively engaged
in any other business activity, whether or not such business activity is pursued
for gain, profit or other pecuniary advantage, that will interfere with the
performance by the Executive of his duties hereunder or the Executive’s
availability to perform such duties or that the Executive knows, or should
reasonably know, will adversely affect, or negatively reflect upon, the
Company.
(b) The
duties to be performed by the Executive hereunder shall be performed primarily
at the principal executive offices of the Company in Summit, New Jersey, or
wherever the principal executive offices of the Company shall hereafter be
located, subject to reasonable travel requirements on behalf of the Company,
or such other place
as the Board may reasonably designate.
4. Compensation. As
full compensation for the performance by the Executive of his duties under this
Agreement, the Company shall pay the Executive as follows:
(a) Base
Salary. The Company shall pay Executive a salary equal to One
Hundred Seventy Five Thousand Dollars ($175,000.00) per year (as it may be
increased from time to time the “Base Salary”), less
applicable withholdings and deductions. Payment shall be made in accordance with
the Company’s normal payroll practices. The Board shall annually review the Base
Salary to determine whether an increase in the amount thereof is
warranted.
(b) Guaranteed
Bonus. The Company shall pay the Executive a lump-sum cash
bonus (the “Guaranteed
Bonus”) equal to Fifteen Thousand Dollars ($15,000) upon the last
business day of the first calendar year during the Term. The
Guaranteed Bonus shall be increased to Twenty Five Thousand Dollars ($25,000)
for the second and each following calendar year during the Term, provided in
each case that the Executive is employed hereunder on the last day of such
calendar year, which Guaranteed Bonus shall be paid on the last business day of
such calendar year (subject to the terms of Section 9 hereof).
(c) Discretionary Bonus. At the
sole discretion of the Board, the Company shall pay the Executive an additional
cash bonus each calendar year during the Term (the “Discretionary Bonus”) in an amount equal to up
to thirty percent (30%) of the Executive’s aggregate Base Salary plus Guaranteed
Bonus, based upon the attainment by the Executive and the Company of certain
financial, clinical development and business milestones (the “Milestones”) as established annually by the
Chief Executive Officer, in conjunction with the Board (or a committee thereof),
after consultation with the Executive. No formal Milestones
will be established unless and until the Company consummates an equity financing
sufficient in the good faith determination of the Board to fund the Company’s
clinical development programs, and any bonus will be based on an assessment of
the Executive’s overall contribution and performance by the Chief Executive
Officer, in conjunction with the Board (or a committee thereof), after
consultation with the Executive, as well as the Company’s existing
cash-on-hand. Milestones for each calendar year following the
consummation of such financing shall be established by the Chief Executive
Officer, in conjunction with the Board (or a committee thereof), after
consultation with the Executive, not more than sixty (60) days following the
beginning of each calendar year. The Discretionary Bonus, if any,
shall be payable in cash as a lump-sum payment no later than seventy-five (75)
days after the end of each calendar year.
(d) IPO Bonus. After the
closing of the Company’s initial public offering (“IPO”), the Company shall pay to the Executive a
onetime cash bonus of Ten Thousand Dollars ($10,000), which shall be paid upon
the first regularly scheduled payroll date following the closing of the
IPO.
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(e) Withholding. The
Company shall withhold all applicable federal, state and local taxes and social
security and such other amounts as may be required by law from all amounts
payable to the Executive under this Section 4.
(f) Initial Option Grant. As
additional compensation for the Services to be rendered by the Employee pursuant
to this Agreement, upon the completion of the IPO, the Company shall grant to
the Employee an option to purchase a number of shares of common stock, par value
$0.001 (the “Common Stock”), of
the Company representing two percent (2.0%) of the Common Stock of the Company
outstanding upon completion of the IPO on a fully diluted basis. The
option shall be granted pursuant to the terms of the Company’s 2006 Stock
Incentive Plan, as it may be amended from time to time, with an exercise price
per share equal to the price at which shares of Common Stock of the Company are
sold in the IPO and shall vest in three equal annual installments with the first
installment vesting on the first anniversary of the grant date.
(g) Expenses. The Company shall
reimburse the Executive for all normal, usual and necessary expenses incurred by
the Executive in furtherance of the business and affairs of the Company (which
shall be deemed to include professional certification credits necessary for the
Executive to maintain his license as a certified public accountant), including
reasonable travel and entertainment, upon timely receipt by the Company of
appropriate vouchers or other proof of the Executive’s expenditures and
otherwise in accordance with any expense reimbursement policy as may from time
to time be adopted by the Company. To the extent that any such reimbursement
would be taxable, the amount of expenses eligible for reimbursement may not
affect the expenses eligible for reimbursement in any other year; the
reimbursement shall be made on or before the last day of the Executive’s taxable
year following the year on which the expense was incurred; and the right to
reimbursement is not subject to liquidation or exchange for another
benefit.
(h) Other Benefits. The
Executive shall be entitled to all rights and benefits for which he shall be
eligible under any benefit or other plans (including, without limitation,
dental, medical, medical reimbursement and hospital plans, pension plans,
employee stock purchase plans, profit sharing plans, bonus plans, prescription
drug reimbursement plans, short and long term disability plans, life insurance
and other so-called "fringe" benefits) as the Company shall make available to
its senior executives from time to time. Executive shall be
designated as a named insured on directors’ and officers’ liability insurance of
the Company.
(i)
Vacation. The Executive
shall be entitled to a vacation of four (4) weeks per annum, in addition to
holidays observed by the Company, to be taken in
accordance with the Company’s employee policies, and subject to the requirement
that no more than two weeks be taken consecutively and that all vacation is
subject to the prior approval of the Chief Executive
Officer. The Executive shall not be entitled to carry any
vacation forward to the next year of employment and shall not receive any
compensation for unused vacation days.
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5. Confidential Information and
Inventions.
(a) The
Executive recognizes and acknowledges that in the course of his duties he is
likely to receive confidential or proprietary information of the Company, its
affiliates or third parties with whom the Company or any such affiliates has an
obligation of confidentiality. Accordingly, during and after the
Term, the Executive agrees to keep confidential and not disclose or make
accessible to any other person or use for any other purpose other than in
connection with the fulfillment of his duties under this Agreement, any
Confidential and Proprietary Information owned by, or received by or on behalf
of the Company or any of its affiliates. “Confidential and Proprietary
Information” shall include, but shall not be limited to, confidential or
proprietary scientific or technical information, data, formulas and related
concepts, business plans (both current and under development), client lists,
promotion and marketing programs, trade secrets, or any other confidential or
proprietary business information relating to development programs, costs,
revenues, marketing, investments, sales activities, promotions, credit and
financial data, manufacturing processes, financing methods, plans or the
business and affairs of the Company or of any affiliate or client of the
Company. The Executive expressly acknowledges that the Confidential
and Proprietary Information constitutes a protectable business interest of the
Company. The Executive agrees: (i) not to use any such Confidential
and Proprietary Information for himself or others; and (ii) not to take any
Company material or reproductions (including but not limited to writings,
correspondence, notes, drafts, records, invoices, technical and business
policies, computer programs or disks) thereof from the Company’s offices at any
time during his employment by the Company, except as required in the execution
of the Executive’s duties to the Company, unless and until such Confidential and
Proprietary Information has become public knowledge without fault by the
Executive. The Executive agrees to return immediately all Company
material and reproductions (including but not limited, to writings,
correspondence, notes, drafts, records, invoices, technical and business
policies, computer programs or disks) thereof in his possession to the Company
upon request and in any event immediately upon termination of
employment.
(b) Except
with prior written authorization by the Company, the Executive agrees that
during the Term and thereafter, he will not disclose or publish:
(i) any
of the Confidential and Proprietary Information; or
(ii) any
confidential, scientific, technical or business information of any other party
to whom the Executive knows, or should reasonably know, that the Company or any
of its affiliates owes an obligation of confidence.
(c) The
Executive agrees that all inventions, discoveries, improvements and patentable
or copyrightable works (“Inventions”) initiated,
conceived or made by him, either alone or in conjunction with others, during the
Term shall be the sole property of the Company to the maximum extent permitted
by applicable law and, to the extent permitted by law, shall be “works made for
hire” as that term is defined in the United States Copyright Act (17 U.S.C.A.,
Section 101). The Company shall be the sole owner of all patents,
copyrights, trade secret rights, and other intellectual property or other rights
in connection therewith; provided, however that this Section 5(c) shall not
apply to Inventions which are not directly or indirectly related to the business
of the Company and which are made and conceived by the Executive not during
normal working hours, not on the Company’s premises and not using the Company’s
tools, devices, equipment or Confidential and Proprietary
Information. Subject to the foregoing, the Executive hereby assigns
to the Company all right, title and interest he may have or acquire in all
Inventions; provided, however, that the Board may in its sole discretion agree
to waive the Company’s rights pursuant to this Section 5(c).
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(d) Executive
agrees to cooperate fully with the Company, both during and after his employment
with the Company, with respect to the procurement, maintenance and enforcement
of copyrights, patents, trademarks and other intellectual property rights (both
in the United States and foreign countries) relating to such
Inventions. Executive shall sign all papers, including, without
limitation, copyright applications, patent applications, declarations, oaths,
formal assignments, assignments of priority rights and powers of attorney, which
the Company may deem necessary or desirable in order to protect its rights and
interests in any Inventions. Executive further agrees that if the
Company is unable, after reasonable effort, to secure Executive’s signature on
any such papers, any officer of the Company shall be entitled to execute such
papers as his agent and attorney-in-fact and Executive hereby irrevocably
designates and appoints each officer of the Company as his agent and
attorney-in-fact to execute any such papers on his behalf and to take any and
all actions as the Company may deem necessary or desirable in order to protect
its rights and interests in any Inventions, under the conditions described in
this paragraph.
(e) The
Executive acknowledges that while performing the Services, the Executive may
locate, identify and/or evaluate patented or patentable inventions having
commercial potential in the fields of pharmacy, pharmaceutical, biotechnology or
healthcare which the Executive knows or should reasonably know may be of
potential interest to the Company or one of its subsidiaries (the “Third Party
Inventions”). The Executive understands, acknowledges and
agrees that all rights to, interests in or opportunities regarding, all
Third-Party Inventions identified by the Company, any of its affiliates or
either of the foregoing persons’ officers, directors, employees (including the
Executive), agents or consultants during the Term and thereafter shall be and
remain the sole and exclusive property of the Company or such affiliate and the
Executive shall have no rights whatsoever to such Third-Party Inventions and
will not pursue for himself or for others any transaction relating to the
Third-Party Inventions which is not on behalf of the Company unless the Company
has expressly abandoned its interest in such Third Party Inventions in
writing.
(f) Executive
will not assert any rights to any invention, discovery, idea or improvement
relating to the business of the Company or to his duties hereunder as having
been made or acquired by Executive prior to his work for the Company, except for
the matters, if any, described in Appendix A to this Agreement.
(g) During
the Term, if Executive incorporates into a product or process of the Company or
any of its Affiliated Entities anything listed or described in Appendix A, the
Company is hereby granted and shall have a non-exclusive, royalty-free,
irrevocable, perpetual, worldwide license (with the right to grant and authorize
sublicenses) to make, have made, modify, use, sell, offer to sell, import,
reproduce, distribute, publish, prepare derivative works of, display, perform
publicly and by means of digital audio transmission and otherwise exploit as
part of or in connection with any product, process or machine.
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(h) The
Executive agrees that he will promptly disclose to the Company all Inventions
initiated, made or conceived or reduced to practice, either alone or jointly
with others, during the Term.
(i)
The provisions of this Section 5 shall survive any termination of this
Agreement.
6. Non-Competition,
Non-Solicitation and Non-Disparagement.
(a) The
Executive understands and recognizes that his services to the Company are
special and unique and that in the course of performing such services the
Executive will have access to and knowledge of Confidential and Proprietary
Information and the Executive agrees that, during the Term and the applicable
Termination Benefits Period (as defined hereinafter), he shall not in any
manner, directly or indirectly, on behalf of himself or any person, firm,
partnership, joint venture, corporation or other business entity (“Person”),
enter into or engage in any business which is engaged in any business directly
or indirectly competitive with the “Business of the Company” (as defined below),
either as an individual for his own account, or as a partner, joint venturer,
owner, executive, employee, independent contractor, principal, agent,
consultant, salesperson, officer, director or shareholder of a Person in such
competitive business within the geographic area in which the Company does
business, which is deemed by the parties hereto to be the United
States. The Executive acknowledges that, due to the unique nature of
the Company’s business, the Company has a strong legitimate business interest in
protecting the continuity of its business interests and its Confidential and
Proprietary Information and the restriction herein agreed to by the Executive
narrowly and fairly serves such an important and critical business interest of
the Company. For purposes of this Agreement, “Business of the
Company” shall mean any business relating to the development and
commercialization of therapeutics (including drugs, medical devices and
vaccines) for those indications in which the Company or any of its direct or
indirect subsidiaries is actively engaged or has taken reasonable steps to
become engaged at the time of the termination of the Executive’s employment or
during the two-year period prior thereto. Notwithstanding the
foregoing, nothing contained in this Section 6(a) shall be deemed to prohibit
the Executive from acquiring or holding, solely for investment, publicly traded
securities of any corporation, some or all of the activities of which are
competitive with the business of the Company so long as such securities do not,
in the aggregate, constitute more than four percent (4%) of any class or series
of outstanding securities of such corporation; and further notwithstanding the
foregoing, nothing contained in this Section 6(a) shall preclude the Executive
from becoming an employee of, or from otherwise providing services to, a
separate division or operating unit of a multi-divisional business or enterprise
(a “Division”) if: (i) the Division by which the Executive is employed, or to
which the Executive provides services, is not engaged in the Business of the
Company, (ii) the Executive does not provide services, directly or indirectly,
to any other division or operating unit of such multi-divisional business or
enterprise which is competitive with the Business of the Company (individually,
a “Competitive Division” and collectively, the “Competitive Divisions”) and
(iii) the Competitive Divisions, in the aggregate, accounted for less than
one-third of the multi-divisional business or enterprise’s consolidated revenues
for the fiscal year, and each subsequent quarterly period, prior to the
Executive’s commencement of employment with or provision of services to the
Division.
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(b) The
Executive hereby acknowledges and agrees that the covenant against competition
provided for pursuant to Section 6(a) is reasonable with respect to its
duration, geographic area and scope. If, at the time of enforcement of this
Section 6, a court holds that the restrictions stated herein are unreasonable
under the circumstances then existing, the Parties hereto agree that the maximum
duration, scope or geographic area legally permissible under such circumstances
will be substituted for the duration, scope or area state herein.
(c) During
the Term and the applicable Termination Benefits Period (as defined
hereinafter), the Executive shall not, directly or indirectly, without the prior
written consent of the Company:
(i) solicit
or induce any employee of the Company or any of its affiliates to leave the
employ of the Company or any affiliate; or hire for any purpose any employee of
the Company; or hire any former employee who has left the employment of the
Company or any affiliate of the Company within twelve (12) months of the
termination of such employee’s employment with the Company or any such
affiliate; or hire any former employee of the Company in knowing violation of
such employee’s non-competition agreement with the Company or any such affiliate
(provided, that for purposes of this subsection (c)(i), the parties hereto agree
that “affiliates” shall not be deemed to include any portfolio companies of
Paramount Biosciences, LLC);
(ii) solicit,
divert or take away, or attempt to divert or take away, the business or
patronage of any agent, client or customer of the Company which was contacted,
solicited or served by the Company during the twelve-month period prior to the
termination of the Executive’s employment with the Company; or
(iii) without
the consent of the Board, which shall not be unreasonably withheld, solicit or
accept employment or be retained by any Person, who at any time during the
twelve-month period prior to the termination of the Executive’s employment with
the Company, was an agent, client or customer of the Company or any of its
subsidiaries where his position will be related to the business of the Company
or its subsidiaries.
(d) The
Executive agrees that both during the Term and for a period of five (5) years
thereafter, Executive shall not directly or indirectly disparage, whether or not
truthfully, the name or reputation of the Company or any of its affiliates,
including but not limited to, any officer, director, employee or shareholder of
the Company or any of its affiliates. Notwithstanding this Section,
nothing contained herein shall apply to statements made by Executive (x) in the
course of his responsibility to evaluate the performance and/or participate in
any investigation of the conduct or behavior of officers, employees and/or
others or (y) as part of any judicial, administrative or other legal action or
proceeding, and nothing shall be construed to limit or impair the ability of
Executive to provide truthful testimony in response to any validly issued
subpoena or to file pleadings or respond to inquiries or legal proceedings by
any government agency to the extent required by applicable law.
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(e) In
the event that the Executive breaches any provisions of Section 6 or this
Section 6 or there is a threatened breach, then, in addition to any other rights
which the Company may have, the Company shall be entitled, without the posting
of a bond or other security, to seek injunctive relief to enforce the
restrictions contained in such Sections. The Company and the
Executive agree that any such action for injunctive or equitable relief shall be
heard in a state or federal court situated in Somerset County in the State of
New Jersey and each of the parties hereto agrees to accept service of process by
registered or certified mail and to otherwise consent to the jurisdiction of
such courts.
(f) Each
of the rights and remedies enumerated in Section 6(e) shall be independent of
the others and shall be in addition to and not in lieu of any other rights and
remedies available to the Company at law or in equity. If any of the
covenants contained in this Section 6, or any part of any of them, is hereafter
construed or adjudicated to be invalid or unenforceable, the same shall not
affect the remainder of the covenant or covenants or rights or remedies which
shall be given full effect without regard to the invalid portions. If
any of the covenants contained in this Section 6 is held to be invalid or
unenforceable because of the duration of such provision or the area covered
thereby, the parties agree that the court making such determination shall have
the power to reduce the duration and/or area of such provision and in its
reduced form such provision shall then be enforceable.
(g) In
the event that an actual proceeding is brought in equity to enforce the
provisions of Section 5 or this Section 6, the Executive shall not urge as a
defense that there is an adequate remedy at law nor shall the Company be
prevented from seeking any other remedies which may be available.
(h) The
provisions of this Section 6 shall survive any termination of this
Agreement.
7. Representations and
Warranties by the Executive.
The
Executive hereby represents and warrants to the Company as follows:
(a) Neither
the execution or delivery of this Agreement nor the performance by the Executive
of his duties and other obligations hereunder conflict with or constitute a
default or breach of any covenant or obligation under (whether immediately, upon
the giving of notice or lapse of time or both) any prior employment agreement,
contract, or other instrument to which the Executive is a party or by which he
is bound.
(b) The
Executive has the full right, power and legal capacity to enter and deliver this
Agreement and to perform his duties and other obligations
hereunder. This Agreement constitutes the legal, valid and binding
obligation of the Executive enforceable against him in accordance with its
terms. No approvals or consents of any persons or entities are
required for the Executive to execute and deliver this Agreement or perform his
duties and other obligations hereunder.
(c) Executive
will not use any confidential information or trade secrets of any third party in
his employment by the Company in violation of the terms of the agreements under
which he had access to or knowledge of such confidential information or trade
secrets.
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8.
Termination. The
Executive’s employment hereunder shall be terminated upon the Executive’s death
and may be terminated as follows:
(a) The
Executive’s employment hereunder may be terminated by the Company immediately
for Cause. Any of the following actions by the Executive shall
constitute “Cause”:
(i) The
willful failure, disregard or refusal by the Executive to perform his duties
hereunder;
(ii) Any
willful, intentional or grossly negligent act by the Executive having the effect
of materially injuring (whether financial or otherwise and as determined in
good-faith by the Board), the business or reputation of the Company or any of
its affiliates, including but not limited to, any officer, director, executive
or shareholder of the Company or any of its affiliates;
(iii) Willful
misconduct by the Executive in respect of the duties or obligations of the
Executive under this Agreement, including, without
limitation, willful insubordination with respect to lawful directions received
by the Executive from the Chief Executive Officer or the
Board;
(iv) The
Executive’s conviction of any felony or a misdemeanor involving moral turpitude
(including entry of a nolo contendere plea);
(v) The
determination by the Company, after a reasonable and good-faith investigation by
the Company following an allegation by an employee, contractor or customer of
the Company, that the Executive engaged in some form of harassment prohibited by law (including, without limitation,
age, sex or race discrimination);
(vi) Any
misappropriation or embezzlement of the property of the Company or its
affiliates (whether or not a misdemeanor or felony);
(vii) Breach
by the Executive of any of the provisions of Sections 5, 6 or 7 of this Agreement;
or
(viii) Breach
by the Executive of any provision of this Agreement other than those contained
in Sections 5, 6 or 7 which is not cured by
the Executive within thirty (30) days after notice thereof is given to the
Executive by the Company.
(b) The
Executive’s employment hereunder may be terminated by the Company due to the
Executive’s Disability. For purposes of this Agreement, a termination
for “Disability” shall
occur (i) when the Company has provided a written termination notice to the
Executive supported by a written statement from a reputable independent
physician to the effect that the Executive shall have become so physically or
mentally incapacitated as to be unable to resume, within the ensuing six (6)
months, his employment hereunder by reason of physical or mental illness or
injury, or (ii) upon rendering of a written termination notice by the Company
after the Executive has been unable to substantially perform his duties
hereunder for 60 or more consecutive days, or more than 90 days in any
consecutive twelve month period, by reason of any physical or mental illness or
injury. For purposes of this Section 8(b), the Executive agrees to
make himself available and to cooperate in any reasonable examination by a
reputable independent physician retained by the Company.
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(c) The
Executive’s employment hereunder may be terminated by the Board upon the
occurrence of a Change of Control. For purposes of this Agreement,
“Change of Control”
means, following the Commencement Date:
(i) the
acquisition by an individual, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Exchange Act) (a “Person”) of beneficial
ownership of any capital stock of the Company, if, after such acquisition, such
Person beneficially owns (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) 50% or more of the combined voting power of the then-outstanding
securities of the Company entitled to vote generally in the election of
directors (the “Outstanding
Company Voting Securities”); or
(ii) the
consummation of a merger, consolidation, reorganization, recapitalization or
share exchange involving the Company or a sale or other disposition of all or
substantially all of the assets of the Company (a “Business Combination”),
unless, immediately following such Business Combination, all or substantially
all of the individuals and entities who were the beneficial owners of the
Outstanding Company Voting Securities immediately prior to such Business
Combination beneficially own, directly or indirectly, more than 50% of the
combined voting power of the then-outstanding securities entitled to vote
generally in the election of directors of the resulting or acquiring corporation
in such Business Combination (which shall include, without limitation, a
corporation which as a result of such transaction owns the Company or
substantially all of the Company’s assets either directly or through one or more
subsidiaries) in substantially the same proportions as their ownership of the
Outstanding Company Voting Securities immediately prior to such Business
Combination.
(d) The
Executive’s employment hereunder may be terminated by the Executive for Good
Reason. For purposes of this Agreement, “Good Reason” shall
mean:
(i) any
reduction by the Company of the Executive’s compensation or benefits payable
hereunder (it being understood that a reduction of benefits applicable to all
employees of the Company, including the Executive, shall not be deemed a
reduction of the Executive’s compensation package for purposes of this
definition);
(ii) without
the Executive’s express written consent, any material reduction by the Company
of the Executive's duties, responsibilities, or authority as Chief Financial
Officer of the Company which causes his position with the Company to become of
less responsibility or authority than his position as of immediately following
the Commencement Date; or
(iii) a
relocation of the Company’s principal place of business further than fifty (50)
miles from the Company’s existing principal executive offices identified
herein.
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(e) The
Executive’s employment may be terminated by the Company or by the Executive for
any reason or no reason.
(f) The
Executive’s employment may terminate by expiration of the Term, as it may be
extended, by notice of non-renewal by either party in accordance with Section 2
hereof.
9. Compensation upon
Termination.
In the event the Executive’s employment
is terminated pursuant to any of the subsections within Section 8, the Company
shall pay to the Executive the Base Salary and benefits otherwise payable to him
under Section 4 through the last day of his actual employment by the Company,
any reimbursable business expenses, and any earned but unpaid bonuses (together,
the “Accrued
Compensation”). In addition to the Accrued
Compensation:
(a) If
the Executive’s employment is terminated as a result of his death or Disability,
the Company shall pay to the Executive or to the Executive’s estate, as
applicable, (i) his Base Salary through the date which is ninety (90) days after
his death or Disability, (ii) the Guaranteed Bonus pro rated to the date of the
Executive’s death or Disability and (iii) such other or additional benefits, if
any, as may be provided under applicable employee benefit plans, programs and/or
arrangements of the Company. All shares of common stock of the
Company held by Executive that are subject to vesting (“Restricted Shares”) and all
options to purchase shares of common stock of the Company (“Stock Options”) that are
scheduled to vest on or before the next succeeding anniversary of the
Commencement Date shall be accelerated and deemed to have vested as of the
termination date. All Restricted Shares and Stock Options that have
not vested (or been deemed pursuant to the immediately preceding sentence to
have vested) as of the date of termination shall be forfeited to the Company as
of such date. Stock Options that have vested as of the Executive’s
termination shall remain exercisable for ninety (90) days following such
termination. All payments, benefits and/or grants under this Section
9(a) shall be subject to Executive’s execution and delivery within 21 days of
separation from service of a general release of the Company, its parents,
subsidiaries and affiliates and each of its officers, directors, employees,
agents, successors and assigns in a form that is acceptable to the Company, with
such payments, benefits, and/or grants commencing within 30 days of the
Executive’s separation from service.
(b) If
the Executive’s employment is terminated by the Company for Cause, then the
Company shall provide such other or additional benefits, if any, as may be
provided under applicable employee benefit plans, programs and/or arrangements
of the Company. The Executive shall have no further entitlement
hereunder to any other compensation or benefits from the Company except to the
extent otherwise provided by law. All Restricted Shares and Stock
Options that have not vested as of the date of termination shall be forfeited to
the Company as of such date. Stock Options that have vested as of the
Executive’s termination shall remain exercisable for ninety (90) days following
such termination.
11
(c) If
the Executive’s employment is terminated by the Company other than as a result
of the Executive’s death or Disability and other than for Cause or under
circumstances specified in Section 9(d), or if the Executive’s employment is
terminated by the Executive for Good Reason, then the Company shall (i) continue
to pay to the Executive his Base Salary and benefits for a period of six (6)
months following the termination of the Term (such period of payment referred to
herein as the “Section 9(c)
Termination Benefits Period”), or, in the case of benefits, such time as
the Executive receives equivalent coverage and benefits under plans and programs
of a subsequent employer; (ii) pay the Guaranteed Bonus pro rated to the date of
the Executive’s termination; and (iii) provide such other or additional
benefits, if any, as may be provided under applicable employee benefit plans,
programs and/or arrangements of the Company. In addition, all
Restricted Shares and Stock Options that are scheduled to vest during the twelve
(12) month period following such termination shall be accelerated and deemed to
have vested as of the termination date. All Stock Options that have
vested (or been deemed pursuant to the immediately preceding sentence to have
vested) as of the date of the Executive’s termination shall remain exercisable
for a period of ninety (90) days. Notwithstanding anything to the
contrary, if any of the Executive’s benefits pursuant to Section 9(c)(i) hereof
cannot be provided to former employees, the Company shall provide the Executive,
in a single lump sum payment within ninety (90) days of separation from service,
with payment in whatever amount is necessary for the Executive to purchase the
equivalent benefit(s), with the payment grossed up as necessary to comport with
the tax-free nature of the Company’s direct provision of certain of those
benefits. All payments, benefits and/or grants under this Section
9(c) shall be subject to Executive’s execution and delivery within 21 days of
separation from service of a general release of the Company, its parents,
subsidiaries and affiliates and each of its officers, directors, employees,
agents, successors and assigns in a form that is acceptable to the Company, with
such payments, benefits, and/or grants commencing within 30 days of the
Executive’s separation from service.
(d) If
the Executive’s employment is terminated by the Company (or its successor)
within two (2) months prior to or six (6) months following the occurrence of a
Change of Control, and on the date of termination pursuant to this Section 9(d)
the fair market value of the Company’s Common Stock on a Fully-Diluted basis, in
the aggregate, as determined in good faith by the Board on the date of such
Change of Control, is more than $50,000,000, then the Company (or its successor,
as applicable) shall: (i) continue to pay to the Executive his Base Salary and
benefits for a period of three (3) months following the termination of the Term
(such period of payment is referred to herein as the “Section 9(d) Termination Benefits
Period”), or, in the case of benefits, such time as the Executive
receives equivalent coverage and benefits under plans and programs of a
subsequent employer; (ii) pay the Guaranteed Bonus pro rated to the date of the
Executive’s termination; and (iii) provide such other or additional benefits, if
any, as may be provided under applicable employee benefit plans, programs and/or
arrangements of the Company. In addition, all Restricted Shares and
Stock Options shall be accelerated and deemed to have vested as of the
termination date. Stock Options that have vested as of the
Executive’s termination shall remain exercisable for ninety (90) days following
such termination. Notwithstanding anything to the contrary, if any of
the Executive’s benefits pursuant to Section 9(d)(i) hereof cannot be provided
to former employees, the Company shall provide the Executive, in a single lump
sum payment within ninety (90) days of separation from service, with payment in
whatever amount is necessary for the Executive to purchase the equivalent
benefit(s), with the payment grossed up as necessary to comport with the
tax-free nature of the Company’s direct provision of certain of those
benefits. All payments, benefits and/or grants under this Section
9(d) shall be subject to Executive’s execution and delivery within 21 days of
separation from service of a general release of the Company, its parents,
subsidiaries and affiliates and each of its officers, directors, employees,
agents, successors and assigns in a form that is acceptable to the Company, with
such payments, benefits, and/or grants commencing within 30 days of the
Executive’s separation from service.
12
(e) If
the Executive’s employment is terminated by the Executive pursuant to Section
8(e) or by expiration of the Term pursuant to Section 8(f), the Executive shall
not be entitled to receive any payments or benefits other than the Accrued
Compensation.
(f) This
Section 9 sets forth the only obligations of the Company with respect to the
termination of the Executive’s employment with the Company, and the Executive
acknowledges that, upon the termination of his employment, he shall not be
entitled to any payments or benefits which are not explicitly provided in
Section 9, except as required by law or the terms of another employee plan,
program or arrangement covering him.
(g) Notwithstanding
anything in this Agreement or any other agreement between the Executive and the
Company to the contrary but subject to this Section 9(g), the Company will make
the payments and acceleration of benefits under this Agreement and other
compensatory arrangements without regard to whether Section 280G of the Internal
Revenue Code of 1986 (the “Code”) would limit or preclude
the deductibility of such payments or benefits. However, if reducing,
delaying, or eliminating any payment and/or other benefit (including the vesting
of his options or other equity compensation) would increase the Total After-Tax
Payments (as defined below), then the amounts payable to the Executive will be
reduced, delayed, or eliminated as follows (or in such other manner as the
Company may specify at the applicable time) to the extent necessary to maximize
such Total After-Tax Payments:
(i) first,
by reducing or eliminating any cash payments or other benefits (other than the
vesting of any options or stock) and
(ii) second,
by reducing or eliminating the vesting of his options and stock that occurs as a
result of a Change of Control or other event covered by Section 280G of the
Code.
The
Company's independent, certified public accounting firm will determine whether
and to what extent payments or vesting are required to be reduced in accordance
with the foregoing. If there is ultimately determined to be an underpayment of
or overpayment to the Executive under this provision, the amount of such
underpayment or overpayment will be immediately paid to the Executive or
refunded by him, as the case may be, with interest at the applicable federal
rate provided for in Section 7872(f)(2) of the Code. For purposes of this
Agreement, “Total After-Tax
Payments” means the total value of all "parachute payments" (as that term
is defined in Section 280G(b)(2) of the Code) made to the Executive or for his
benefit (whether made under the Agreement or otherwise), after reduction for all
applicable federal taxes (including, without limitation, the tax described in
Section 4999 of the Code).
(h) The
obligations of the Company that arise under this Section 9 shall survive the
expiration or earlier termination of this Agreement.
13
10. Indemnification. The
Company shall defend and indemnify the Executive in his capacity as Chief
Financial Officer of the Company to the fullest extent permitted
under to the Delaware General Corporate Law (the “DGCL”). The Company
shall also establish a policy for indemnifying its officers and directors,
including but not limited to the Executive, for all actions permitted under the
DGCL taken in good faith pursuit of their duties for the Company, including but
not limited to the obtaining of an appropriate level of Directors and Officers
Liability coverage and including such provisions in the Company’s by-laws or
certificate of incorporation, as applicable and customary. The rights
to indemnification shall survive any termination of this Agreement.
11. Compliance with Code Section
409A.
(a) If
any payment, compensation or other benefit provided to the Executive in
connection with his employment termination is determined, in whole or in part,
to constitute “nonqualified deferred compensation” within the meaning of Section
409A of the Code (“Section
409A”) and the Executive is a specified employee as defined in Section
409A(2)(B)(i), no part of such payments shall be paid before the day that is six
(6) months plus one (1) day after the termination date (the “New Payment
Date”). The aggregate of any payments that otherwise would
have been paid to the Executive during the period between the termination date
and the New Payment Date shall be paid to the Executive in a lump sum on such
New Payment Date. Thereafter, any payments that remain outstanding as
of the day immediately following the New Payment Date shall be paid without
delay over the time period originally scheduled, in accordance with the terms of
this Agreement.
(b) The
parties acknowledge and agree that the interpretation of Section 409A and its
application to the terms of this Agreement is uncertain and may be subject to
change as additional guidance and interpretations become
available. Anything to the contrary herein notwithstanding, all
benefits or payments provided by the Company to the Executive that would be
deemed to constitute “nonqualified deferred compensation” within the meaning of
Section 409A are intended to comply with Section 409A. If,
however, any such benefit or payment is deemed to not comply with Section 409A,
the Company and the Executive agree to renegotiate in good faith any such
benefit or payment (including, without limitation, as to the timing of any
severance payments payable hereof) so that either (i) Section 409A will not
apply or (ii) compliance with Section 409A will be achieved; provided, however,
that any resulting renegotiated terms shall provide to the Executive the
after-tax economic equivalent of what otherwise has been provided to the
Executive pursuant to the terms of this Agreement, and provided further, that
any deferral of payments or other benefits shall be only for such time period as
may be required to comply with Section 409A.
(c) For
purposes of the Agreement, a termination of employment will be determined
consistent with the rules relating to “separation from service” under Section
409A and the regulations thereunder.
(d) The
parties agree that all of the payments set forth in Section 5(c) qualify for the
short term deferral exemption under Section 409A.
14
12. Miscellaneous.
(a) This
Agreement shall be governed by, and construed and interpreted in accordance
with, the laws of the State of New Jersey, without giving effect to its
principles of conflicts of laws.
(b) Any
dispute arising out of, or relating to, this Agreement or the breach thereof
(other than Sections 5 or 6 hereof), or regarding the interpretation thereof,
shall be finally settled by arbitration conducted in Somerset County in the
State of New Jersey in accordance with the National Rules for the Resolution of
Employment Disputes of the American Arbitration Association then in effect
before a single arbitrator appointed in accordance with such
rules. Judgment upon any award rendered therein may be entered and
enforcement obtained thereon in any court having jurisdiction. The
arbitrator shall have authority to grant any form of appropriate relief, whether
legal or equitable in nature, including specific performance. For the
purpose of any judicial proceeding to enforce such award or incidental to such
arbitration or to compel arbitration and for purposes of Sections 5 and 6
hereof, the parties hereby submit to the exclusive jurisdiction of the state or
federal courts situated in Somerset County in the State of New Jersey, and agree
that service of process in such arbitration or court proceedings shall be
satisfactorily made upon it if sent by registered mail addressed to it at the
address referred to below in paragraph (g) of this Section 11
below. The costs of such arbitration shall be borne proportionate to
the finding of fault as determined by the arbitrator. Judgment on the
arbitration award may be entered by any court of competent
jurisdiction.
(c) This
Agreement shall be binding upon and inure to the benefit of the parties hereto,
and their respective heirs, legal representatives, successors and permitted
assigns.
(d) This
Agreement, and the Executive’s rights and obligations hereunder, may not be
assigned by the Executive. The Company may assign its rights,
together with its obligations, hereunder in connection with any sale, transfer
or other disposition of all or substantially all of its business or
assets.
(e) This
Agreement cannot be amended orally, or by any course of conduct or dealing, but
only by a written agreement signed by the parties hereto.
(f)
The failure of either party to insist upon the strict performance of any of the
terms, conditions and provisions of this Agreement shall not be construed as a
waiver or relinquishment of future compliance therewith, and such terms,
conditions and provisions shall remain in full force and effect. No
waiver of any term or condition of this Agreement on the part of either party
shall be effective for any purpose whatsoever unless such waiver is in writing
and signed by such party.
(g) All
notices, demands or other communications desired or required to be given by any
party to any other party hereto shall be in writing and shall be deemed
effectively given upon (i) personal delivery to the party to be notified, (ii)
upon confirmation of receipt of telecopy or other electronic facsimile
transmission, (iii) one business day after deposit with a reputable overnight
courier, prepaid for priority overnight delivery, or (iv) five days after
deposit with the United States Post Office, postage prepaid, in each case to
such party at the address set forth on the signature page hereto, or to such
other addresses and to the attention of such other individuals as any party
shall have designated to the other parties by notice given in the foregoing
manner.
15
(h) This
Agreement sets forth the entire agreement and understanding of the parties
relating to the subject matter hereof, and supersedes all prior agreements,
arrangements and understandings, written or oral, relating to the subject matter
hereof. No representation, promise or inducement has been made by
either party that is not embodied in this Agreement, and neither party shall be
bound by or liable for any alleged representation, promise or inducement not so
set forth.
(i)
As used in this Agreement, “affiliate” of a specified
Person shall mean and include any Person controlling, controlled by or under
common control with the specified Person.
(j)
The section headings contained herein are
for reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
(k) This
Agreement may be executed in any number of counterparts, each of which shall
constitute an original, but all of which together shall constitute one and the
same instrument.
(l)
As used in this Agreement, the masculine, feminine or neuter gender, and the
singular or plural, shall be deemed to include the others whenever and wherever
the context so requires. Additionally, unless the context requires
otherwise, "or" is not exclusive.
[Remainder of Page Intentionally Left
Blank – Signature Page Follows]
16
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the date first above
written.
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By:
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/s/ Xxxx
Xxxxxxxx
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Name:
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Xxxx
Xxxxxxxx
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Title:
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President
and Chief Executive Officer
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EXECUTIVE
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/s/ Xxxxx
Xxxx
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Xxxxx
Xxxx
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Appendix
A
None.
