Exhibit 10.21
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") made effective as of July 5, 2005 by and
between BioMimetic Pharmaceuticals, Inc., a Delaware corporation (the
"Company"), and Xxxxxx 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 Chief Operating Officer and to be
responsible for the typical management responsibilities expected of an
officer holding such position including those set forth in your employment
offer letter dated June 12, 2005 and such other responsibilities
customarily pertaining to such office 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.
2. Term. The period of Executive's employment under this Agreement, will
commence on or about July 5, 2005 and shall continue through July 5, 2009,
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 $265,000.00 ("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. In
addition, the Company will pay the Executive a one-time sign-on bonus
of $50,000.00 payable ninety (90) days from the commencement of this
Agreement.
(b) Incentive Compensation Award. The Executive shall also be eligible to
receive annual incentive bonuses of up to 40% of Base Salary. The
payment of such annual incentive bonuses shall be based on the
performance and satisfaction of specific Company and personal goals,
mutually agreed upon by the Chief Executive Officer and the Executive
within forty-five (45) days of the execution of this Agreement, and
shall be further based upon the Executive's performance as evaluated
by the Chief Executive Officer. Executive is guaranteed to receive a
prorated bonus for the first nine months of employment at the Company.
(c) Options. Upon execution of this Agreement, Executive shall receive an
option to purchase 157,682 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. The Company will provide you with group hospitalization,
health, dental and vision insurance and pay up to $750 per month for
such insurance. The Company may also provide 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 10 days
per full six month period of employment. In addition, the Company has
nine paid holidays annually.
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 $50,000 of normal moving expenses upon submission of Executive's
receipts and per industry standards. In addition, the Company will
also reimburse Executive up to $2,500 per month for up to three (3)
months of temporary housing costs.
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.
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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 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 270-day 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 up to two (2) 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, or if Company elects not to renew
Executive's employment hereunder, the Company will pay the Executive
the twelve (12) 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 terminate
immediately. Additionally, vesting will accelerate on the options held
by Executive by twelve (12) months in the event of a Without Cause
Termination.
(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.
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(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.
(ii) "Without Cause Termination" means "constructive termination" or
actual termination of the Executive's employment other than due
to death, disability, Termination for Cause, or resignation by
Executive.
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
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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 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 prompt reimbursement of any 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.
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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.
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, to:
Chief Executive Officer
BioMimetic Pharmaceuticals, Inc.,
000 X Xxxxxx Xxxx Xxxx, Xxxxxxxx, XX 00000
with a copy to:
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, to
Xxxxxx Xxxxxx
______________________
______________________
or such other address as may have been furnished to the Company by the
Executive in writing.
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15. Binding Agreement. This Agreement shall be binding on the parties'
successors, heirs and assigns.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first above written.
EXECUTIVE
/s/ Xxxxxx Xxxxxx
--------------------------------
Xxxxxx Xxxxxx
BIOMIMETIC PHARMACEUTICALS, INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------
Its: President & CEO
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