Exhibit 10.19
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") made effective as of June 6, 2002
by and between BioMimetic Pharmaceuticals, Inc., a Tennessee corporation (the
"Company"), and Xxxx Xxxxxx (the "Executive").
In consideration of the mutual covenants contained in this Agreement, the
parties hereby agree as follows:
1. Employment. The Company agrees to employ the Executive and the Executive
agrees to be employed by the Company as Vice President of Regulatory Affairs and
Quality Assurance and to be responsible for the typical management
responsibilities expected of an employee holding such position and such other
responsibilities customarily pertaining to such position as may be assigned to
Executive from time to time by the Chief Executive Officer of the Company, all
for the Period of Employment as provided in Section 2 below and upon the terms
and conditions provided in the Agreement. If without Executive's consent, the
Company removes the Executive as a Vice President, the Executive may treat such
removal as Without Cause Termination under this Agreement.
2. Term. The period of Executive's employment under this Agreement, will
commence as of June 6, 2002, and shall continue through June 1, 2006, subject to
extension or termination as provided in this Agreement ("Period of Employment").
3. Duties. During the Period of Employment, the Executive shall devote his
full business time, attention and skill to the business and affairs of the
Company and its affiliates. The Executive will perform faithfully the duties
that may be assigned to him from time to time in accordance herewith by the
Chief Executive Officer.
4. Compensation. For all services rendered by the Executive in any capacity
during the Period of Employment, the Executive shall be compensated as follows:
(a) Base Salary. The Company shall pay the Executive an annual base
salary of $150,000.00 ("Base Salary"). Base Salary shall be payable
according to the customary payroll practices of the Company but in no event
less frequently than twice each month. The Base Salary shall be reviewed
each fiscal period and shall be subject to increase according to the
policies and practices adopted by the Company from time to time.
(b) Incentive Compensation Award. The Executive may receive annual
incentive bonuses consisting of options to purchase Company common stock,
with the aggregate of all such annual bonuses not to exceed 20,000 options.
The payment of such bonuses shall be based on the performance and
satisfaction of specific milestones mutually agreed upon by the Chief
Executive Officer and the Executive within one (1) month of the execution
of this Agreement, and shall be further based upon the Executive's
performance as evaluated by the Chief Executive Officer. Any such options
issued pursuant to such annual incentive bonuses shall be substantially in
the form attached hereto as Exhibit A. Executive
1
acknowledges that Incentive Compensation will be principally in the form of
the above-discussed Company stock options. The Executive may, or may not,
receive an additional annual incentive cash bonus.
(c) Options. Upon execution of this Agreement, Executive shall receive
an option to purchase 55,000 shares of Company common stock, with vesting
terms as set forth in such option grant. Executive may also be entitled to
receive additional Company options as may be granted to him from time to
time by the Company during the term of his employment.
(d) Additional Benefits. The Executive will be entitled to participate
in all employee benefit plans or programs and receive all benefits and
perquisites for which any salaried employees are eligible under any
existing or future plan or program established by the Company or its
affiliates and available to similarly situated employees of the Company,
including participation in stock option plans. The Executive may
participate to the extent permissible under the terms and provisions of
such plans or programs in accordance with program provisions. These may
include group hospitalization, health, dental care, life or other
insurance, sick leave plans, travel or accident insurance and disability
insurance. Nothing in this Agreement will preclude the Company or Company
affiliates from amending or terminating any of the plans or programs
applicable to salaried employees or senior executives as long as the total
value of all benefits is not materially decreased.
The Executive will be entitled to an annual paid vacation of fifteen
days per year.
The Company will provide Executive with sufficient equipment, supplies
and resources to accomplish his duties and will purchase and/or reimburse
Executive for the cost of maintaining current professional memberships, the
latter not to exceed $1,000 annually.
(e) Relocation Expenses. Executive shall relocate to the area of the
Company's headquarters. The Company shall reimburse the Executive for up to
$10,000 of normal moving expenses upon submission of Executive's receipts
and per industry standards. In the event Executive remains employed by the
Company and elects to relocate his immediate family to the area of the
Company's headquarters within two (2) years from the date hereof, the
Company shall reimburse the Executive for up to $25,000 of additional
moving expenses upon submission of Executive's receipts and per industry
standards.
5. Business Expenses and Other Expenses. The Company will reimburse the
Executive for all reasonable travel and other expenses incurred by the Executive
in connection with the performance of his duties and obligations under this
Agreement.
6. Disability.
(a) In the event of disability of the Executive during the Period of
Employment, the Company will continue to pay the Executive according to the
compensation provisions of this Agreement during the period of his
disability, until such time as any long term disability insurance benefits
accruing to the Executive
2
are available. However, in the event the Executive is disabled for a
continuous period of three months, or for a total of 90 or more days in any
12 month period, the Company may terminate the employment of the Executive.
In this case, normal compensation will cease, except for earned but unpaid
Base Salary and his monthly Base Salary as in effect at the time of the
termination for a period of three (3) months.
(b) During the period the Executive is receiving payments of either
regular compensation or disability insurance described in this Agreement
and to the extent reasonable considering the Executive's disability, the
Executive will furnish information and assistance to the Company and from
time to time will make himself available to the Company to undertake
assignments consistent with his prior position with the Company. If the
Company fails to make a payment or provide a benefit required as part of
the Agreement, the Executive's obligation to furnish information and
assistance will end.
(c) The term "disability" will have the same meaning as under any
disability insurance provided pursuant to this Agreement or otherwise.
7. Death. In the event of the death of the Executive during the Period of
Employment, the Company's obligation to make payments under this Agreement shall
cease as of the date of death, except for earned but unpaid Base Salary.
8. Effect of Termination of Employment. (a) If the Executive's employment
terminates due to a Without Cause Termination, as defined below, the Company
will pay the Executive three (3) months' Base Salary as in effect at the time of
the termination. The benefits and perquisites described in this Agreement as in
effect at the date of termination of employment will be continued, for three (3)
months.
(b) If the Executive's employment terminates due to Termination for
Cause (as defined below), breach of this Agreement by Executive,
resignation by Executive or expiration of the Period of Employment, earned
but unpaid Base Salary will be paid on a pro-rated basis for the year in
which the termination occurs. No other payments will be made or benefits
provided by the Company.
(c) For this Agreement, the following terms have the following
meanings:
(i) "Termination for Cause" means termination of the Executive's
employment by the Company's Chief Executive Officer or Board of
Directors acting in good faith by the Company by written notice to the
Executive specifying the event relied upon for such termination, due
to the Executive's willful misconduct with respect to his duties under
this Agreement, including but not limited to conviction for a felony
or a common law fraud, which has resulted or is likely to result in
substantial economic damage to the Company. Executive will be provided
a reasonable opportunity prior to any determination for "Cause", to
present his case before the Board of Directors of the Company with
counsel.
3
(ii) "Without Cause Termination" means termination of the
Executive's employment other than due to death, disability,
Termination for Cause, resignation by Executive or expiration of the
Period of Employment.
9. Other Duties of the Executive during and after the Period of Employment.
(a) The Executive will, with reasonable notice during or after the
Period of Employment, furnish information as may be in his possession and
cooperate with the Company as may reasonably be requested in connection
with any claims or legal actions in which the Company is or may become a
party.
(b) The Executive recognizes and acknowledges that all non-public
information pertaining to the affairs, business, clients, customers or
other relationships of the Company, as hereinafter defined, is confidential
and is a unique and valuable asset of the Company. Access to and knowledge
of this information are essential to the performance of the Executive's
duties under this Agreement. The Executive will not during the Period of
Employment and for 12 months thereafter except to the extent reasonably
necessary in performance of the duties under this Agreement, give to any
person, firm, association, corporation or governmental agency any
non-public information concerning the affairs, business, clients, customers
or other relationships of the Company, except as required by law. The
Executive will not make use of this type of information for his own
purposes or for the benefit of any person or organization other than the
Company. All records, memoranda, etc, relating to the business of the
Company, whether made by the Executive or otherwise coming into his
possession, are confidential and will remain the property of the Company.
Confidential information shall not include information that (i) becomes
generally available to the public other than as a result of disclosure by
the Executive, (ii) was available to the Executive on a non-confidential
basis prior to disclosure to the Executive in connection with his duties to
the Company, provided that the source of such information is not known to
the Executive to be bound by a confidentiality agreement or other
contractual obligation of confidentiality to the Company or (iii) becomes
available to the Executive on a non-confidential basis from a source other
than the Company (or any agent, employee or affiliate of Company) provided
such source is not known to the Executive to be bound by a confidentiality
agreement or other contractual obligation of confidentiality to the
Company.
(c) During the Period of Employment, the Executive will not use his
status with the Company to obtain loans, goods or services from another
organization on terms that would not be available to him in the absence of
his relationship to the Company. During the period of his employment and
for a period of 12 months thereafter, the Executive will not engage,
directly or indirectly, in any business activity or enterprise which is a
"Competitive Activity". For purposes hereof, "Competitive Activity" means
the making of investments in or the provision of capital to any enterprise,
or to any person in connection with any enterprise, with respect in which
the Company has invested or provided capital or proposed, in writing, to
invest or provide capital during the term of the Executive's employment, or
to pursue any similar investment opportunity with any individual or
enterprise introduced to the
4
Executive or Company directly in connection with the performance of the
Executive's duties to the Company during the term of his employment, in
each case in the area of health-care services. This restriction shall not
apply to any investment opportunity that has been declined by the Company.
The Executive acknowledges that the covenants contained herein are
reasonable as to geographic and temporal scope. For a twelve month period
after termination of the Period of Employment for any reason, the Executive
will not directly or indirectly hire any employee of the Company or solicit
any such employee to leave the employ of the Company.
(d) The Executive acknowledges that his breach or threatened or
attempted breach of any provision of Section 9 would cause irreparable harm
to the Company not compensable in monetary damages and that the Company
shall be entitled, in addition to all other applicable remedies, to a
temporary and permanent injunction and a decree for specific performance of
the terms of Section 9 without being required to prove damages or furnish
any bond or other security.
(e) The Executive shall not be bound by the provisions of Section 9 in
the event of the default by the Company in its obligations under this
Agreement that are to be performed upon or after termination of this
Agreement.
(f) For purposes of Section 9, the "Company" shall include any person
or entity that, directly or indirectly, controls or is controlled by the
Company or is under common control with the Company.
10. Indemnification; Litigation. The Company will indemnify the Executive
to the fullest extent permitted by the laws of the state of incorporation in
effect at that time, or certificate of incorporation and by-laws of the Company
whichever affords the greater protection to the Executive. The Executive will be
entitled to reimbursement of any reasonable fees or expenses incurred in
connection with any action, suit or proceeding to which he may be made a party
by reason of being a director or executive officer of the Company. The foregoing
shall survive termination of Executive's employment or any future amendment or
modification of the Company's articles of incorporation or bylaws.
11. Consolidation; Merger or Sale of Assets. Nothing in this Agreement
shall preclude the Company from consolidating or merging into or with, or
transferring all or substantially all of its assets to, another corporation that
assumes this Agreement and all obligations and undertakings of the company
hereunder. Upon such a consolidation, merger or sale of assets, the term "the
Company" as used will mean the other corporation and this Agreement shall
continue in full force and effect.
12. Modification. This Agreement may not be modified or amended except in
writing signed by the parties. No term or condition of this Agreement will be
deemed to have been waived, except in writing by the party charged with waiver.
A waiver shall operate only as to the specific term or condition waived and will
not constitute a waiver for the future or act on anything other than that which
is specifically waived.
5
13. Governing Law. This Agreement has been executed and delivered in the
State of Tennessee and its validity, interpretation, performance and enforcement
shall be governed by the laws of that state.
14. Notices. All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been made when
delivered or mailed first-class postage prepaid by registered mail, return
receipt requested, or when delivered if by hand, overnight delivery service or
confirmed facsimile transmission, to the following:
(a) If to the Company c/o Xxxx Manner, Xxxxxxx Xxxxxx Xxxx Xxxxxxx &
Manner, 1800 AmSouth Center, 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx
00000, or at such other address as may have been furnished to the Executive
by the Company in writing; or
(b) If to the Executive, at 0 XXXXXXXX XXXX XXXXXXXXX, XX 00000, or
such other address as may have been furnished to the Company by the
Executive in writing.
15. Binding Agreement. This Agreement shall be binding on the parties'
successors, heirs and assigns.
6
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
EXECUTIVE
/s/ Xxxx Xxxxxx 14 JUNE 2002
----------------------------------
Xxxx Xxxxxx
BIOMIMETIC PHARMACEUTICALS, INC.
By: /s/ Xxxxxx X Xxxxx
------------------------------
Name: Xxxxxx X Xxxxx
Title: President
7
