EX-10.2 3 bicx_ex102.htm EXECUTIVE SERVICE AGREEMENT EXECUTIVE SERVICE AGREEMENT
EXHIBIT 10.2
THIS EXECUTIVE SERVICE AGREEMENT dated as of June 13, 2018 (the “Agreement”) is by and between BioCorRx Inc., a Nevada corporation (the “Company”), and Soupface LLC [Xxxxx Xxxxxxx] (the “Executive”).
NOW, THEREFORE, in consideration of the mutual covenants and obligations contained herein:
I. SERVICES; RESPONSIBILITIES; COMPENSATION
A. Position; Responsibility; Loyalty.
1. Subject to the terms of this Agreement, Executive is retained in the position of President and Chief Executive Officer of the Company, and shall perform the functions and responsibilities of that position. Executive hereby agrees to be subject to the direction and supervision of, and to have such authority as is delegated to the Executive by, the Board of Directors of the Company (the “Board”), consistent with such position. Additional or different duties may be assigned by the Company from time to time. Executive’s position, job descriptions, duties and responsibilities may be modified from time to time in the sole discretion of the Company. Executive acknowledges and agrees that, by virtue of such office, Executive may also be required to serve as member of the Board.
2. Executive shall devote his full-time attention and energies to the performance of Executive’s work responsibilities. During Executive’s term with the Company, it shall not be a violation of this Agreement for Executive to (i) serve on corporate board or committees; (ii) serve on civic or charitable boards or committees; (ii) deliver lectures or fulfill speaking engagements; and (iii) manage personal investments, in each case, so long as such activities do not materially interfere with the performance of Executive’s responsibilities as an Executive of the Company in accordance with this Agreement. Notwithstanding the foregoing, in the case of the foregoing (i), board or committee membership relating to Executive’s role with the Company or the business of the Company shall be approved by the Board, which approval shall not be unreasonably withheld and, in the case of the foregoing (ii) and (iii) Executive shall provide notice of such activities to the Board, except for activities which do not relate to Executive’s role with the Company or the business of the Company. Executive further agrees to comply with all policies of the Company in effect from time to time, and to comply with all laws, rules and regulations, including those applicable to the Company.
3. The parties desire this Agreement will not be an employment agreement but, rather, the executive will provide the general services hereunder as an independent contractor.
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1. The Company shall pay Executive base salary at the annual rate of $175,000 payable bi-monthly (the “Base Salary”), as may be adjusted from time to time by action of the Board. The Company shall also provide Executive with an expense allowance in such amounts as may from time to time be agreed to by Executive and the Board, including an amount to cover Executive’s monthly cell phone xxxx. In addition to the foregoing, the Company shall provide Executive with a car allowance in the amount of $500.00 per month, payable on the first regularly scheduled pay date of each month.
2. Notwithstanding any prior issuances of common stock of the Company, the Company shall grant an aggregate of 7,500,000 stock options (the “Stock Options”) to the Executive under its 2018 Stock Option Plan (the “Stock Option Plan”). The Stock Options shall expire in ten (10) years from the date of grant and the exercise price shall be U.S. $0.14 per common share. The 7,500,000 Stock Options shall be granted to Executive in accordance with the terms and conditions of the Company’s 2018 Stock Option Plan and the respective stock option award agreement with the Executive.
3. Executive shall also be eligible to participate in the Executive Management Bonus Plan adopted by the Board, effective June 15, 2016 (the “Bonus Plan”), pursuant to the terms and conditions of the Bonus Plan (which is attached hereto as Exhibit A).
4. Executive shall be reimbursed for health and medical insurance, dental and vision insurance.
5. The Executive shall be entitled to a yearly vacation as may be determined by the board.
6. The Company shall reimburse Executive for all business expenses that are reasonable and necessary and incurred by Executive while performing his duties under this Agreement, upon presentation of expense statements, receipts and/or vouchers or such other information and documentation as the Company may reasonably require. Executive will be subject to the same business expense policy applicable to other Company employees generally, if any.
A. Termination of the agreement.
1. The parties acknowledge that Executive’s relationship with the Company is at-will, meaning either the Company or Executive may terminate Executive’s agreement at any time, with or without cause or advance notice. The provisions in the below subsection B govern the amount of compensation, if any, that Executive may be eligible for upon a qualifying termination of this agreement and do not alter this at-will status.
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2. Executive’s agreement with the Company shall be terminated (i) immediately upon the death of Executive, (ii) upon Executive’s Permanent Disability, (iii) by the Company for Cause, (iv) by Executive for Good Reason, or (v) by the Company without Cause or by Executive without Good Reason. For purposes of this Article II, “date of termination” means the date of Executive’s death, the date of Executive’s Permanent Disability, or the date of Executive’s “separation from service,” as defined in Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations promulgated thereunder (the “Code Section 409A”).
3. For purposes hereof:
a) “Permanent Disability” shall mean either (A) Executive’s inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, or (B) by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, Executive’s receiving income replacement benefits for a period of not less than three months under an accident and health plan covering the Company’s employees. Executive will be deemed permanently disabled if determined to be totally disabled by the Social Security Administration or if determined to be disabled in accordance with a disability insurance program that applies a definition of disability that complies with the requirements of this paragraph.
b) “Good Reason” shall mean the occurrence of one or more of the following conditions without Executive’s consent: (A) a material breach by the Company of any material provision of this Agreement; (B) the relocation of Executive’s principal place of business, without Executive’s consent, in a manner that lengthens Executive’s one-way commute distance by fifty (50) or more miles from Executive’s then-current principal place of business immediately prior to such relocation (which, for avoidance of doubt, does not include required travel on Company business to an extent substantially consistent with Executive’s obligations under this Agreement); (C) in any year of service, a material reduction in Executive’s Base Salary in effect at the relevant time of at least five percent (5%) or (D) termination of the Company’s active bonus plan, as described in Paragraph I.B.5. above or the exclusion of the Executive from eligibility for, or a material reduction in, Executive’s award levels under such plan. Notwithstanding anything herein to the contrary, Good Reason will exist only if Executive provides notice to the Company of the existence of the condition otherwise constituting Good Reason within 30 days of the initial existence of the condition, the Company fails to reasonably remedy the condition on or before the 30th day following its receipt of such notice, and Executive resigns within 30 days following the end of such cure period.
c) “Cause” for termination shall mean that the Company has determined in its sole discretion that Executive has engaged in any of the following: Gross negligence, gross misrepresentation, fraud, conviction of a crime constituting a felony under applicable law, immoral or disreputable conduct, or any violation of company policy or misconduct that adversely affects the business of the Company
4. If Executive’s agreement is terminated under any of the foregoing circumstances, all future compensation to which Executive is otherwise entitled and all future benefits for which Executive is eligible, other than that already earned but which is unpaid, shall cease and terminate as of the date of termination, except as specifically provided in this Paragraph II. Any other payments or benefits by or on behalf of Company are limited to those which may be payable pursuant to the terms of Company’s Executive benefit plans or required by any applicable federal, state or local law.
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1. Termination by Company Without Cause or by Executive For Good Reason.
a) If Executive’s agreement is terminated by the Company without Cause (and not due to death or Permanent Disability) or by Executive for Good Reason Executive complies with his continuing obligations to the Company, and provided that Executive satisfies the Release Requirement in Paragraph II(B)(4) below, Executive shall be eligible to receive the following (collectively, the “Severance Benefits”):
(1) The Company will pay Executive, on the Company’s first payment date after Executive’s date of termination of agreement, (i) Executive’s accrued but unpaid salary through the date of termination, (ii) any unreimbursed business expenses incurred by Executive payable in accordance with the Company’s standard expense reimbursement policies, and (iii) benefits owed to Executive under any qualified retirement plan or health and welfare benefit plan in which Executive was a participant in accordance with applicable law and the provisions of such plan (collectively, the “Accrued Obligations”).
(2) Severance pay in the form of continuation of Executive’s final Base Salary for a period of twelve (12) months following termination (the “Severance Payments”). Subject to Paragraph II(B)(5) below, the Severance Payments shall be made on the Company’s regular payment schedule in effect following Executive’s termination date; provided, however that any such payments that are otherwise scheduled to be made prior to the Release Effective Date (as defined below) shall instead accrue and be made on the first regular payroll date following the Release Effective Date. For such purposes, Executive’s final Base Salary will be calculated prior to giving effect to any reduction in Base Salary that would give rise to Executive’s right to resign for Good Reason.
(3) Notwithstanding the terms of any equity plan or award agreement to the contrary, the time-based vesting conditions applicable to Executive’s stock options and/or other equity awards subject to time-based vesting requirements that are outstanding and not vested as of Executive’s termination date shall accelerate and deemed to be satisfied as of the date of Executive’s termination. For the avoidance of doubt, the accelerated vesting provided under this section shall not apply to any liquidity event or performance-based vesting conditions applicable to any of Executive’s outstanding stock options or other equity awards as of the date of termination. In all other respects, such time-based stock options and/or other equity awards shall continue to be governed by the terms of the applicable equity plan and award agreements.
(4) Executive will be eligible for a prorated bonus payment for the year in which the date of termination occurs, based on attainment of the applicable performance goals for that year, pursuant to the terms and conditions of the Bonus Plan (the “Prorated Bonus”). The Prorated Bonus, if earned, will be an amount in cash equal to the Executive’s bonus target for the year in which the date of termination occurs, multiplied by a fraction, the numerator of which is the number of days that Executive was employed by the Company during the year of termination and the denominator of which is three hundred and sixty five (365). Payment of the Prorated Bonus will be made in a lump sum at the same time that other employees of the Company are paid their bonuses for the calendar year under the Bonus Plan or, if later, the Release Effective Date.
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(5) If Executive timely elects continued coverage under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), the Company will reimburse Executive for the monthly COBRA cost of continued health coverage paid by Executive under the applicable health plan of the Company pursuant to Section 4980B of the Code until the earliest of (i) twelve (12) months following the termination date; (ii) the date when Executive becomes eligible for substantially equivalent health insurance coverage in connection with new employment or self-employment; or (iii) the date Executive ceases to be eligible for COBRA continuation coverage for any reason (the “COBRA Premium Period”). In the event Executive becomes covered under another group health plan or otherwise ceases to be eligible for COBRA during the COBRA Premium Period, Executive must immediately notify the Company of such event. Notwithstanding the foregoing, if the Company determines, in its sole discretion, that it cannot reimburse the COBRA premiums without potentially incurring financial costs or penalties under applicable law (including, without limitation, Section 2716 of the Public Health Service Act), regardless of whether Executive elects or is eligible for COBRA coverage, the Company instead shall pay to Executive, on the first day of each calendar month following the termination date, a fully taxable cash payment equal to the applicable COBRA premiums for that month. Executive may, but is not obligated to, use such Special Cash Payments toward the cost of COBRA premiums.
5. Cooperation with Company after Termination of Agreement. Following termination of Executive’s agreement for any reason, Executive agrees to cooperate fully with the Company in connection with its actual or contemplated defense, prosecution, or investigation of any claims or demands by or against third parties, or other matters arising from events, acts, or failures to act that occurred during the period of Executive’s agreement with the Company. Such cooperation includes, without limitation, making Executive available to the Company upon reasonable notice, without subpoena, to provide complete, truthful and accurate information in witness interviews, depositions and trial testimony. In addition, for six months after Executive’s agreement with the Company ends for any reason, the Company will reimburse Executive for reasonable out-of-pocket expenses Executive incurs in connection with any such cooperation (excluding forgone wages, salary, or other compensation) and will make reasonable efforts to accommodate Executive’s scheduling needs.
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1. All notices to be given with respect to this Agreement, unless otherwise provided for, shall be given to the Company and the Executive at the respective addresses, fax numbers and email addresses shown below or otherwise communicated by the Parties to each other for such notice and service matters during the currency of this Agreement.
2. All notices, requests, demands or other communications made by a Party will be deemed to have been duly delivered: (i) on the date of personal delivery utilizing a process server, courier or other means of physical delivery to the intended recipient (“Personal Service”); or (ii) on the date of facsimile transmission (the “Fax”) on proof of receipt of the Fax; or (iii) on the date of electronic mail (the “email”) with verifiable proof of receipt of such email; or (iv) on the seventh (7th) day after mailing by registered mail with postage prepaid (“Registered Mail”), to the Party’s address, Fax number, email address set out in this Agreement or such other addresses Fax numbers or email address as the Parties or their Representatives may have from time to time during the currency of this Agreement or thereafter and communicated to the other Parties for the purposes of this Agreement.
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| To: | BioCorRx Inc. 0000 X. Xxxxxxxxxx Xxx. #000 |
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| Xxxxxxx, XX 00000 |
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| To: | Xxxxx Xxxxxxx |
B. Entire Agreement and Severance. This Agreement contains the entire agreement between the Parties with respect to the subject matter hereof. This Agreement is entered into without reliance on any promise or representation, written or oral, other than those expressly contained herein, and it supersedes and replaces any other agreements or promises made to Executive by anyone concerning Executive’s agreement terms, compensation or benefits, whether oral or written (including but not limited the Prior Services Agreement). In the event that any provision of this Agreement will be held to be invalid, illegal or unenforceable in any circumstances, the remaining provisions will nevertheless remain in full force and effect and will be construed as if the unenforceable portion or portions were deleted.
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F. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF.
G. Jurisdiction. Unless otherwise mutually agreed to in writing by the Parties, any action, proceeding or arbitration in regard to a dispute or direction relating to the subject matter of this Agreement will be solely within the jurisdiction of the appropriate court, tribunal or arbitrator of competent jurisdiction within the State of California.
H. Dispute Resolution. To ensure the rapid and economical resolution of disputes that may arise in connection with Executive’s agreement with the Company, Executive and the Company agree that any and all disputes, claims, or causes of action, in law or equity, including but not limited to statutory claims, arising from or relating to the enforcement, breach, performance, or interpretation of this Agreement, Executive’s agreement with the Company, or the termination of Executive’s agreement from the Company, will be resolved pursuant to the Federal Arbitration Act, 9 U.S.C. §1-16, and to the fullest extent permitted by law, by final, binding and confidential arbitration conducted in Orange County, California by JAMS, Inc. (“JAMS”) or its successors, under JAMS’ then applicable rules and procedures for agreement disputes (which can be found at xxxx://xxx.xxxxxxx.xxx/xxxxx-xxxxxxx/, and which will be provided to Executive on request); provided that the arbitrator shall: (a) have the authority to compel adequate discovery for the resolution of the dispute and to award such relief as would otherwise be permitted by law; and (b) issue a written arbitration decision including the arbitrator’s essential findings and conclusions and a statement of the award. Executive and the Company shall be entitled to all rights and remedies that either would be entitled to pursue in a court of law. Both Executive and the Company acknowledge that by agreeing to this arbitration procedure, they waive the right to resolve any such dispute through a trial by jury or judge or administrative proceeding. The Company shall pay all filing fees in excess of those which would be required if the dispute were decided in a court of law, and shall pay the arbitrator’s fee. Nothing in this Agreement is intended to prevent either the Company or Executive from obtaining injunctive relief in court to prevent irreparable harm pending the conclusion of any such arbitration
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[Signature page to follow]
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| BioCorRx Inc. | |||
| Date: June 13, 2018 | By: | ||
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| Xxxxxxx Xxxxx | |
| Title: | CFO/COO | ||
| Date: June 13, 2018 | By: |
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| Xxxxx Xxxxxxx |
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| Executive |
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