EMPLOYMENT AGREEMENT
Exhibit
10.6
This Employment
Agreement (this “Agreement”) is made and entered into
effective as of May 4, 2017 (the “Effective Date”) by
and between Navidea
Biopharmaceuticals, Inc., a Delaware corporation with a
place of business at 0000 Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxx
00000-0000 (the “Company” or “Navidea”) and
Xxx X Xxxxxx, residing at
000 Xxxx 00xx Xxxxxx Xxx 0X, Xxx
Xxxx, XX 00000 (the “Executive”). The Company and
Executive are hereinafter sometimes collectively referred to as the
“Parties.”
WHEREAS, the
Company has offered to employ Executive as its COO and CFO, and the
Executive desires to accept such employment; and
WHEREAS, the
Parties wish to establish terms, covenants, and conditions for the
Executive’s employment with the Company through this
Employment Agreement (this “Agreement").
NOW, THEREFORE, in
consideration of the mutual agreements herein set forth, the
Parties agree as follows:
1. Duties.
From and after the Effective Date, and based upon the terms and
conditions set forth herein, the Company agrees to employ the
Executive and the Executive agrees to be employed by the Company,
as the Company’s COO and CFO and in such additional executive
level position or positions as shall be assigned to him by the
Company’s Board of Directors (the “Board”). While
serving in such executive level position or positions, the
Executive shall report to, be responsible to, and shall take
direction from the Chief Executive Officer. The Executive shall, if
requested, also serve as a member of Board or as an officer or
director of any affiliate of the Company for no additional
compensation. During the Term (as defined in Section 2 below), the
Executive agrees to devote substantially all of his working time to
the position he holds with the Company and to faithfully,
industriously, and to the best of his ability, experience and
talent, perform the duties that are assigned to him. The Executive
shall also observe and abide by the reasonable corporate policies
and decisions of the Company in all business matters.
The Executive
represents and warrants to the Company that Exhibit A attached hereto sets
forth a true and complete list of (a) all offices, directorships
and other positions held by the Executive in corporations and firms
other than the Company and its subsidiaries, and (b) any investment
or ownership interest in any corporation or firm other than the
Company beneficially owned by the Executive (excluding investments
in life insurance policies, bank deposits, publicly traded
securities that are less than five percent (5%) of their class and
real estate). The Executive will promptly notify the Board of any
additional positions undertaken or investments made by the
Executive during the Term if they are of a type which, if they had
existed on the date hereof, should have been listed on Exhibit A hereto. As long as
the Executive’s other positions or investments in other firms
do not create a conflict of interest, violate the Executive’s
obligations under Section 6 below or cause the Executive to neglect
his duties hereunder, such activities and positions shall not be
deemed to be a breach of this Agreement.
2.
Term of this Agreement. Subject to
Section 4 hereof, the term of this Agreement shall be for a period
commencing on May 4, 2017 and be automatically renewing every year
(the “Term”), unless terminated earlier pursuant to the
termination provisions set forth in Section 4 of this Agreement.
The Term will be renewable annually with the approval of the Board
of Directors and the Executive shall be given at least 30 days
notice prior to the yearly renewal date if the contract will not be
renewed, in which case Executive shall not be entitled to salary or
benefits for the following year.
3. Compensation. During the Term, the
Company shall pay, and the Executive agrees to accept as full
consideration for the services to be rendered by the Executive
hereunder, compensation consisting of the following:
A.
Salary. The Company shall pay the
Executive a salary of Three Hundred Twenty Five Thousand Dollars
($325,000) per year (the “Base Salary”).
B.
Bonus. For each complete calendar year
of the Term, the Executive shall have the opportunity to earn an
annual bonus (the “Annual Bonus”) of up to 75% of Base
Salary, as in effect at the beginning of the applicable calendar
year during the Term, based on achievement of annual target
performance goals established by the Committee; provided, however,
in the event the market capitalization of the Company at the end of
any calendar year during the Term is at least $250,000,000, then
the Committee may at its sole
discretion increase the Annual Bonus to an amount equal to
up to 100% of Base Salary as in effect at the beginning of the
applicable calendar year during the Term. The Committee will, on an
annual basis, review the performance of the Company and of the
Executive in relation to the target performance goals and will pay
such Annual Bonus, as it deems appropriate, in its discretion, to
the Executive based upon such review. Any bonus earned in any
calendar year will be paid on or before March 15th of the year
following the year such bonus is earned. In order to be eligible to receive an
Annual Bonus, the Executive must be employed by the Company on the
last day of the applicable calendar year with respect to which the
Annual Bonus is to be paid.
C.
Benefits. During the Term, the Executive
will receive such employee benefits as are generally available to
all executives and officers of the Company.
D.
Stock
Options.
i.
The Committee may,
from time to time, grant to the Executive stock options, restricted
stock purchase opportunities and such other forms of equity-based
incentive compensation as it deems appropriate, in its discretion.
On the date of this Agreement, the Committee will grant Executive
non-statutory stock options to purchase 1,000,000 shares of the
Company’s common stock, $0.001 par value (“Common
Stock”), at the following values as of the Execution date
with a vesting schedule as follows; 333,334 at Execution Date with
a strike price of $0.65 and an exercise right not below $0.85,
333,333 on December 31, 2017 with a strike price of $0.75 and an
exercise price not below $1.00, and 333,333 on December 31, 2018
with a strike price of $1.00 and an exercise right not below $1.25.
All awards of equity incentives shall be governed by a separate
equity incentive award agreement, the terms of which shall govern
the rights of the Executive and the Company in the event of any
conflict between such agreement and this Agreement.
ii.
Executive shall
receive pro-rata any shares of any spin-out subsidiary of Navidea
as if his options have fully vested at the time of the proposed
spin-out.
E.
Vacation. The Executive shall be
entitled to twenty-five (25) days of vacation during each calendar
year (prorated for partial years) during the Term, in accordance
with the Company's vacation policies, as in effect from time to
time.
F.
Expenses. The Company shall reimburse
the Executive for all reasonable out-of-pocket expenses incurred by
him in the performance of his duties hereunder, including expenses
for travel, entertainment and similar items, promptly after the
presentation by the Executive, from time-to-time, of an itemized
account of such expenses.
G.
Clawback Policy. The Company’s
obligation to pay any bonus or stock-based incentive compensation
under paragraphs B. or D. of this Section 3, and the
Executive’s right to receive or retain such compensation,
shall be subject to any policy adopted by the Board of Directors or
the Committee (or any successor committee of the Board with
authority over executive compensation) pursuant to the
“clawback” provisions of Section 304 of the
Xxxxxxxx-Xxxxx Act of 2002, Section 10D of the Securities Exchange
Act of 1934 (the “Exchange Act”) or regulations
promulgated thereunder, or pursuant to any rule of any national
securities exchange on which the equity securities of the Company
are listed implementing Section 10D of the Exchange Act or
regulations promulgated thereunder.
4.
Termination.
A.
For Cause. The Company may terminate the
employment of the Executive prior to the end of the Term “for
cause.” Termination “for cause” shall be defined
as a termination by the Company of the employment of the Executive
occasioned by:
i.
the failure by the
Executive to cure a willful breach of a material duty imposed on
the Executive under this Agreement or any other written agreement
between Executive and the Company within 15 days after written
notice thereof by the Company;
ii.
the continuation by
the Executive after written notice by the Company of a willful and
continued neglect of a duty imposed on the Executive under this
Agreement;
iii.
acts by Executive
of fraud, embezzlement, theft or other material dishonesty directed
against Navidea;
iv.
the Executive is
formally charged with a felony (other than a traffic offense), or a
crime involving moral turpitude, that in the reasonable good faith
judgment of the Board, results in material damage to the Company or
its reputation, or would materially interfere with the performance
of Executive’s obligations under this Agreement;
or
v.
any condition which
either results from the Executive’s substantial dependence,
as reasonably determined in good faith by the Board, on alcohol, or
on any narcotic drug or other controlled or illegal
substance.
vi.
Neglect or
dereliction of duties by the Executive or failure to rectify
specific performance deficiencies identified by the Company in
writing in a performance review within sixty (60)
days.
In the
event of termination by the Company “for cause,” all
salary, benefits and other payments shall cease at the time of
termination, and the Company shall have no further obligations to
the Executive.
B.
Resignation. If the Executive resigns for any
reason (other than Good Reason (as defined in paragraph G of this
Section 4 below)), all salary, benefits and other payments (except
as otherwise provided in paragraph G of this Section 4) shall cease
at the time such resignation becomes effective. At the time of any
such resignation, the Company shall pay the Executive the value of
any accrued but unused vacation time, and the amount of all accrued
but previously unpaid Base Salary through the date of such
termination. The Company shall promptly reimburse the Executive for
the amount of any expenses incurred prior to such termination by
the Executive as required under paragraph F of Section 3
above.
C.
Disability, Death. The Company may terminate the
employment of the Executive prior to the end of the Term if the
Executive has been unable to perform his duties hereunder
or a similar job for a
continuous period of six (6) months due to a physical or mental
condition that, in the opinion of a licensed physician, will be of
indefinite duration or is without a reasonable probability of
recovery for a period of at least six
(6) months. The Executive agrees to submit to an examination
by a licensed physician of his choice in order to obtain such
opinion, at the request of the Company, made after the Executive
has been absent from his place of employment for at least six (6)
months. The Company shall pay for any requested examination.
However, this provision does not abrogate either the
Company’s or the Executive’s rights and obligations
pursuant to the Family and Medical Leave Act of 1993, and a
termination of employment under this paragraph C shall not be
deemed to be a termination “for cause.”
If
during the Term, the Executive dies or the Executive’s
employment is terminated because of the Executive’s
disability, all salary, benefits and other payments shall cease at
the time of death or termination due to disability, provided,
however, that the Company shall pay such other amounts or provide
such other benefits required to be paid or provided to the
Executive or the Executive's estate under any plan, program,
policy, practice, contract, or arrangement in which the Executive
or the Executive's estate is eligible to receive such payments or
benefits from the Company, for the longer of twelve (12) months
after such death or termination or the full unexpired Term on the
same terms and conditions (including cost) as were applicable
before such death or termination. In addition, for the first six
(6) months of any disability, as defined under Section 409A of the
Internal Revenue Code of 1986, as amended, and any guidance
thereunder, that results in the Executive being unable to perform
any gainful activity, the Company shall pay to the Executive the
difference, if any, between any cash benefits received by the
Executive from a Company-sponsored disability insurance policy and
the Executive’s salary hereunder in accordance with paragraph
A of Section 3 above. At the time of any such termination, the
Company shall pay the Executive or Executive’s estate, the
value of any accrued but unused vacation time, and the amount of
all accrued but previously unpaid Base Salary through the date of
such termination. The Company shall promptly reimburse the
Executive or Executive’s estate for the amount of any
expenses incurred prior to such termination by the Executive as
required under paragraph F of Section 3 above.
Notwithstanding
the foregoing, if the Company reasonably determines that any of the
benefits described in this paragraph C may not be exempt from
federal income tax, then for a period of six (6) months after the
date of the Executive’s termination, the Executive shall pay
to the Company an amount equal to the stated taxable cost of such
coverages. After the expiration of the six-month period, the
Executive or Executive’s estate shall receive from the
Company a reimbursement of the amounts paid by the
Executive.
D.
Termination Without Cause or by Executive for
Good Reason. A termination “without cause” is a
termination of the employment of the Executive by the Company that
is not “for cause” and not occasioned by the
resignation, death or disability of the Executive. If the
Executive’s employment is terminated by the Company without
cause or by the Executive for Good Reason (whether before the end
of the Term or, if the Executive is employed by the Company under
paragraph E of this Section 4, after the Term), the Company shall,
at the time of such termination, pay to the Executive the severance
payment provided in paragraph F of this Section 4 together with the
value of any accrued but unused vacation time and the amount of all
accrued but previously unpaid Base Salary through the date of such
termination and shall provide him with all benefits to which he is
entitled under paragraph C of Section 3 above for the duration of
the Severance Period (as defined below). Furthermore all share
options listed in section 3(D) shall vest immediately and the
Executive shall have the right for six monhts (6) post the
Termination date to exercise such share options. The Company shall
promptly reimburse the Executive for the amount of any expenses
incurred prior to such termination by the Executive as required
under paragraph F of Section 3.
If the
Company terminates the employment of the Executive because it has
ceased to do business or substantially completed the liquidation of
its assets or because it has relocated to another city and the
Executive has decided not to relocate also, such termination of
employment shall be deemed to be without cause.
E.
End of the Term of this Agreement.
Except as otherwise provided in paragraphs F and G of this Section
4 below, the Company may terminate the employment of the Executive
at the end of the Term without any liability on the part of the
Company to the Executive, provided that if the Executive continues
to be an employee of the Company after the Term ends, his
employment shall be governed by the terms and conditions of this
Agreement, but he shall be an employee at will and his employment
may be terminated at any time by either the Company or the
Executive without notice and for any reason not prohibited by law
or no reason at all. If the Company terminates the employment of
the Executive at the end of the Term, the Company shall, at the
time of such termination, pay to the Executive the value of any
accrued but unused vacation time and the amount of all accrued but
previously unpaid base salary through the date of such termination.
The Company shall promptly reimburse the Executive for the amount
of any reasonable expenses incurred prior to such termination by
the Executive as required under paragraph F of Section 3
above.
X.
Xxxxxxxxx. If the employment of the
Executive is terminated by the Company not for cause as defined in
Section 4 (A), except as per the right to not renew the contract at
the end of term, or if the employment of the Executive is
terminated by the Company without cause or by the Executive for
Good Reason (whether before the end of the Term or, if the
Executive is employed by the Company under paragraph E of this
Section 4 above, after the Term has ended), then, subject to
Executive’s execution and non-revocation of a general release
in favor of the Company, its affiliates and their current and
former officers, directors and employees, in form reasonably
satisfactory to the Company, the Executive shall be paid, as
severance, (i) Executive’s Base Salary, as in effect at the
time of such termination, during the Severance Period as if the
Executive had not been terminated and remained an employee of the
Company through the expiration of such period representing the
remander of his term , and all unvested stock options under section
3(D) shall vest immediately and remain exerciseable for the
Severance Period. For purposes of this Agreement, “Severance
Period” means the period of time commencing immediately after
Executive’s separation of service from the Company through
the date that is twelve (12) months following such separation date,
plus an additional two (2) months for every fully completed year of
Executive’s service to the Company.
G.
Change of Control Severance. In addition
to the rights of the Executive under the Company’s employee
benefit plans (paragraph C of Section 3 above) but in lieu of any
severance payment under paragraph F of this Section 4 above, if
there is a Change in Control of the Company (as defined below)
during the Term and within six (6) months thereafter the employment
of the Executive is concurrently or subsequently terminated (i) by
the Company without cause, (ii) by the expiration of the Term, or
(iii) by the resignation of the Executive because he has reasonably
determined in good faith that his titles, authorities,
responsibilities, salary, bonus opportunities or benefits have been
materially diminished, that a material adverse change in his
working conditions has occurred, or the Company has breached this
Agreement (clause (iii) of the first paragraph of this Section 4(G)
shall mean “Good Reason”), the Company shall pay the
Executive, as a severance payment, at the time of such termination,
in an amount equal to (A) Executive’s Base Salary, as in
effect at the time of such termination, during the Severance Period
as if the Executive had not been terminated and remained an
employee of the Company through the expiration of such period, (B)
a bonus equal to one (1) year of Base Salary (as in effect on the
date of termination) plus
an additional two months of Base Salary for every fully completed
year of Executive’s service to the Company payable in equal
bi-monthly installments during the Severance Period, and one (1)
year of Bonus (as maximum allowable in effect on the date of
termination) plus an
additional two months of prorated bonus for every fully completed
year of Executive’s service to the Company payable in equal
bi-monthly installments during the Severance Period, (C) without
duplication to (B), the unpaid bonus, if any, for the year in which
the termination occurs, prorated to the date of termination of
Executive’s employment, to be paid at the time the Company
pays bonuses to other senior executives of the Company and (D) the
remaining unvested stock options from 3(D) shall vest immediately.
The Company shall promptly reimburse the Executive for the amount
of any expenses incurred prior to such termination of the Executive
as required under paragraph F of Section 3 above. Notwithstanding the foregoing, before the
Executive may resign pursuant to clause (iii) of this paragraph,
the Executive shall deliver to the Company a written notice of the
Executive’s intent to terminate his employment thereunder,
and the Company shall have been given a reasonable opportunity to
cure any such act, omission or condition within thirty (30) days
after the Company’s receipt of such
notice.
For the
purpose of this Agreement, a Change in Control of the Company has
occurred when: (a) any person (defined for the purposes of this
paragraph G to mean any person within the meaning of Section 13(d)
of the Exchange Act), other than Navidea, an employee benefit plan
created by its Board of Directors for the benefit of its employees,
or a participant in a transaction approved by its Board for the
principal purpose of raising additional capital, either directly or
indirectly, or an Affiliate of such participant, acquires
beneficial ownership (determined under Rule 13d-3 of the
regulations promulgated under Section 13(d) of the Exchange Act) of
securities issued by Navidea having thirty percent (30%) or more of
the voting power of all the voting securities issued by Navidea in
the election of directors at the next meeting of the holders of
voting securities to be held for such purpose; (b) a majority of
the directors elected at any meeting of the holders of voting
securities of Navidea are persons who were not nominated for such
election by the Board or a duly constituted committee of the Board
having authority in such matters; (c) the stockholders of Navidea
approve a merger or consolidation of Navidea with another person
other than a merger or consolidation in which the holders of
Navidea’s voting securities issued and outstanding
immediately before such merger or consolidation continue to hold
voting securities in the surviving or resulting corporation (in the
same relative proportions to each other as existed before such
event) comprising eighty percent (80%) or more of the voting power
for all purposes of the surviving or resulting corporation; or (d)
the stockholders of Navidea approve a transfer of substantially all
of the assets of Navidea to another person other than: (i) a
transfer to a transferee, eighty percent (80%) or more of the
voting power of which is owned or controlled by Navidea or by the
holders of Navidea’s voting securities issued and outstanding
immediately before such transfer in the same relative proportions
to each other as existed before such event, or (ii) a transfer
following which Navidea continues the operation of one or more
lines of business that were operated by Navidea prior to the
transfer, and a class of Navidea’s common stock remains
registered under Section 12 of the Exchange Act. The Parties agree
that for the purpose of determining the time when a Change of
Control has occurred that if any transaction results from a
definite proposal that was made before the end of the Term but
which continued until after the end of the Term and such
transaction is consummated after the end of the Term, such
transaction shall be deemed to have occurred when the definite
proposal was made for the purposes of the first sentence of this
paragraph G of Section 4. Notwithstanding the foregoing, before the
Executive may resign pursuant to clause (iii) of the first
paragraph of this Section 4(G), the Executive shall deliver to the
Company a written notice of the Executive’s intent to
terminate his employment thereunder, and the Company shall have
been given a reasonable opportunity to cure any such act, omission
or condition within thirty (30) days after the Company’s
receipt of such notice.
H.
Benefit and Stock Plans. In the event
that a benefit plan, equity plan or award agreement which covers
the Executive has specific provisions concerning termination of
employment, or the death or disability of an employee (e.g., life insurance or disability
insurance), then such benefit plan, equity plan or award agreement
shall control the disposition of the benefits or awards
thereunder.
I.
Resignation of All Other Positions. Upon
termination of the Executive's employment hereunder for any reason,
the Executive shall be deemed to have resigned from all positions
that the Executive holds as an officer or member of the Board (and
any committee thereof) of the Company or any of its
affiliates.
J.
Cooperation. The Parties agree that
certain matters in which the Executive will be involved during the
Term may necessitate the Executive's cooperation following
termination of his employment. Accordingly, following the
termination of the Executive's employment for any reason, to the
extent reasonably requested by the Board, the Executive shall
cooperate with the Company in connection with matters arising out
of the Executive's service to the Company; provided that, the
Company shall make reasonable efforts to minimize disruption of the
Executive's other activities. The Company shall reimburse the
Executive for reasonable expenses incurred in connection with such
cooperation and, to the extent that the Executive is required to
spend substantial time on such matters, the Company shall
compensate the Executive at an hourly rate based on the Executive's
Base Salary on the date of termination.
5.
Proprietary Information Agreement.
Executive has executed a Proprietary Information Agreement as a
condition of employment with the Company. The Proprietary
Information Agreement shall not be limited by this Agreement in any
manner, and the Executive shall act in accordance with the
provisions of the Proprietary Information Agreement at all times
during the Term.
6.
Non-Competition. Executive agrees that
for so long as he is employed by the Company under this Agreement
and for one (1) year thereafter, the Executive will
not:
A.
enter into the
employ of or render any services to any person, firm, or
corporation, which is engaged, in any part, in a Competitive
Business (as defined below);
B.
engage in any
directly Competitive Business for his own account;
C.
become associated
with or interested in through retention or by employment any
Competitive Business as an individual, partner, shareholder,
creditor, director, officer, principal, agent, employee, trustee,
consultant, advisor, or in any other relationship or capacity;
or
D.
solicit, interfere
with, or endeavor to entice away from the Company, any of its
customers, strategic partners, or sources of supply.
Nothing in this
Agreement shall preclude Executive from taking employment in the
banking or related financial services industries nor from investing
his personal assets in the securities or any Competitive Business
if such securities are traded on a national stock exchange or in
the over-the-counter market and if such investment does not result
in his beneficially owning, at any time, more than one percent (1%)
of the publicly-traded equity securities of such Competitive
Business. “Competitive Business” for purposes of this
Agreement shall mean any business or enterprise:
a.
which is engaged in
the development, commercialization or distribution of drugs and/or
systems for use in detection, diagnosis or treatment of cancer,
inflammatory or immune-related diseases, including without
limitation the development, commercialization or distribution of
radiopharmaceuticals for such purposes, or
b.
which reasonably
could be understood to be competitive in the relevant market with
products and/or systems described in clause a above, or
c.
in which the
Company engages in during the Term pursuant to a determination of
the Board and from which the Company derives a material amount of
revenue or in which the Company has made a material capital
investment.
The covenant set
forth in this Section 6 shall terminate immediately upon the
substantial completion of the liquidation of assets of the Company
or the termination of the employment of the Executive by the
Company without cause or at the end of the Term.
7. Arbitration. Any dispute or
controversy arising under or in connection with this Agreement
shall be settled exclusively by arbitration in Columbus, Ohio, in
accordance with the non-union employment arbitration rules of the
American Arbitration Association (“AAA”) then in
effect. If specific non-union employment dispute rules are not in
effect, then AAA commercial arbitration rules shall govern the
dispute. If the amount claimed exceeds $100,000, the arbitration
shall be before a panel of three arbitrators. Judgment may be
entered on the arbitrator’s award in any court having
jurisdiction. The Company shall indemnify the Executive against and
hold him harmless from any attorney’s fees, court costs and
other expenses incurred by the Executive in connection with the
preparation, commencement, prosecution, defense, or enforcement of
any arbitration, award, confirmation or judgment in order to assert
or defend any right or obtain any payment under paragraph C of
Section 4 above or under this sentence; without regard to the
success of the Executive or his attorney in any such arbitration or
proceeding.
8.
Attorneys’ Fees and Expenses.
Except as otherwise provided in Section 7, in the event that any
action, suit, or other legal or equitable proceeding is brought by
either party to enforce the provisions of this Agreement, or to
obtain money damages for the breach thereof, then the party which
substantially prevails in such action (whether by judgment or
settlement) shall be entitled to recover from the other party all
reasonable expenses of such litigation (including any appeals),
including, but not limited to, reasonable attorneys' fees and
disbursements.
9.
Governing Law. The Agreement shall be
governed by and construed in accordance with the laws of the State
of Ohio without regard to its conflicts of laws
principles.
10.
Jurisdiction; Service of Process. Except
as otherwise provided in Section 7, any action or proceeding
arising out of or relating to this Agreement shall be brought
exclusively in the state or federal courts located in New York, New
York and each of the Parties irrevocably submits to the
jurisdiction of each such court in any such action or proceeding,
waives any objection it may now or hereafter have to venue or to
convenience of forum, agrees that all claims in respect of the
action or proceeding shall be heard and determined only in any such
court and agrees not to bring any action or proceeding arising out
of or relating to this Agreement in any other court. The Parties
agree that either or both of them may file a copy of this Section
with any court as written evidence of the knowing, voluntary and
bargained agreement between the Parties irrevocably to waive any
objections to venue or to convenience of forum. Process in any
action or proceeding referred to in the first sentence of this
section may be served on any party anywhere in the
world
11.
Waiver of Jury
Trial. THE PARTIES HEREBY
UNCONDITIONALLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF
ANY CLAIM OR CAUSE OF ACTION ARISING DIRECTLY OR INDIRECTLY OUT OF,
RELATED TO, OR IN ANY WAY CONNECTED WITH THE PERFORMANCE OR BREACH
OF THIS AGREEMENT, AND/OR THE RELATIONSHIP THAT IS BEING
ESTABLISHED BETWEEN THEM. The scope of this waiver is intended to
be all encompassing of any and all disputes that may be filed in
any court or other tribunal (including, without limitation,
contract claims, tort claims, breach of duty claims, and all other
common law and statutory claims). THIS WAIVER IS IRREVOCABLE,
MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING,
AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS, OR MODIFICATIONS TO THIS AGREEMENT AND RELATED
DOCUMENTS. In the event of litigation, this Agreement may be filed
as a written consent to a trial by the court.
12.
Validity. The invalidity or
unenforceability of any provision or provisions of this Agreement
shall not affect the validity or enforceability of any other
provision of the Agreement, which shall remain in full force and
effect.
13.
Compliance with Section 409A of the Internal
Revenue Code. It
is intended that this Agreement comply with Section 409A of the
Internal Revenue Code of 1986, as amended, and any guidance
thereunder (“Section 409A”). If, when the Executive's
employment with the Company terminates, the Executive is a
"specified employee" as defined in Section 409A(a)(1)(B)(i), and if
any payments under this Agreement, including payments under Section
4, will result in additional tax or interest to the Executive under
Section 409A(a)(1)(B) ("Section 409A Penalties"), then despite any
provision of this Agreement to the contrary, the Executive will not
be entitled to payments until the earliest of (a) the date that is
at least six months after termination of the Executive's employment
for reasons other than the Executive's death, (b) the date of the
Executive's death, or (c) any earlier date that does not result in
Section 409A Penalties to the Executive. As soon as practicable
after the end of the period during which payments are delayed under
this provision, the entire amount of the delayed payments shall be
paid to the Executive in a lump sum. Additionally, if any provision
of this Agreement would subject the Executive to Section 409A
Penalties, the Company will apply such provision in a manner
consistent with Section 409A during any period in which an
arrangement is permitted to comply operationally with Section 409A
and before a formal amendment to this Agreement is required. For
purposes of this Agreement, any reference to the Executive's
termination of employment will mean that the Executive has incurred
a "separation from service" under Section 409A. No payments to be
made under this Agreement may be accelerated or deferred except as
specifically permitted under Section 409A. Any payments that
qualify for the “short-term deferral” exception or
another exception under Section 409A of the Code shall be paid
under the applicable exception. Each payment of compensation under
this Agreement shall be treated as a separate payment of
compensation for purposes of Section 409A. To the extent that any
reimbursements provided under this Agreement constitute deferred
compensation subject to Section 409A, such amounts shall be paid or
reimbursed to Executive promptly, but in no event later than
December 31 of the year following the year in which the expense is
incurred. The amount of any such payments eligible for
reimbursement in one year shall not affect the payments or expenses
that are eligible for payment or reimbursement in any other taxable
year, and Executive’s right to such payments or reimbursement
shall not be subject to liquidation or exchange for any other
benefit.
14.
Entire Agreement. This Agreement,
together with the Proprietary Information Agreement referenced
above, constitutes the entire understanding between the Parties
with respect to the subject matter hereof, and supersedes all
negotiations, prior discussions, and preliminary agreements to this
Agreement. This Agreement may not be amended except in writing
executed by the Parties.
15.
Effect on Successors of Interest. This
Agreement shall inure to the benefit of and be binding upon heirs,
administrators, executors, successors and assigns of each of the
Parties. Notwithstanding the above, the Executive recognizes and
agrees that his obligation under this Agreement may not be assigned
without the consent of the Company. The Company, however, may
assign its rights and obligations under this
Agreement.
16.
Counterpart Signatures. This Agreement
may be signed in counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts together
shall constitute one and the same instrument. A fully signed copy,
pdf or facsimile copy of this Agreement shall be deemed an
original.
[signature page
follows]
Exhibit
10.6
IN WITNESS WHEREOF, the Parties have
executed and delivered this Agreement as of the date first written
above.
|
|
EXECUTIVE:
|
||
|
|
|
|
|
|
By:
|
/s/
Xxxxxxx X. Xxxxxxxx
|
|
/s/ Xxx
X. Xxxxxx
|
|
Name:
|
Xxxxxxx
X. Xxxxxxxx
|
|
Xxx X.
Xxxxxx
|
|
Its:
|
CEO
|
|
|
Exhibit A
