EXHIBIT 10.1
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (this "AGREEMENT"), dated as of August12,
2004 (the "EFFECTIVE DATE"), is by and between Vaso Active Pharmaceuticals,
Inc., a Delaware corporation (the "Company"), and Xxxx X. Masiz ("Mr. Masiz" ).
Unless otherwise set forth herein, defined terms used herein shall have the
meaning set forth in Section 18 hereof. This, Agreement supersedes the
Employment Agreement dated June 16, 2003 between the Company and Mr. Masiz.,
which is hereby terminated
WHEREAS, the Company recognizes that Mr. Masiz is a key employee of the
Company, that he has made an important contribution to the Company and that his
continued employment by the Company is critical to the growth and success of the
business of the Company; and
WHEREAS, as an inducement for Mr. Masiz to remain in the employ of the
Company, the Company determined that it would be in the best interests of the
Company and Mr. Masiz to make certain that Mr. Masiz received fair and adequate
compensation for his services.
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the parties
hereto hereby agree as follows:
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1. EMPLOYMENT. Upon the terms and subject to the conditions set forth
herein, the Company hereby continues to employ Mr. Masiz and Mr. Masiz hereby
agrees to continue to provide his services to the Company pursuant to the terms
of this Agreement. Mr. Masiz shall report to the chief executive officer of the
Company.
2. TERM; EMPLOYMENT PERIOD. Unless Mr. Masiz's employment shall sooner
terminate pursuant to Section 8 hereof, the Company shall employ Mr. Masiz for
an initial term commencing on the Effective Date and terminating on June 30,
2008 (such term, together with any extensions thereof in accordance with the
next sentence of this Section 2, referred to as the "TERM"). The initial term of
Mr. Masiz's employment hereunder shall thereafter be deemed to be automatically
extended, upon the same terms and conditions, for successive periods of two
years each, unless either party, at least three (3) months prior to the
expiration of the initial term or any extended term, shall give written notice
(a "NON-RENEWAL NOTICE") to the other of its intention not to renew such
employment term. The period commencing on the Effective Date and ending on the
Date of Termination (as defined in Section 8(h) hereof) shall be referred to as
the "EMPLOYMENT PERIOD."
3. DUTIES AND RESPONSIBILITIES.. During the Employment Period, Mr.
Masiz shall serve as a strategic consultant to the Company regarding sales,
marketing, business development and strategic planning. Mr. Masiz shall not
serve as a director or officer of the Company; nor shall he perform or assume
responsibility for the duties or responsibilities of any officer or director of
the Company. Mr. Masiz will devote all of his skill, knowledge and substantially
all of his business or working time (except for reasonable vacation time and
absence for sickness), and except for the time that he dedicates to his service
as an officer, director, and/or employee of Biochemics or any of its
subsidiaries or affiliates (hereinafter referred to as Biochemics), to the
conscientious performance of such duties. Each of the Company and Mr. Masiz
recognize that Mr. Masiz is also the president and chief executive officer of
BioChemics and that Mr. Masiz devotes some of his business or working time to
the performance of his duties to BioChemics. Mr. Masiz represents and warrants
to the Company that he is entering into this Agreement voluntarily and that his
employment hereunder and compliance by him with the terms and conditions of this
Agreement will not directly conflict with or result in the breach of any
agreement to which he is a party or by which he may be bound (including any
agreement that may restrict or inhibit Mr. Masiz ability to compete).
4. BASE SALARY. The Company will pay Mr. Masiz a base salary, payable
in accordance with the Company's customary payroll practices, at the annual rate
of $175,000 (U.S.) for the year 2004 as compensation for the services to be
performed by Mr. Masiz. During the Employment Period, the base salary of
$175,000 per year may be increased (but not decreased) from time to time. (The
annual base salary payable to Mr. Masiz under this Section 4 shall hereinafter
be referred to as the "BASE SALARY").
5. INCENTIVE COMPENSATION; OPTIONS.
(a) INCENTIVE COMPENSATION. During the Employment Period, Mr.
Masiz shall participate in the Company's incentive compensation programs for its
employees existing from time to time, including, without limitation, an annual
performance bonus program pursuant to which Mr. Masiz shall be entitled to
receive an annual incentive award for each fiscal year. The parties agree that
no incentive award shall be payable for the year 2004. The Company shall
establish objectives in advance of each fiscal year and Mr. Masiz's performance
shall be assessed in light of the same. The Company's determinations regarding
Mr. Masiz's performance and the extent of any incentive bonus payable to Mr.
Masiz shall be final and absolute. Notwithstanding any other provision to the
contrary, nothing herein shall preclude the grant of a discretionary bonus to
Mr. Masiz by the Company.
(b) Options. The Stock Option Agreement dated June 16, 2003
between the Company and Mr. Masiz, a copy of which is attached hereto as exhibit
A, remains in full force and effect.
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(i) In the event of change in capitalization of the
Company as result of stock split, merger, reorganization, consolidation,
recapitalization, stock dividend or other significant corporate transaction
that, in the sole discretion of the Board of directors of the applicable
company(ies), materially affects the Options, the Board will make a
corresponding equitable adjustment in the exercise price of the Options per
share of as it determines, in its sole discretion, to be necessary so that, upon
exercise, the adjustment shall reflect any change in value of the shares.
Nothing in this section shall require the Board to consider an adjustment in the
event the Company issues additional shares, or to require the Board to treat
this term to be an anti-dilution adjustment. The parties only intend the scope
of this section to permit equitable adjustment in the event of a change in
capitalization as described above.
(ii) Mr. Masiz shall have the right to designate all
or any portion of the Options as "non-qualified stock options" which may be
transferable by Mr. Masiz to his spouse, lineal descendants and/or trusts for
their benefit; PROVIDED such transfer and the transferred Options remain subject
to the terms and provisions of the 2003 Stock Incentive Plan.
(iii) The Options shall, except as otherwise provided
herein or in the applicable Stock Option Agreement, become vested 50% on the
date of grant and the balance in two equal annual installments of 25% on each of
the first two anniversaries of the date of grant, subject, in the case of each
installment, to Mr. Masiz's continued employment with the Company until the
applicable vesting date for such installment, PROVIDED that in the event of
termination of Mr. Masiz's employment with the Company by the Company Without
Cause, termination of Mr. Masiz's employment with the Company by Mr. Masiz for
Good Reason, or upon a Change in Control (in each case, as defined herein), the
unvested portion of the Options shall become vested as of the applicable Date of
Termination or, in the event of a Change in Control, as of the date on which the
Change in Control is effectuated (the "CHANGE IN CONTROL DATE").
6. EMPLOYEE BENEFITS. During the Employment Period, Mr. Masiz shall
participate in all employee benefit plans and programs of the Company
(including, without limitation, any medical, dental, vision, prescription drug,
flexible benefits, short-term and long-term disability, group term and
supplemental life insurance, accidental death and dismemberment, savings and
retirement plans maintained by the Company) (the "Benefits") in accordance with
the Company's standard policies for its employees, and shall be entitled to
receive benefits no less favorable than those provided to any other employee of
the Company.
7. BUSINESS EXPENSES.
(a) REIMBURSEMENT OF EXPENSES. The Company shall reimburse Mr.
Masiz for reasonable expenses incurred in connection with his employment by the
Company, including, without limitation, reasonable travel, lodging and meal
expenses incurred by him in connection with his performance of services
hereunder upon submission of evidence, reasonably satisfactory to the Company,
of the incurrence and purpose of each such expense.
(b) VACATION. Mr. Masiz shall be entitled to four weeks of
paid vacation per year, or such other longer period as the Company may determine
to be appropriate.
(c) AUTOMOBILE. The Company shall provide Mr. Masiz with a
monthly allowance to offset the cost of the acquisition and maintenance, or the
leasing and maintenance, of an automobile (comparable to Mr. Masiz 's automobile
as of the date hereof or as otherwise mutually determined by the Company and Mr.
Masiz), for use by Mr. Masiz in connection with the performance by him of his
duties under this Agreement.
8. TERMINATION OF EMPLOYMENT.
(a) DEATH. Mr. Masiz 's employment hereunder shall
automatically terminate upon the death of Mr. Masiz.
(b) DISABILITY. The Company shall be entitled to terminate Mr.
Masiz's employment hereunder if, as a result of his disability (as defined
below), Mr. Masiz shall have been absent from his duties hereunder on a
full-time basis for an aggregate of more than 180 days during any 18 month
period. "DISABILITY" means Mr. Masiz 's inability to perform substantially his
regular duties by reason of illness or other physical or mental incapacity
expected to be of long-term or indefinite duration as determined by an
independent physician selected reasonably and in good faith by the Company.
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(c) VOLUNTARY RESIGNATION. Should Mr. Masiz wish to resign
from his position with the Company during the Term, he shall give no less than
60 days' written notice to the Company, setting forth the reasons and specifying
the date as of which his resignation is to become effective. For purposes of
this Agreement, Mr. Masiz's termination of his employment by voluntary
resignation shall not include Mr. Masiz's termination of his employment for Good
Reason, but shall include termination of his employment due to the delivery of a
Non-Renewal Notice by Mr. Masiz pursuant to Section 2.
(d) CAUSE. The Company may terminate Mr. Masiz's employment
hereunder for Cause. For purposes of this Agreement, "CAUSE" shall mean only
those acts or practices specified below in subparagraphs (i) to (iv) occurring
after the Effective Date of this Agreement:
(i) any material fraud, misappropriation, or
embezzlement by Mr. Masiz in connection with the operation of the business of
the Company; or
(ii) Mr. Masiz's conviction of a felony or entry of a
plea of guilty or nolo contendre with respect to a felony charge; or
(iii) Mr. Masiz's material breach of the Company's
written policies of conduct generally applicable to employees of the Company,
which breach has not been cured within 30 days after a written demand for
substantial performance is delivered to Mr. Masiz by the Company in accordance
with Section 16; or
(iv) a material breach by Mr. Masiz of any material
term of this Agreement, which breach has not been cured within 30 days after a
written demand for substantial performance is delivered to Mr. Masiz by the
Company in accordance with Section 16.
(e) GOOD REASON. Mr. Masiz may terminate his employment
hereunder for Good Reason. For purposes of this Agreement, "GOOD REASON" shall
mean a termination of Mr. Masiz's employment with the Company by Mr. Masiz
within 30 days (including any cure period) following:
(i) a material reduction in Mr. Masiz's rate of Base
Salary, incentive compensation or employee benefits; or
(ii) the material breach by the Company of a material
term of this Agreement; PROVIDED, that the Company will have received written
notice from Mr. Masiz pursuant to Section hereof which notice reasonably sets
forth the manner in which the Company has committed such breach and the Company
shall have been provided a period of 30 days to cure such breach; or
(iii) any material diminution in Mr. Masiz's duties,
or responsibilities; or
(iv) any requirement by the Company that Mr. Masiz
relocate to or be permanently based anywhere other than at a facility or
location located within a 100 mile radius of Boston, Massachusetts after the
Effective Date; or
(v) any material adverse change to any stock
incentive or option plan governing the Options; or
(vi) any failure to obtain assumption of this
Agreement, the Options and any related stock incentive plan by the acquirer in
the event of a Change in Control.
(f) TERMINATION WITHOUT CAUSE. A termination "WITHOUT CAUSE"
shall mean a termination of Mr. Masiz's employment by the Company for reasons
other than Disability pursuant to Section 8(b) hereof or Cause pursuant to
Section 8(d) hereof.
(g) NOTICE OF TERMINATION. Any purported termination of Mr.
Masiz's employment by the Company or by Mr. Masiz shall be communicated by
written Notice of Termination to the other party hereto in accordance with
Section 16. "NOTICE OF TERMINATION" shall mean a notice stating that Mr. Masiz's
employment hereunder has been or will be terminated, indicating the specific
termination provision in this Agreement relied upon and setting forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of Mr. Masiz's employment under the provision so indicated.
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(h) DATE OF TERMINATION. As used in this Agreement, the term
"DATE OF TERMINATION" shall mean (i) if Mr. Masiz's employment is terminated
because of death, the date of his death, (ii) if Mr. Masiz's employment is
terminated by the Company for Cause, by the Company Without Cause or due to his
Disability, the date on which Notice of Termination is delivered as contemplated
by Section 8(g) or, if later, the date of termination specified in such notice,
(iii) if Mr. Masiz's employment is terminated by Mr. Masiz, on the date on which
Notice of Termination is delivered as contemplated by Section 8(g) or, if later,
the date of termination set forth in the Notice of Termination given by Mr.
Masiz, or on the date he resigns or leaves employment if no notice is given by
Mr. Masiz, or (iv) if this Agreement expires at the end of its Term, the date of
such expiration.
9. COMPENSATION UPON CERTAIN TERMINATIONS.
(a) In the event of a termination of Mr. Masiz's employment by
the Company Without Cause or a termination by Mr. Masiz of his employment for
Good Reason (other than termination for Good Reason within 12 months of a Change
in Control), subject to Section 9(a)(i), the Company shall pay Mr. Masiz his
full Base Salary through the Date of Termination and, as liquidated damages, the
following additional amounts and benefits:
(i) regular installments of Mr. Masiz's then-current
Base Salary for the period from the Date of Termination and ending on the last
day of the Employment Period PLUS ----
(ii) the product of (x) the incentive compensation
award that would have been payable to Mr. Masiz for the fiscal year of the
Company that includes the Date of Termination had Mr. Masiz continued in
employment through the last day of such fiscal year multiplied by (y) a
fraction, the numerator of which is equal to the number of calendar days in such
fiscal year that have elapsed as of the Date of Termination and the denominator
of which is equal to 365, PLUS
(iii) subject to the terms and provisions of the
benefit plans providing such benefits and applicable law, the Company shall
continue to provide to Mr. Masiz the benefits (other than disability insurance
and active participation in savings and retirement plans) referred to in Section
6 for the period during which the Company is obligated to continue paying Mr.
Masiz's Base Salary pursuant to Section 9(a)(i); PLUS
(iv) any amounts subject to reimbursement under any
other Section of this Agreement (including, without limitation, Section 7) and
unpaid as of the Date of Termination; LESS ----
(v) any amount paid, payable or to be paid to Mr.
Masiz under the terms of any severance plan or program as in effect on the Date
of Termination; LESS
(vi) any debts owed to the Company by Mr. Masiz.
Any salary continuation payment and benefits coverage to which
Mr. Masiz may be entitled pursuant to Section 9(a) shall not be reduced or
canceled if Mr. Masiz obtains any new employment (including self-employment).
(b) In the event of a termination of Mr. Masiz's employment by
Mr. Masiz for Good Reason within 12 months of a Change in Control, the Company
shall pay Mr. Masiz his full Base Salary through the Date of Termination and, as
liquidated damages, the following additional amounts and benefits:
(i) a lump sum payment equal to two times the Base
Salary in effect on the Date of Termination, PLUS
(ii) the product of (x) the incentive compensation
award that would have been payable to Mr. Masiz for the fiscal year of the
Company that includes the Date of Termination had he continued in employment
through the last day of such fiscal year multiplied by (y) a fraction, the
numerator of which is equal to the number of calendar days in such fiscal year
that have elapsed as of the Date of Termination and the denominator of which is
equal to 365, PLUS
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(iii) subject to the terms and provisions of the
benefit plans providing such benefits and applicable law, the Company shall
continue to provide to Mr. Masiz benefits substantially the same as those
referred to in Section 6 (other than disability insurance and active
participation in savings and retirement plans) until the second anniversary of
the Date of Termination; PROVIDED that such welfare benefits will terminate
earlier if Mr. Masiz obtains new employment with a comparable level of benefits;
PLUS
(iv) any amounts subject to reimbursement under any
other Section of this Agreement (including, without limitation, Section 7) and
unpaid as of the Date of Termination; LESS
(v) any amount paid, payable or to be paid to Mr.
Masiz under the terms of any severance plan or program as in effect on the Date
of Termination; LESS
(vi) any debts owed to the Company by Mr. Masiz.
(c) If, during the Employment Period, Mr. Masiz shall
terminate his employment for other than Good Reason (E.G., a voluntary
resignation by him pursuant to Section 8(c)) or if the Company shall terminate
Mr. Masiz's employment for cause or his employment shall terminate due to his
death or Disability during the Term, the Company shall pay Mr. Masiz (i) his
full Base Salary through the Date of Termination (or, in the case of death, one
month following the Date of Termination), PLUS (ii) in the event of death or
Disability, Mr. Masiz shall receive a pro-rata portion of the incentive
compensation award that would have been payable to him for the fiscal year
during which employment was terminated, PLUS (iii) any amounts subject to
reimbursement under any other Section of this Agreement (including, without
limitation, Section 7) and unpaid as of the Date of Termination, LESS (iv) any
debts owed to the Company by Mr. Masiz.
(d) In addition to and without limiting any amounts or
benefits to which Mr. Masiz may be entitled under any other provision of this
Agreement, he shall be entitled, upon any termination of his employment by
either party for any or no reason, including, without limitation, any
non-renewal of the Term, to receive all amounts payable and benefits accrued
under any otherwise applicable plan, policy, program or practice of Company in
which Mr. Masiz was a participant during his employment with Company in
accordance with the terms thereof and applicable law, PROVIDED that (x) Mr.
Masiz shall not be entitled to receive any payments or benefits under any such
plan, policy, program or practice providing any bonus or incentive compensation
(and the provisions of this Section 9 shall supersede the provisions of any such
plan, policy, program or practice), and (y) the amount, if any, paid or payable
to Mr. Masiz under the terms of any such plan, policy, program or practice
relating to severance shall reduce the amounts payable under Section 9 in the
manner provided in clauses (v) of Sections 9(a) and 9(b) hereof.
10. RIGHT TO INDEMNIFICATION. (a) If Mr. Masiz is made a party or is
threatened to be made a party or is otherwise involved (including as a witness
or a deponent) in any action, lawsuit, arbitration, appeal, investigation or
other proceeding, whether civil, criminal, administrative or corporate
(hereinafter a "Proceeding") by reason of the fact that he is or was an employee
of the Company or by reason of any decision, practice, course of conduct or
other action taken by Mr. Masiz while serving as an employee of the Company, Mr.
Masiz shall be indemnified and held harmless by the Company to the fullest
extent authorized by applicable law against all expenses, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid in settlement) reasonably incurred or suffered by Mr. Masiz in
connection therewith.
(b) The Company's Obligation to indemnify Mr. Masiz shall
continue after Mr. Masiz has ceased to be an employee of the Company and shall
inure to the benefit of his heirs, executors, administrators and assigns.
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(c) The term "Expense" shall include all reasonable attorneys'
and accountants' fees, retainers, court costs, transcript costs, fees of
experts, witness fees, travel expenses, duplicating costs, printing and binding
costs, telephone charges, postage, delivery service fees, and all other
disbursements or expenses of the types customarily incurred in connection with
prosecuting, defending, preparing to prosecute or defend, investigating, being
or preparing to be a witness in, or otherwise being involved with a proceeding.
Expenses also shall include Expenses incurred in connection with any appeal
resulting from any lawsuit, arbitration, action or other proceeding, including
without limitation the premium, security for, and other costs relating to any
appeal bond or its equivalent. The Company shall promptly pay each and every
Expense in advance of final disposition of a Proceeding upon written request to
make such payment by Mr. Masiz.
11. NON-COMPETITION. During the period of Mr. Masiz's employment
hereunder and during the period, if any, during which payments are required to
be made to Mr. Masiz by the Company, Mr. Masiz shall not, within any state in
which the Company or any subsidiary of the Company at the time of his
termination from the Company is duly qualified to do business, or in any state
in which the Company is then providing services or marketing its services (or
engaged in active discussions to provide such services), or within a one hundred
(100) mile radius of any such state, directly or indirectly own any interest in,
manage, control, participate in, consult with, render services for, or in any
manner engage in any over the counter pharmaceutical business engaged in by the
Company (unless the Board of Directors shall have authorized such activity and
the Company shall have consented thereto in writing) ; provided that nothing
contained herein shall prohibit Mr. Masiz from acting as shareholder, officer,
director or employee of Biochemics. Investments in less than five percent of the
outstanding securities of any class of a corporation subject to the reporting
requirements of Section 13 or Section 15(d) of the Securities Exchange Act of
1934, as amended, shall not be prohibited by this Section. At the option of
Employee, Employee's obligations under this Section arising after the
termination of Employee shall be suspended during any period in which the
Company fails to pay to him Termination Payments required to be paid to him
pursuant to this Agreement.
12. INVENTIONS AND CONFIDENTIAL INFORMATION. The parties hereto
recognize that a major need of the Company is to preserve its specialized
knowledge, trade secrets, and confidential information. The strength and good
will of the Company is derived from the specialized knowledge, trade secrets,
and confidential information generated from experience with the activities
undertaken by the Company and its subsidiaries. The disclosure of this
information and knowledge to competitors would be beneficial to them and
detrimental to the Company, as would the disclosure of information about the
marketing practices, pricing practices, costs, profit margins, design
specifications, analytical techniques, and similar items of the Company and its
subsidiaries; provided that nothing contained herein shall prohibit Mr. Masiz
from disclosing or using such information in his capacity as a shareholder,
officer, director or employee of Biochemics. Mr. Masiz acknowledges that the
proprietary information, observations and data obtained by him while employed by
the Company concerning the business or affairs of the Company are the property
of the Company. By reason of his being an employee of the Company, Mr. Masiz has
or will have access to, and has obtained or will obtain, specialized knowledge,
trade secrets and confidential information about the Company's operations and
the operations of its subsidiaries, which operations extend throughout the
United States. Therefore, Mr. Masiz hereby agrees as follows, recognizing that
the Company is relying on these agreements in entering into this Agreement:
(i) During the period of Mr. Masiz's employment with
the Company and for two (2) years thereafter, Mr. Masiz will not use, disclose
to others, or publish or otherwise make available to any other party except in
his capacity as an employee of the Company or as an officer, director,
shareholder or employee of Biochemics any inventions or any confidential
business information about the affairs of the Company, including but not limited
to confidential information concerning the Company's products, methods,
engineering designs and standards, analytical techniques, technical information,
customer information, employee information acquired by him in the course of his
past or future services for the Company.
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(ii) During the period of Employee's employment with
the Company and for three (3) years thereafter, (a) Mr. Masiz will not directly
or indirectly through another entity induce or otherwise attempt to influence
any employee of the Company to leave the Company's employ and (b) Mr. Masiz will
not directly or indirectly hire or cause to be hired or induce a third party to
hire, any such employee (unless the Board of Directors shall have authorized
such employment and the Company shall have consented thereto in writing) or in
any way interfere with the relationship between the Company and any employee
thereof and (c) induce or attempt to induce any customer, supplier, licensee,
licensor or other business relation of the Company to cease doing business with
the Company or in any way interfere with the relationship between any such
customer, supplier, licensee or business relation of the Company.
13. SUCCESSORS; BINDING AGREEMENT. This Agreement is a personal
contract and the rights and interests of Mr. Masiz hereunder may not be sold,
transferred, assigned, pledged, encumbered, or hypothecated by him, except as
otherwise expressly permitted by the provisions of this Agreement. This
Agreement shall inure to the benefit of and be enforceable by Mr. Masiz and his
personal or legal representatives, beneficiaries, executors, administrators,
successors, heirs, distributes, devisees and legatees. If Mr. Masiz should die
while any amount would still be payable to him hereunder had he continued to
live, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to his devisee, legatee or other
designee or, if there is no such designee, to his estate. In the event of any
sale or other disposition of all or substantially all of the assets of the
Company, or any reorganization, merger or consolidation of the Company whereby
the Company is not the surviving or resulting corporation, the provisions of
this Agreement shall be binding upon the surviving or resulting corporation or
the person or entity to which such assets are sold or otherwise transferred.
14. ENTIRE AGREEMENT. This Agreement and the Stock Option Agreement
taken together contain all the understandings between the parties hereto
pertaining to the matters referred to herein, and supersedes all undertakings
and agreements, whether oral or in writing, previously entered into by them with
respect thereto, including without limitation, any correspondence between Mr.
Masiz and representatives of the Company relating to the employment terms set
forth herein.
15. AMENDMENT OR MODIFICATION, WAIVER. No provision of this Agreement
may be amended or waived unless such amendment or waiver is agreed to in
writing, signed by Mr. Masiz and by a duly authorized officer of the Company. No
waiver by any party hereto of any breach by another party hereto of any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of a similar or dissimilar condition or provision at
the same time, any prior time or any subsequent time.
16. NOTICES. Any notice to be given hereunder shall be in writing and
delivered personally, sent by courier or registered or certified mail, postage
prepaid, return receipt requested, addressed to the party concerned at the
address indicated below or to such other address as such party may subsequently
give notice of hereunder in writing:
To Mr. Masiz at:
at the address contained on the
signature page attached hereto
To the Company:
Vaso Active Pharmaceuticals, Inc.
00 Xxxxxxxx Xxxxx - Xxxxx 000
Xxxxxxx, XX 00000
with a copy to:
Xxxxxxxx Xxxxx LLP
0000 X Xxxxxx, X.X. Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxx X. XxXxxxxxx, Esq.
Any notice delivered personally or by courier under this
Section 16 shall be deemed given on the date delivered and any notice sent by
registered or certified mail, postage prepaid, return receipt requested, shall
be deemed given the date mailed.
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17. MISCELLANEOUS.
(a) SEVERABILITY. If any provision of this Agreement is held
to be illegal, invalid or unenforceable under any present or future applicable
law, and if the rights or obligations of any party hereto under this Agreement
will not be materially and adversely affected thereby, (i) such provision will
be fully severable, (ii) this Agreement will be construed and enforced to the
fullest extent permitted by law as if such illegal, invalid or unenforceable
provision had never comprised a part hereof and (iii) the remaining provisions
of this Agreement will remain in full force and effect and will not be affected
by the illegal, invalid or unenforceable provision or by its severance here
from.
(b) SURVIVORSHIP. The respective rights and obligations of the
parties hereunder shall survive any termination of this Agreement to the extent
necessary to the intended preservation of such rights and obligations.
(c) GOVERNING LAW; JURISDICTION. This agreement will be
governed by and construed in accordance with the laws of the Commonwealth of
Massachusetts, without regard to its conflicts of laws principles. Each party
hereby irrevocably submits to the jurisdiction of the United States District
Court for the District of Massachusetts or any court of the Commonwealth of
Massachusetts located in Essex or Middlesex Counties in any such action, suit or
proceeding arising out of or relating to this Agreement or any of the
transactions contemplated hereby, and agrees that any such action, suit or
proceeding may be brought in such court, PROVIDED, HOWEVER, that such consent to
jurisdiction is solely for the purpose referred to in this Section and shall not
be deemed to be a general submission to the jurisdiction of said courts or in
the Commonwealth of Massachusetts other than for such purpose. Each party hereby
irrevocably waives, to the fullest extent permitted by applicable law, any
objection that it may now or hereafter have to the laying of the venue of any
such action, suit or proceeding brought in such a court and any claim that any
such action, suit or proceeding brought in such a court has been brought in an
inconvenient forum. Nothing herein shall affect the right of any party to serve
process in any other manner permitted by applicable law or to commence legal
proceedings or otherwise proceed against the other in any other jurisdiction.
THE PARTIES AGREE TO WAIVE ANY AND ALL RIGHTS THAT THEY MAY HAVE TO A JURY TRIAL
WITH RESPECT TO DISPUTES ARISING OUT OF THIS AGREEMENT.
(d) HEADINGS. All descriptive headings of sections and
paragraphs in this Agreement are intended solely for convenience, and no
provision of this Agreement is to be construed by reference to the heading of
any section or paragraph.
(e) WITHHOLDINGS AND PAYMENTS. All payments to Mr. Masiz under
this Agreement shall be reduced by all applicable withholding required by
federal, state or local law.
(f) COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
18. CERTAIN DEFINED TERMS.
"AFFILIATE" means, with respect to a party, any individual or
legal business entity that, directly or indirectly, controls, is controlled by
or is in common control with, such party. The term "control" (including the
terms "controlled by" and "under common control with") as used in the preceding
sentence means the possession, directly or indirectly, of the power to direct or
cause the direction of management and policies.
"BIOCHEMICS" shall mean BioChemics, Inc., a Delaware
corporation, an Affiliate of the Company.
"BUSINESS" shall mean the ownership and/or operation of a
company primarily engaged in the business of commercializing, marketing and
selling over-the-counter, or OTC, pharmaceutical products.
"CHANGE IN CONTROL" shall mean such time as:
(i) (A) any individual, entity, or group (other than an
Affiliate of BioChemics) has become the beneficial owner of 30% or more of the
voting power of the outstanding capital stock of the Company entitled to vote
generally in the election of directors (collectively, the "Capital Stock") or
(B) BioChemics ceases to control the right to designate at least 50% of the
members of the entire Board of Directors of the Company;
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(ii) individuals who, as of the effective date of this
Agreement, constitute the Board (the "INCUMBENT BOARD") cease for any or no
reason to constitute at least a majority of such Boards, PROVIDED that any
individual who becomes a director of the Company, as applicable, subsequent to
such date whose election or nomination for election by the stockholders of the
Company, as applicable, was approved by the vote of at least a majority of the
directors then comprising the Incumbent Board shall be deemed to have been a
member of the Incumbent Board;
(iii) (A) the consummation by the stockholders of the Company
of a reorganization, merger or consolidation of the Company such that any
individual entity, or group (other than an Affiliate of BioChemics) has become
the beneficial owner of 50% or more of the voting power of the outstanding
Capital Stock of the Company and (B) BioChemics ceases to control the right to
designate at least 50% of the members of the entire Board;
(iv) the consummation by the stockholders of the Company of a
sale or other disposition of all or substantially all of the assets of the
Company; or,
(v) the approval by stockholders of a plan of complete
liquidation or dissolution of the Company.
"CLASS A COMMON STOCK" means the Class A common stock, $.0001
par value per share, of the Company.
"SUBSIDIARY" means any corporation of which shares of stock
having a majority of the general voting power in electing the board of directors
are, at the time as of which any determination is being made, owned by the
Company either directly or through its Subsidiaries.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
By: /s/ Xxxx X. Masiz
-------------------------------------
Xxxx X. Masiz
Address: 00 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
COMPANY
VASO ACTIVE PHARMACEUTICALS, INC.
By: /s/ Xxxxxx Xxxxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Chief Financial Officer,
Authorized Signatory
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