EMPLOYMENT AGREEMENT
Exhibit 10.2
This Employment Agreement (“Agreement”) is made as of the 22nd day of March, 2011,
between Aastrom Biosciences, Inc., a Michigan corporation (the “Company”), and Xxxxxx Xxxxxxx (the
“Executive”).
WHEREAS, the Company desires to employ the Executive and the Executive desires to be employed
by the Company on the terms contained herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and
other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties agree as follows:
1. Position and Duties. The Executive shall serve as the Vice President, Clinical and
Regulatory of the Company, and shall have such other powers and duties as may from time to time be
prescribed by the Chief Executive Officer of the Company (the “CEO”) or other authorized executive,
provided that such duties are consistent with the Executive’s position or other positions that she
may hold from time to time. The Executive shall devote her full working time and efforts to the
business and affairs of the Company. Notwithstanding the foregoing, the Executive may engage in
religious, charitable or other community activities as long as such services and activities are
disclosed to the Board and do not materially interfere with the Executive’s performance of her
duties to the Company as provided in this Agreement.
2. Compensation and Related Matters.
(a) Base Salary. The Executive’s initial annual base salary shall be $190,000. The
Executive’s base salary shall be redetermined annually by the CEO in consultation with the
Company’s Compensation Committee. The base salary in effect at any given time is referred to
herein as “Base Salary.” The Base Salary shall be payable in a manner that is consistent with the
Company’s usual payroll practices for senior executives.
(b) Incentive Compensation. The Executive shall be eligible to receive cash incentive
compensation as determined by the CEO in consultation with the Company’s Compensation Committee
from time to time. The Executive’s target annual incentive compensation shall be thirty percent
(30%) of her Base Salary. To be eligible for an incentive compensation payment, the Executive must
be employed by the Company on the day such incentive compensation is paid.
(c) Options. From time to time and at the discretion of management and the Board of
Directors, the Company will grant to the Executive options to purchase shares of the Company’s
common stock at an exercise price equal to the fair market value of the Company’s common stock on
the effective date of grant. Such options will be subject to the terms and conditions of the
Company’s 2009 Stock Option Plan, as may be amended and/or restated from time to time, or such
other similar equity plan and form of stock option agreement, in each case duly adopted by the
Company, and such options will be subject to approval by the Board of Directors.
(d) Expenses. The Executive shall be entitled to receive prompt reimbursement for all
reasonable expenses incurred by him in performing services hereunder, in accordance with the
policies and procedures then in effect and established by the Company for its senior executive
officers.
(e) Other Benefits. The Executive shall be entitled to continue to participate in or
receive benefits under all of the Company’s Employee Benefit Plans in effect on the date hereof, or
under plans or arrangements that provide the Executive with benefits at least substantially
equivalent to those provided under such Employee Benefit Plans. As used herein, the term “Employee
Benefit Plans” includes, without limitation, each pension and retirement plan; supplemental
pension, retirement and deferred compensation plan; savings and profit-sharing plan; stock
ownership plan; stock purchase plan; stock option plan; life insurance plan; medical insurance
plan; disability plan; and health and accident plan or arrangement established and maintained by
the Company on the date hereof for employees of the same status within the hierarchy of the
Company. The Executive shall be entitled to participate in or receive benefits under any employee
benefit plan or arrangement which may, in the future, be made available by the Company to its
executives and key management employees, subject to and on a basis consistent with the terms,
conditions and overall administration of such plan or arrangement. Any payments or benefits
payable to the Executive under a plan or arrangement referred to in this Section 2(d) in respect of
any calendar year during which the Executive is employed by the Company for less than the whole of
such year shall, unless otherwise provided in the applicable plan or arrangement, be prorated in
accordance with the number of days in such calendar year during which she is so employed. Should
any such payments or benefits accrue on a fiscal (rather than calendar) year, then the proration in
the preceding sentence shall be on the basis of a fiscal year rather than calendar year.
(f) Vacations. The Executive shall be entitled to accrue up to three (3) weeks paid
vacation days in each year, which shall be accrued ratably. The Executive shall also be entitled
to all paid holidays given by the Company to its executives.
3. Termination. The Executive’s employment hereunder may be terminated without any
breach of this Agreement under the following circumstances:
(a) Death. The Executive’s employment hereunder shall terminate upon her death.
(b) Disability. The Company may terminate the Executive’s employment if she is
disabled and unable to perform the essential functions of the Executive’s then existing position or
positions under this Agreement with or without reasonable accommodation for a period of 180 days
(which need not be consecutive) in any 12-month period. If any question shall arise as to whether
during any period the Executive is disabled so as to be unable to perform the essential functions
of the Executive’s then existing position or positions with or without reasonable accommodation,
the Executive may, and at the request of the Company shall, submit to the Company a certification
in reasonable detail by a physician selected by the Company to whom the Executive or the
Executive’s guardian has no reasonable objection as to whether the Executive is so disabled or how
long such disability is expected to continue, and such certification shall for the purposes of this
Agreement be conclusive of the issue. The
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Executive shall cooperate with any reasonable request of the physician in connection with such
certification. If such question shall arise and the Executive shall fail to submit such
certification, the Company’s determination of such issue shall be binding on the Executive.
Nothing in this Section 3(b) shall be construed to waive the Executive’s rights, if any, under
existing law including, without limitation, the Family and Medical Leave Act of 1993, 29 U.S.C.
§2601 et seq. and the Americans with Disabilities Act, 42 U.S.C. §12101 et seq.
(c) Termination by Company for Cause. The Company may terminate the Executive’s
employment hereunder for Cause by a vote of the Board at a meeting of the Board called and held for
such purpose. For purposes of this Agreement, “Cause” shall mean: (i) conduct by the Executive
constituting a material act of misconduct in connection with the performance of her duties,
including, without limitation, misappropriation of funds or property of the Company or any of its
subsidiaries or affiliates other than the occasional, customary and de minimis use of Company
property for personal purposes; (ii) the commission by the Executive of any felony or a misdemeanor
involving moral turpitude, deceit, dishonesty or fraud, or any conduct by the Executive that would
reasonably be expected to result in material injury or reputational harm to the Company or any of
its subsidiaries and affiliates if she were retained in her position; (iii) continued
non-performance by the Executive of her duties hereunder (other than by reason of the Executive’s
physical or mental illness, incapacity or disability) which has continued for more than 15 days
following written notice of such non-performance from the CEO; (iv) a breach by the Executive of
any of the provisions contained in Section 7 of this Agreement; (v) a material violation by the
Executive of the Company’s written employment policies, or (vi) failure to cooperate with a bona
fide internal investigation or an investigation by regulatory or law enforcement authorities, after
being instructed by the Company to cooperate, or the willful destruction or failure to preserve
documents or other materials known to be relevant to such investigation or the inducement of others
to fail to cooperate or to produce documents or other materials in connection with such
investigation.
(d) Termination Without Cause. The Company may terminate the Executive’s employment
hereunder at any time without Cause. Any termination by the Company of the Executive’s employment
under this Agreement which does not constitute a termination for Cause under Section 3(c) and does
not result from the death or disability of the Executive under Section 3(a) or (b) shall be deemed
a termination without Cause.
(e) Termination by the Executive. The Executive may terminate her employment
hereunder at any time for any reason, including but not limited to Good Reason. For purposes of
this Agreement, “Good Reason” shall mean that the Executive has complied with the “Good Reason
Process” (hereinafter defined) following the occurrence of any of the following events: (i) a
material diminution in the Executive’s responsibilities, authority or duties; (ii) a material
diminution in the Executive’s Base Salary except for across-the-board salary reductions based on
the Company’s financial performance similarly affecting all or substantially all senior management
employees of the Company; (iii) a material change in the geographic location of the Company’s
offices from its present location; or (iv) the material breach of this Agreement by the Company.
“Good Reason Process” shall mean that (i) the Executive reasonably determines in good faith that a
“Good Reason” condition has occurred; (ii) the Executive notifies the Company in writing of the
first occurrence of the Good Reason condition within 15 days of the first occurrence of such
condition; (iii) the Executive cooperates
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in good faith with the Company’s efforts, for a period not less than 15 days following such
notice (the “Cure Period”), to remedy the condition; (iv) notwithstanding such efforts, the Good
Reason condition continues to exist; and (v) the Executive terminates her employment within 15 days
after the end of the Cure Period. If the Company cures the Good Reason condition during the Cure
Period, Good Reason shall be deemed not to have occurred.
(f) Notice of Termination. Except for termination as specified in Section 3(a), any
termination of the Executive’s employment by the Company or any such termination by the Executive
shall be communicated by written Notice of Termination to the other party hereto. For purposes of
this Agreement, a “Notice of Termination” shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon.
(g) Date of Termination. “Date of Termination” shall mean: (i) if the Executive’s
employment is terminated by her death, the date of her death; (ii) if the Executive’s employment is
terminated on account of disability under Section 3(b) or by the Company for Cause under Section
3(c), the date on which Notice of Termination is given; (iii) if the Executive’s employment is
terminated by the Company under Section 3(d), 30 days after the date on which a Notice of
Termination is given; (iv) if the Executive’s employment is terminated by the Executive under
Section 3(e) without Good Reason, 30 days after the date on which a Notice of Termination is given,
and (v) if the Executive’s employment is terminated by the Executive under Section 3(e) with Good
Reason, the date on which a Notice of Termination is given after the end of the Cure Period.
Notwithstanding the foregoing, in the event that the Executive gives a Notice of Termination to the
Company, the Company may unilaterally accelerate the Date of Termination and such acceleration
shall not result in a termination by the Company for purposes of this Agreement.
4. Compensation Upon Termination.
(a) Termination Generally. If the Executive’s employment with the Company is
terminated for any reason, the Company shall pay or provide to the Executive (or to her authorized
representative or estate) any earned but unpaid base salary, incentive compensation earned but not
yet paid, unpaid expense reimbursements, accrued but unused vacation and any vested benefits the
Executive may have under any employee benefit plan of the Company (the “Accrued Benefit”) on or
before the time required by law but in no event more than 30 days after the Executive’s Date of
Termination.
(b) Termination by the Company Without Cause or by the Executive with Good Reason. If
the Executive’s employment is terminated by the Company without Cause as provided in Section 3(d),
or the Executive terminates her employment for Good Reason as provided in Section 3(e), then the
Company shall, through the Date of Termination, pay the Executive her Accrued Benefit. In
addition:
(i) subject to the Executive signing a general release of claims in favor of the
Company and related persons and entities in a form and manner satisfactory to the Company
(the “Release”) within the 21-day period following the Date of Termination and the
expiration of the seven-day revocation period for the Release, the Company shall pay the
Executive an amount equal to nine (9) months of the Executive’s
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Base Salary (the “Severance Amount”). The Severance Amount shall be paid out in
substantially equal installments in accordance with the Company’s payroll practice over nine
(9) months, beginning on the first payroll date that occurs 30 days after the Date of
Termination. Solely for purposes of Section 409A of the Internal Revenue Code of 1986, as
amended (the “Code”), each installment payment is considered a separate payment.
Notwithstanding the foregoing, if the Executive breaches any of the provisions contained in
Section 7 of this Agreement, all payments of the Severance Amount shall immediately cease;
and
(ii) upon the Date of Termination, all stock options and other stock-based awards held
by the Executive in which the Executive would have vested if she had remained employed for
an additional nine (9) months following the Date of Termination shall vest and become
exercisable or nonforfeitable as of the Date of Termination; and
(iii) subject to the Executive’s copayment of premium amounts at the active employees’
rate, the Executive may continue to participate in the Company’s group health, dental and
vision program for nine (9) months; provided, however, that the continuation of health
benefits under this Section shall reduce and count against the Executive’s rights under the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”).
5. Change in Control Payment. The provisions of this Section 5 set forth certain
terms of an agreement reached between the Executive and the Company regarding the Executive’s
rights and obligations upon the occurrence of a Change in Control of the Company. These provisions
are intended to assure and encourage in advance the Executive’s continued attention and dedication
to her assigned duties and her objectivity during the pendency and after the occurrence of any such
event. These provisions shall apply in lieu of, and expressly supersede, the provisions of Section
4(b) regarding severance pay and benefits upon a termination of employment, if such termination of
employment occurs within twelve (12) months after the occurrence of the first event constituting a
Change in Control. These provisions shall terminate and be of no further force or effect beginning
twelve (12) months after the occurrence of a Change in Control.
(a) Change in Control. If within twelve (12) months after a Change in Control, the
Executive’s employment is terminated by the Company without Cause as provided in Section 3(d) or
the Executive terminates her employment for Good Reason as provided in Section 3(e), then,
(i) subject to the signing of the Release by the Executive within 30 days after the
Date of Termination and the expiration of the seven-day revocation period for the Release,
the Company shall pay the Executive a lump sum in cash in an amount equal to twelve (12)
months of the Executive’s current Base Salary (or the Executive’s Base Salary in effect
immediately prior to the Change in Control, if higher). Such payment shall be paid on the
first payroll date that occurs 30 days after the Date of Termination; and
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(ii) notwithstanding anything to the contrary in any applicable option agreement or
stock-based award agreement, all stock options and other stock-based awards held by the
Executive shall immediately accelerate and become fully exercisable or nonforfeitable as of
the Date of Termination; and
(iii) subject to the Executive’s copayment of premium amounts at the active employees’
rate, the Executive may continue to participate in the Company’s group health, dental and
vision program for twelve (12) months; provided, however, that the continuation of health
benefits under this Section shall reduce and count against the Executive’s rights under
COBRA.
(b) Additional Limitation.
(i) Anything in this Agreement to the contrary notwithstanding, in the event that the
amount of any compensation, payment or distribution by the Company to or for the benefit of
the Executive, whether paid or payable or distributed or distributable pursuant to the terms
of this Agreement or otherwise, calculated in a manner consistent with Section 280G of the
Code and the applicable regulations thereunder (the “Severance Payments”), would be subject
to the excise tax imposed by Section 4999 of the Code, the following provisions shall apply:
(A) If the Severance Payments, reduced by the sum of (1) the Excise Tax and (2)
the total of the Federal, state, and local income and employment taxes payable by
the Executive on the amount of the Severance Payments which are in excess of the
Threshold Amount, are greater than or equal to the Threshold Amount, the Executive
shall be entitled to the full benefits payable under this Agreement.
(B) If the Threshold Amount is less than (x) the Severance Payments, but
greater than (y) the Severance Payments reduced by the sum of (1) the Excise Tax and
(2) the total of the Federal, state, and local income and employment taxes on the
amount of the Severance Payments which are in excess of the Threshold Amount, then
the Severance Payments shall be reduced (but not below zero) to the extent necessary
so that the sum of all Severance Payments shall not exceed the Threshold Amount. In
such event, the Severance Payments shall be reduced in the following order: (1) cash
payments not subject to Section 409A of the Code; (2) cash payments subject to
Section 409A of the Code; (3) equity-based payments and acceleration; and (4)
non-cash forms of benefits. To the extent any payment is to be made over time
(e.g., in installments, etc.), then the payments shall be reduced in reverse
chronological order.
(ii) For the purposes of this Section 5(b), “Threshold Amount” shall mean three times
the Executive’s “base amount” within the meaning of Section 280G(b)(3) of the Code and the
regulations promulgated thereunder less one dollar ($1.00); and “Excise Tax” shall mean the
excise tax imposed by Section 4999 of the Code, and any interest or penalties incurred by
the Executive with respect to such excise tax.
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(iii) The determination as to which of the alternative provisions of Section 5(b)(i)
shall apply to the Executive shall be made by a nationally recognized accounting firm
selected by the Company (the “Accounting Firm”), which shall provide detailed supporting
calculations both to the Company and the Executive within 15 business days of the Date of
Termination, if applicable, or at such earlier time as is reasonably requested by the
Company or the Executive. For purposes of determining which of the alternative provisions
of Section 5(b)(i) shall apply, the Executive shall be deemed to pay federal income taxes at
the highest marginal rate of federal income taxation applicable to individuals for the
calendar year in which the determination is to be made, and state and local income taxes at
the highest marginal rates of individual taxation in the state and locality of the
Executive’s residence on the Date of Termination, net of the maximum reduction in federal
income taxes which could be obtained from deduction of such state and local taxes. Any
determination by the Accounting Firm shall be binding upon the Company and the Executive.
(b) Definitions. For purposes of this Section 5, the following terms shall have the
following meanings:
“Change in Control” shall mean any of the following:
(i) any “person,” as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the “Act”) (other than the Company, any of its
subsidiaries, or any trustee, fiduciary or other person or entity holding securities under
any employee benefit plan or trust of the Company or any of its subsidiaries), together with
all “affiliates” and “associates” (as such terms are defined in Rule 12b-2 under the Act) of
such person, shall become the “beneficial owner” (as such term is defined in Rule 13d-3
under the Act), directly or indirectly, of securities of the Company representing 50 percent
or more of the combined voting power of the Company’s then outstanding securities having the
right to vote in an election of the Board (“Voting Securities”) (in such case other than as
a result of an acquisition of securities directly from the Company); or
(ii) the consummation of (A) any consolidation or merger of the Company where the
stockholders of the Company, immediately prior to the consolidation or merger, would not,
immediately after the consolidation or merger, beneficially own (as such term is defined in
Rule 13d-3 under the Act), directly or indirectly, shares representing in the aggregate more
than 50 percent of the voting shares of the Company issuing cash or securities in the
consolidation or merger (or of its ultimate parent corporation, if any), or (B) any sale or
other transfer (in one transaction or a series of transactions contemplated or arranged by
any party as a single plan) of all or substantially all of the assets of the Company.
Notwithstanding the foregoing, a “Change in Control” shall not be deemed to have occurred for
purposes of the foregoing clause (i) solely as the result of an acquisition of securities by the
Company which, by reducing the number of shares of Voting Securities outstanding, increases the
proportionate number of Voting Securities beneficially owned by any person to 50 percent or more of
the combined voting power of all of the then outstanding Voting
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Securities; provided, however, that if any person referred to in this sentence shall
thereafter become the beneficial owner of any additional shares of Voting Securities (other than
pursuant to a stock split, stock dividend, or similar transaction or as a result of an acquisition
of securities directly from the Company) and immediately thereafter beneficially owns 50 percent or
more of the combined voting power of all of the then outstanding Voting Securities, then a “Change
in Control” shall be deemed to have occurred for purposes of the foregoing clause (i).
6. Section 409A.
(a) Anything in this Agreement to the contrary notwithstanding, if at the time of the
Executive’s separation from service within the meaning of Section 409A of the Code, the Company
determines that the Executive is a “specified employee” within the meaning of Section
409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes
entitled to under this Agreement on account of the Executive’s separation from service would be
considered deferred compensation subject to the 20 percent additional tax imposed pursuant to
Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code,
such payment shall not be payable and such benefit shall not be provided until the date that is the
earlier of (A) six months and one day after the Executive’s separation from service, or (B) the
Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis,
the first payment shall include a catch-up payment covering amounts that would otherwise have been
paid during the six-month period but for the application of this provision, and the balance of the
installments shall be payable in accordance with their original schedule.
(b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement
shall be provided by the Company or incurred by the Executive during the time periods set forth in
this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in
no event shall any reimbursement be paid after the last day of the taxable year following the
taxable year in which the expense was incurred. The amount of in-kind benefits provided or
reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be
provided or the expenses eligible for reimbursement in any other taxable year. Such right to
reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit.
(c) To the extent that any payment or benefit described in this Agreement constitutes
“non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such
payment or benefit is payable upon the Executive’s termination of employment, then such payments or
benefits shall be payable only upon the Executive’s “separation from service.” The determination
of whether and when a separation from service has occurred shall be made in accordance with the
presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(d) The parties intend that this Agreement will be administered in accordance with Section
409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its
compliance with Section 409A of the Code, the provision shall be read in such a manner so that all
payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may
be amended, as reasonably requested by either party, and as may be
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necessary to fully comply with Section 409A of the Code and all related rules and regulations
in order to preserve the payments and benefits provided hereunder without additional cost to either
party.
(e) The Company makes no representation or warranty and shall have no liability to the
Executive or any other person if any provisions of this Agreement are determined to constitute
deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or
the conditions of, such Section.
7. Confidential Information, Noncompetition and Cooperation.
(a) Confidential Information. As used in this Agreement, “Confidential Information”
means information belonging to the Company which is of value to the Company in the course of
conducting its business and the disclosure of which could result in a competitive or other
disadvantage to the Company. Confidential Information includes, without limitation, financial
information, reports, and forecasts; inventions, improvements and other intellectual property;
trade secrets; know-how; designs, processes or formulae; software; market or sales information or
plans; customer lists; and business plans, prospects and opportunities (such as possible
acquisitions or dispositions of businesses or facilities) which have been discussed or considered
by the management of the Company. Confidential Information includes information developed by the
Executive in the course of the Executive’s employment by the Company, as well as other information
to which the Executive may have access in connection with the Executive’s employment. Confidential
Information also includes the confidential information of others with which the Company has a
business relationship. Notwithstanding the foregoing, Confidential Information does not include
information in the public domain, unless due to breach of the Executive’s duties under Section
7(b).
(b) Confidentiality. The Executive understands and agrees that the Executive’s
employment creates a relationship of confidence and trust between the Executive and the Company
with respect to all Confidential Information. At all times, both during the Executive’s employment
with the Company and after its termination, the Executive will keep in confidence and trust all
such Confidential Information, and will not use or disclose any such Confidential Information
without the written consent of the Company, except as may be necessary in the ordinary course of
performing the Executive’s duties to the Company.
(c) Documents, Records, etc. All documents, records, data, apparatus, equipment and
other physical property, whether or not pertaining to Confidential Information, which are furnished
to the Executive by the Company or are produced by the Executive in connection with the Executive’s
employment will be and remain the sole property of the Company. The Executive will return to the
Company all such materials and property as and when requested by the Company. In any event, the
Executive will return all such materials and property immediately upon termination of the
Executive’s employment for any reason. The Executive will not retain with the Executive any such
material or property or any copies thereof after such termination.
(d) Noncompetition and Nonsolicitation. During the Executive’s employment with the
Company and for twelve (12) months thereafter, regardless of the reason for the
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termination, the Executive (i) will not, directly or indirectly, whether as owner, partner,
shareholder, consultant, agent, employee, co-venturer or otherwise, engage, participate, assist or
invest in any Competing Business (as hereinafter defined); (ii) will refrain from directly or
indirectly employing, attempting to employ, recruiting or otherwise soliciting, inducing or
influencing any person to leave employment with the Company (other than terminations of employment
of subordinate employees undertaken in the course of the Executive’s employment with the Company);
and (iii) will refrain from soliciting or encouraging any customer or supplier to terminate or
otherwise modify adversely its business relationship with the Company. The Executive understands
that the restrictions set forth in this Section 7(d) are intended to protect the Company’s interest
in its Confidential Information and established employee, customer and supplier relationships and
goodwill, and agrees that such restrictions are reasonable and appropriate for this purpose. For
purposes of this Agreement, the term “Competing Business” shall mean an autologous or allogeneic
cell therapy technology business focused on the development of therapies for the treatment of
severe, chronic cardiovascular diseases conducted anywhere in the world which is competitive with
the business which the Company or any of its affiliates at any time during the employment of the
Executive. Notwithstanding the foregoing, the Executive may own up to one percent (1%) of the
outstanding stock of a publicly held corporation which constitutes or is affiliated with a
Competing Business.
(e) Third-Party Agreements and Rights. The Executive hereby confirms that the
Executive is not bound by the terms of any agreement with any previous employer or other party
which restricts in any way the Executive’s use or disclosure of information or the Executive’s
engagement in any business. The Executive represents to the Company that the Executive’s execution
of this Agreement, the Executive’s employment with the Company and the performance of the
Executive’s proposed duties for the Company will not violate any obligations the Executive may have
to any such previous employer or other party. In the Executive’s work for the Company, the
Executive will not disclose or make use of any information in violation of any agreements with or
rights of any such previous employer or other party, and the Executive will not bring to the
premises of the Company any copies or other tangible embodiments of non-public information
belonging to or obtained from any such previous employment or other party.
(f) Litigation and Regulatory Cooperation. During and after the Executive’s
employment, the Executive shall cooperate fully with the Company in the defense or prosecution of
any claims or actions now in existence or which may be brought in the future against or on behalf
of the Company which relate to events or occurrences that transpired while the Executive was
employed by the Company. The Executive’s full cooperation in connection with such claims or
actions shall include, but not be limited to, being available to meet with counsel to prepare for
discovery or trial and to act as a witness on behalf of the Company at mutually convenient times.
During and after the Executive’s employment, the Executive also shall cooperate fully with the
Company in connection with any investigation or review of any federal, state or local regulatory
authority as any such investigation or review relates to events or occurrences that transpired
while the Executive was employed by the Company. The Company shall reimburse the Executive for any
reasonable out-of-pocket expenses incurred in connection with the Executive’s performance of
obligations pursuant to this Section 7(f).
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(g) Injunction. The Executive agrees that it would be difficult to measure any
damages caused to the Company which might result from any breach by the Executive of the promises
set forth in this Section 7, and that in any event money damages would be an inadequate remedy for
any such breach. Accordingly, subject to Section 8 of this Agreement, the Executive agrees that if
the Executive breaches, or proposes to breach, any portion of this Agreement, the Company shall be
entitled, in addition to all other remedies that it may have, to an injunction or other appropriate
equitable relief to restrain any such breach without showing or proving any actual damage to the
Company.
8. Arbitration of Disputes. Any controversy or claim arising out of or relating to
this Agreement or the breach thereof or otherwise arising out of the Executive’s employment or the
termination of that employment (including, without limitation, any claims of unlawful employment
discrimination whether based on age or otherwise) shall, to the fullest extent permitted by law, be
settled by arbitration in any forum and form agreed upon by the parties or, in the absence of such
an agreement, under the auspices of the American Arbitration Association (“AAA”) in Detroit,
Michigan in accordance with the Employment Dispute Resolution Rules of the AAA, including, but not
limited to, the rules and procedures applicable to the selection of arbitrators. In the event that
any person or entity other than the Executive or the Company may be a party with regard to any such
controversy or claim, such controversy or claim shall be submitted to arbitration subject to such
other person or entity’s agreement. Judgment upon the award rendered by the arbitrator may be
entered in any court having jurisdiction thereof. This Section 8 shall be specifically
enforceable. Notwithstanding the foregoing, this Section 8 shall not preclude either party from
pursuing a court action for the sole purpose of obtaining a temporary restraining order or a
preliminary injunction in circumstances in which such relief is appropriate; provided that any
other relief shall be pursued through an arbitration proceeding pursuant to this Section 8.
9. Consent to Jurisdiction. To the extent that any court action is permitted
consistent with or to enforce Section 8 of this Agreement, the parties hereby consent to the
jurisdiction of the Superior Court of the State of Michigan and the United States District Court
for the District of Michigan. Accordingly, with respect to any such court action, the Executive
(a) submits to the personal jurisdiction of such courts; (b) consents to service of process; and
(c) waives any other requirement (whether imposed by statute, rule of court, or otherwise) with
respect to personal jurisdiction or service of process.
10. Integration. This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and supersedes all prior agreements between the parties
concerning such subject matter, including without limitation the Employment Agreement by and
between the Company and the Executive dated as of January 14, 2010.
11. Withholding. All payments made by the Company to the Executive under this
Agreement shall be net of any tax or other amounts required to be withheld by the Company under
applicable law.
12. Successor to the Executive. This Agreement shall inure to the benefit of and be
enforceable by the Executive’s personal representatives, executors, administrators, heirs,
distributees, devisees and legatees. In the event of the Executive’s death after her termination
of
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employment but prior to the completion by the Company of all payments due him under this
Agreement, the Company shall continue such payments to the Executive’s beneficiary designated in
writing to the Company prior to her death (or to her estate, if the Executive fails to make such
designation).
13. Enforceability. If any portion or provision of this Agreement (including, without
limitation, any portion or provision of any section of this Agreement) shall to any extent be
declared illegal or unenforceable by a court of competent jurisdiction, then the remainder of this
Agreement, or the application of such portion or provision in circumstances other than those as to
which it is so declared illegal or unenforceable, shall not be affected thereby, and each portion
and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by
law.
14. Survival. The provisions of this Agreement shall survive the termination of this
Agreement and/or the termination of the Executive’s employment to the extent necessary to
effectuate the terms contained herein.
15. Waiver. No waiver of any provision hereof shall be effective unless made in
writing and signed by the waiving party. The failure of any party to require the performance of
any term or obligation of this Agreement, or the waiver by any party of any breach of this
Agreement, shall not prevent any subsequent enforcement of such term or obligation or be deemed a
waiver of any subsequent breach.
16. Notices. Any notices, requests, demands and other communications provided for by
this Agreement shall be sufficient if in writing and delivered in person or sent by a nationally
recognized overnight courier service or by registered or certified mail, postage prepaid, return
receipt requested, to the Executive at the last address the Executive has filed in writing with the
Company or, in the case of the Company, at its main offices, attention of the Board.
17. Amendment. This Agreement may be amended or modified only by a written instrument
signed by the Executive and by a duly authorized representative of the Company.
18. Governing Law. This is a Michigan contract and shall be construed under and be
governed in all respects by the laws of the State of Michigan, without giving effect to the
conflict of laws principles of such State. With respect to any disputes concerning federal law,
such disputes shall be determined in accordance with the law as it would be interpreted and applied
by the United States Court of Appeals for the Sixth Circuit.
19. Counterparts. This Agreement may be executed in any number of counterparts, each
of which when so executed and delivered shall be taken to be an original; but such counterparts
shall together constitute one and the same document.
20. Successor to Company. The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the
business or assets of the Company expressly to assume and agree to perform this Agreement to the
same extent that the Company would be required to perform it if no succession had taken place.
Failure of the Company to obtain an assumption of this Agreement at or prior to the effectiveness
of any succession shall be a material breach of this Agreement.
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21. Gender Neutral. Wherever used herein, a pronoun in the masculine gender shall be
considered as including the feminine gender unless the context clearly indicates otherwise.
IN WITNESS WHEREOF, the parties have executed this Agreement effective on the date and year
first above written.
| AASTROM BIOSCIENCES, INC. | ||||||
| /s/ XXXXXXX X. XXXXXXXX | ||||||
| By: | Xxx X. Xxxxxxxx | |||||
| Its: | CEO and President | |||||
| EXECUTIVE | ||||||
| /s/ XXXXXX XXXXXXX | ||||||
| Xxxxxx Xxxxxxx | ||||||
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