EMPLOYMENT AGREEMENT – MURVIN LACKEY
Exhibit
10.86
EMPLOYMENT
AGREEMENT – XXXXXX XXXXXX
THIS
EMPLOYMENT AGREEMENT (the “Agreement”), is made
and entered into as of June 22, 2009, by and between PRWT Services, Inc., a
Pennsylvania corporation (the “Company”), and Xxxxxx
Xxxxxx (the “Executive”) to become
effective only upon the successful merger of PRWT Merger Sub, Inc., a
wholly-owned subsidiary of the company, and KBL Healthcare Acquisition Corp.
III.
1.2.1. During
the Term, the Executive shall have the title of the President of Distribution of
Cherokee Pharmaceuticals LLC and shall have such duties as may be from time to
time delegated to him by the Chief Executive Officer (the “CEO”) and the Board
of Directors (the “Board”). The Executive shall report directly to
the Chief Executive Officer. The Executive shall faithfully and
diligently discharge his duties hereunder and use his best efforts to implement
the policies established by the Board. The Executive’s
responsibilities shall include, among other things, to render executive, policy,
operations and other management services to the Company of the type customarily
provided by persons situated in similar executive and management
capacities.
1.2.2. The Executive shall devote all of his
business time, attention, knowledge and skills faithfully, diligently and to the
best of his ability, in furtherance of the business and activities of the
Company; provided, however, that nothing in this Agreement shall
preclude the Executive from devoting reasonable periods of time required
for:
(i)
serving as a director or member of a committee of any organization or
corporation involving no conflict of interest with the interests of the Company
and with the written consent of the Company;
(ii) delivering
lectures, fulfilling speaking engagements, and any writing or publication
relating to his experience or area of expertise;
(iii) engaging
in professional organization and program activities;
(iv) managing
his personal investments; and
(v) to
the extent the Company has given notice of non-renewal of this Agreement as
provided in section 1.1, seeking alternate employment;
provided
that such activities do not materially interfere with the due performance of his
duties and responsibilities under this Agreement as determined by the
Board.
1.3.1. The
Company shall reimburse Executive for all reasonable, documented out of pocket
expenses incurred by him in rendering his services hereunder, subject to and in
accordance with the Company’s reimbursement policy as same shall be in effect
and amended from time to time, including but not limited to expenses associated
and incurred to maintain licenses, certifications and memberships required to
perform his duties and responsibilities under this Agreement.
1.3.2. The
Company shall provide Executive with monthly parking, accruing from month to
month, at 0000 Xxxxxx Xxxxxx, subject to availability, or another equivalent
parking facility (subject to the Executive’s approval, which approval will not
be unreasonably withheld).
1.3.3. To
the extent any reimbursements referenced in this Section 1.3 (and any other
reimbursements of costs and expenses provided for herein) are includable in the
Executive’s gross income for federal income tax purposes, all such
reimbursements shall be made no later than March 15 of the calendar year next
following the calendar year in which the expenses to be reimbursed are
incurred.
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3. PLACE OF
PERFORMANCE. In connection with his employment by the Company,
the Executive shall be based at the Company’s principal executive offices in
Philadelphia, Pennsylvania, subject to the mutual agreement of the Executive and
the Company to relocate him to another office of the Company and provided that
Executive shall undertake travel from time to time as necessary to faithfully
execute his duties hereunder.
(i)
the failure by the Company to comply with its material obligations and
agreements contained in this Agreement;
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(ii) a
material diminution or shift of the executive’s responsibilities or a material
modification of title of the Executive with the Company without the consent of
the Executive which constitutes a material negative change to the Executive in
the service relationship; or
(iii) a
material reduction by the Company in the Base Salary as in effect on the date
hereof, or as the same may be increased from time to time, without the express
written consent of the Executive.
provided, however,
the Executive must give notice to the Company of the existence of the condition
described in paragraph 5.1.3 within a period not to exceed 90 days of the
initial existence of the condition, upon notice of which the Company may, within
30 days thereafter, remedy or cure such condition and termination must occur
within two years following the initial existence of the condition.
(i)
the willful failure by the Executive to substantially perform his obligations
under this Agreement (other than any such failure resulting from the Executive’s
incapacity due to physical or mental incapacity, illness or disease); provided, however, that the
Company shall have provided the Executive with written notice that such actions
are occurring and the Executive has been afforded a reasonable opportunity of at
least thirty (30) days to remedy or cure same; or
(ii) the
indictment of the Executive for a felony or other crime involving moral
turpitude as defined by the Company’s Employee Handbook and/or Code
of Ethical Conduct; or
(iii) a
material breach of Section 7 or Section 8 hereof or a breach of any
representation contained in this Agreement by the Executive; or
(iv) a
material breach of fiduciary duty involving personal profit; or
(v) the
Executive having committed acts or omissions constituting gross negligence or
willful misconduct (including theft, fraud, embezzlement, and securities law
violations) which is injurious to the Company, monetarily, or
otherwise. For purposes of this Section 5.1.4(v), no act, or failure
to act, on the part of the Executive shall be considered “gross negligence” or
“willful” unless done, or omitted to be done, by him in bad faith and without
reasonable belief that his action or omission was in the best interest of the
Company; or
(vi) the
Executive having committed any willful or material violation of, or willful or
material noncompliance with, any securities law, rule or regulation or stock
exchange regulation or rule relating to or affecting the Company, including
without limitation the Executive’s failure or refusal to honestly provide a
certificate in support of the chief executive officer’s and/or principal
executive officer’s certification required under the Xxxxxxxx-Xxxxx Act of 2002,
including the rules and regulations promulgated thereunder (the “Xxxxxxxx-Xxxxx
Act”). For purposes of determining "Cause" under this Section
5.1.4(vi), no act or failure to act on the party of Executive shall be deemed to
be a violation of or noncompliance with any securities law, rule or regulation
or stock exchange regulation or rule to the extent Executive has relied in good
faith on the written advice of the Company's General Counsel in making the
determination to act or fail to act.
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For
purposes of this Agreement, a “Change in Control”
shall be deemed to occur (i) when any “person” as defined in Section
3(a)(9) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and
as used in Section 13(d) and 14(d) thereof, including a “group” as defined in
Section 13(d) of the Exchange Act, but excluding the Executive, the Company or
any subsidiary or any affiliate of the Company or any employee benefit plan
sponsored or maintained by the Company or any subsidiary of the Company
(including any trustee of such plan acting as trustee), becomes the “beneficial
owner” (as defined in Rule 13(d)(3) under the Exchange Act) of securities of the
Company representing 50% or more of the combined voting power of the Company’s
then outstanding securities; or (ii) when, during any period of twelve (12)
consecutive months, the individuals who, at the beginning of such period,
constitute the Board (the “Incumbent Directors”)
cease for any reason other than death to constitute at least a majority thereof;
provided, however, that a
director who was not a director at the beginning of such twelve (12) month
period shall be deemed to have satisfied such twelve (12) month requirement (and
be an Incumbent Director) if such director was elected by, or on the
recommendation of or with the approval of, at least a majority of the directors
who then qualified as Incumbent Directors either actually (because they were
directors at the beginning of such twelve (12) month period) or through the
operation of this proviso; or (iii) the occurrence of a transaction
requiring stockholder approval for the acquisition of the Company by an entity
other than the Company or a subsidiary or an affiliated company of the Company
through purchase of assets, or by merger, or otherwise.
If after
the occurrence of a Change in Control, the Company shall terminate the
Executive’s employment without Cause or the Executive terminates his employment
for Good Reason, then notwithstanding the vesting and exercisability schedule in
any stock option or other equity award agreement between the Company and the
Executive, all unvested stock options and other equity awards granted by the
Company to the Executive, if any, pursuant to such agreement shall immediately
vest and become exercisable and shall remain exercisable until the earlier of
(a) the 180th day
thereafter or (b) the date that is no later than the earlier of the latest date
upon which the stock right could have expired by its original terms under any
circumstances or the 10th
anniversary of the original date of the grant of the stock right.
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In
addition, if Executive terminates his employment for Good Reason or is
terminated without cause, then notwithstanding the vesting and exercisability
schedule in any stock option or other equity award agreement between the Company
and the Executive, all unvested stock options and other equity awards granted by
the Company to the Executive pursuant to such agreement shall immediately vest
and become exercisable and shall remain exercisable until the earlier of (a) the
180th day
thereafter or (b) the date that is no later than the earlier of the latest date
upon which the stock right could have expired by its original terms under any
circumstances or the 10th
anniversary of the original date of the grant of the stock right.
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During
the continuance of the Executive’s employment hereunder, the Company shall have
the right to maintain key man life insurance in its own name covering the
Executive’s life in such amount as shall be determined by the Company, for a
term ending on the termination or expiration of this Agreement. The
Executive shall aid in the procuring of such insurance by submitting to the
required medical examinations, if any, and by filling out, executing and
delivering such applications and other instrument in writing as may be
reasonably required by an insurance company or companies to which application or
applications for insurance may be made by or for the
Company. For the avoidance of doubt, the Company’s
inability to obtain any insurance as provided in this Section or the rate of any
such insurance shall not be deemed to be “Cause” for the purposes of terminating
Executive’s employment under this Agreement.
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7.6.1. The
Executive agrees that all processes, technologies and inventions (“Inventions”),
including new contributions, improvements, ideas and discoveries, whether
patentable or not, conceived, developed, invented or made by him during the Term
shall belong to the Company, provided that such Inventions grew out of the
Executive’s work with the Company, are related in any manner to the business
(commercial or experimental) of the Company or are conceived or made on the
Company’s time or with the use of the Company’s facilities or
materials. The Executive shall further: (a) promptly disclose such
Inventions to the Company; (b) assign to the Company, without additional
compensation, all patent and other rights to such Inventions for the United
States and foreign countries; (c) sign all papers necessary to carry out the
foregoing; and (d) give testimony in support of his
inventorship (provided that to the extent Company requests the
Executive to perform any of the functions set forth in (c) or (d) above after
the Executive’s Date of Termination, the Company shall reasonably compensate
Executive for any time and expense involved therewith);
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7.6.2. If
any Invention is described in a patent application or is disclosed to third
parties, directly or indirectly, by the Executive within two (2) years after the
termination of his employment by the Company, it is to be presumed that the
Invention was conceived or made during the Term by the Company; and
7.6.3. The
Executive agrees that he will not assert any rights to any Invention as having
been made or acquired by him prior to the date of this Agreement, except for
Inventions, if any, disclosed to the Company in writing prior to the date
hereof.
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During
the Term and thereafter, the Executive shall cooperate with the Company in any
internal investigation or administrative, regulatory or judicial proceeding as
reasonably requested by the Company (including, without limitation, the
Executive being available to the Company upon reasonable notice for interviews
and factual investigations, appearing at the Company’s request to give testimony
without requiring service of a subpoena or other legal process, volunteering to
the Company all pertinent information and turning over to the Company all
relevant documents which are or may come into the Executive’s possession, all at
times and on schedules that are reasonably consistent with the Executive’s other
permitted activities and commitments). In the event the Company
requires the Executive’s cooperation in accordance with this section after the
termination of the Term, the Company shall reimburse the Executive for all of
his reasonable costs and expenses incurred, in connection therewith, plus pay
the Executive a reasonable amount per day for his time spent.
The
Company during the Term of this Agreement and at any time thererafter shall
indemnify the Executive to the fullest extent permitted by the Law of the
Commonwealth of Pennsylvania, as amended from time to time, for all amounts
(including without limitation, judgments, fines, settlement payments, expenses
and attorney’s fees) incurred or paid by the Executive in connection with any
action, suit, investigation or proceeding arising out of or relating to the
performance by the Executive of services for, or the acting by the Executive as
a director, officer or employee of the Company, or any other person or
enterprise at the Company’s request.
To
the Company:
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0000
Xxxxxx Xxxxxx
Xxxxx
000
Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000
Attention:
Xxxxxx X. Xxxx, President & CEO
Telephone:
000-000-0000
Telecopy:
000-000-0000
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with
a copy to:
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Xxxxx
Xxxxxx
SVP,
Human Resources
Deputy
General Counsel
Telephone:
000-000-0000
Telecopy:
000-000-0000
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To
the Executive:
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Xxxxxx
Xxxxxx
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0000
Xxxxxx Xxxxxx
Xxxxx
000
Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000
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All such
notices shall be conclusively deemed to be received and shall be effective
(i) if sent by hand delivery, upon receipt, (ii) if sent by telecopy
or facsimile transmission, upon confirmation of receipt by the sender of such
transmission, (iii) if sent by overnight courier, one business day after
being sent by overnight courier, or (iv) if sent by registered or certified
mail, postage prepaid, return receipt requested, on the fifth day after the day
on which such notice is mailed.
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10.7. Governing
Law. This
Agreement and the performance of the parties hereunder shall be governed by the
internal laws (and not the law of conflicts) of the Commonwealth of Pennsylvania. Any claim or controversy
arising out of or in connection with this Agreement, or the breach thereof,
shall be adjudicated exclusively by the state courts for the Commonwealth of Pennsylvania, or by a federal court sitting in the
Commonwealth of Pennsylvania. The parties hereto agree to
the personal jurisdiction of such courts and agree to accept process by regular
mail in connection with any such dispute.
10.9.1. It
is intended that the provisions of this Agreement comply with Section 409A of
the Code and the regulations and guidance promulgated thereunder (collectively
“Code Section
409A”), and all provisions of this Agreement shall be construed in a
manner consistent with the requirements for avoiding taxes or penalties under
Code Section 409A. If any provision of this Agreement (or of any
award of compensation, including equity compensation or benefits) would cause
the Executive to incur any additional tax or interest under Code
Section 409A, the Company shall, upon the specific request of the
Executive, use its reasonable business efforts to in good faith reform such
provision to comply with Code Section 409A; provided, that to the
maximum extent practicable, the original intent and economic benefit to the
Executive and the Company of the applicable provision shall be maintained, but
the Company shall have no obligation to make any changes that could create any
additional economic cost or loss of benefit to the
Company. Notwithstanding the foregoing, the Company shall have
no liability with regard to any failure to comply with Code Section 409A so long
as it has acted in good faith with regard to compliance therewith. Any provision
required for compliance with Code Section 409A that is omitted from this
Agreement shall be incorporated herein by reference and shall apply
retroactively, if necessary, and be deemed a part of this Agreement to the same
extent as though expressly set forth herein. “Code” means the
Internal Revenue Code of 1986, as amended. All references to the
Code, U.S. Treasury regulations or other governmental pronouncements shall be
deemed to include references to any applicable successor regulations or amending
pronouncement.
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10.9.2. A
termination of employment shall not be deemed to have occurred for purposes of
any provision of this Agreement providing for the payment of any amounts or
benefits upon or following a termination of employment unless such termination
is also a “Separation from Service” within the meaning of Code Section 409A and,
for purposes of any such provision of this Agreement, references to a
“termination,” “termination of employment” or like terms shall mean Separation
from Service. If the Executive is deemed on the date of termination
of his employment to be a “specified employee”, within the meaning of that term
under Section 409A(a)(2)(B) of the Code and using the identification methodology
selected by the Company from time to time, or if none, the default methodology,
then with regard to any payment or the providing of any benefit subject to this
Section 10.9.2, to the extent required to be delayed in compliance with Section
409A(a)(2)(B) of the Code, and any other payment or the provision of any other
benefit that is required to be delayed in compliance with Section 409A(a)(2)(B)
of the Code, such payment or benefit shall not be made or provided prior to the
earlier of (i) the expiration of the six-month period measured from the date of
the Executive’s Separation from Service or (ii) the date of the Executive’s
death. On the first day of the seventh month following the date of
Executive’s Separation from Service or, if earlier, on the date of his death,
all payments delayed pursuant to this Section 10.9.2 (whether they would have
otherwise been payable in a single sum or in installments in the absence of such
delay) shall be paid or reimbursed to the Executive in a lump sum, and any
remaining payments and benefits due under this Agreement shall be paid or
provided in accordance with the normal payment dates specified for them
herein. In addition to the foregoing, to the extent required by Code
Section 409A(a)(2)(B), prior to the occurrence of a Disability termination as
provided in this Agreement, the payment of any compensation to the Executive
under this Agreement shall be suspended for a period of six months commencing at
such time that the Executive shall be deemed to have had a Separation from
Service because either (A) a sick leave ceases to be a bona fide sick leave of
absence or (B) the permitted time period for a sick leave of absence expires (an
“SFS Disabiity”), without regard to whether such SFS Disability actually results
in a Disability termination. Promptly following the expriation of
such six-month period, all compensation suspended pursuant to the foregoing
sentence (whether it would have otherwise been payable in a single sum or
installments in the absence of such suspension) shall be paid or reimbursed to
the Executive in a lump sum. On any delayed payment date under this
Section 10.9.2, there shall be paid to the Executive or, if the Executive has
died, to his estate, in a single cash lump sum together with the payment of such
delayed payment, interest on the aggregate amount of such delayed payment at the
Delayed Payment Interest Rate (as defined below) computed from the date on which
such delayed payment otherwise would have been made to the Executive until the
date paid. For purposes of the foregoing, the “Delayed Payment Interest
Rate” shall mean the short term Applicable Federal Rate as of the
business day immediately preceding the payment date for the applicable delayed
payment.
10.9.3. Each
installment payable hereunder shall constitute a separate payment for purposes
of Treasury Regulation Section 1.409A-2(b), including Treasury Regulation
Section 1.409A-2(b)(2)(iii). Each payment that is made within the terms of the
“short-term deferral” rule set forth in Treasury Regulation Section
1.409A-1(b)(4) is intended to meet the “short-term deferral”
rule. Each other payment is intended to be a payment upon an
involuntary termination from service and payable pursuant to Treasury Regulation
Section 1.409A-1(b)(9)(iii), et. seq., to the maximum extent permitted by that
regulation, with any amount that is not excepted from Code Section 409A being
subject to Code Section 409A.
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10.9.4. With
regard to any provision herein that provides for reimbursement of costs and
expenses or in-kind benefits, except as permitted by Code Section 409A, (i) the
right to reimbursement or in-kind benefits is not subject to liquidation or
exchange for another benefit, (ii) the amount of expenses eligible for
reimbursement, or in-kind benefits, provided during any taxable year shall not
affect the expenses eligible for reimbursement, or in-kind benefits to be
provided, in any other taxable year, provided that the
foregoing clause (ii) shall not be violated with regard to expenses reimbursed
under any arrangement covered by Section 105(b) of the Code solely because such
expenses are subject to a limit related to the period the arrangement is in
effect and (iii) such payments shall be made on or before the last day of the
Executive’s taxable year following the taxable year in which the expense was
incurred.
10.9.5. Neither
the Company nor the Executive, individually or in combination, may accelerate
any payment or benefit that is subject to Section 409A, except in compliance
with Section 409A and the provisions of this Agreement, and no amount that is
subject to Section 409A shall be paid prior to the earliest date on which it may
be paid without violating Section 409A. The exercise date of any
stock right shall not be extended to a date that would cause the stock right to
be subject to Code Section 409A as a result of the extension.
[Remainder of
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THE
COMPANY:
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By:
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/s/ Xxxxxx X. Xxxx | |
Name: Xxxxxx X. Xxxx | |||
Title: President & CEO | |||
EXECUTIVE
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/s/
Xxxxxx Xxxxxx
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Xxxxxx
Xxxxxx
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