Exhibit 10.17
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") made effective as of December 18,
2003 by and between BioMimetic Pharmaceuticals, Inc., a Delaware corporation
(the "Company"), and Xxxxx Xxxxxxx (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 Financial 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 December 18, 2003 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 January 12th, 2004, and shall continue through January 31,
2008, 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 $196,000.00 ("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 shall also be eligible
to receive annual incentive bonuses consisting of options to purchase
Company common stock up to 1,250 options, with the aggregate of al1 such
annual bonus options not to exceed 5,000 such amount which may be adjusted
from time to time at the sole discretion of the Board of Directors to
reflect equity issuances of the Company. 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 three (3) months of the execution of this Agreement, and shall be
further based upon the Executive's performance as
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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 acknowledges that Incentive
Compensation will be in the form of the above-referenced Company stock
options, and accordingly, will, most likely, not receive an additional cash
bonus.
(c) Options. Upon execution of this Agreement, Executive shall receive
an option to purchase 75,000 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 twenty
(20) days per year. In addition, the Company has eight 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
$35,000 of normal moving expenses upon submission of Executive's receipts
and per industry standards. Executive shall also receive reimbursement for
all tax liability incurred as a result of relocation expense reimbursement,
i.e., relocation expenses will be "grossed up", to cover taxes on
reimbursement. Additionally, Executive shall receive reimbursement for
duplicate housing expenses in the event he is not able to sell or lease his
current residence prior to April 1, 2004 up to a maximum of $6,500.
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. The Executive's office shall be in Boulder, CO until April 1, 2004
and as such his travel between Boulder and Nashville shall be a business expense
until April 1, 2004.
6. Disability.
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(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 nine (9)
months (follow Paragraph 8 below).
(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 nine (9) months' Base Salary as in effect at the time of the
termination, less any amount the Executive receives from another employer, as a
consultant or the like. The benefits and perquisites described in this Agreement
as in effect at the date of termination of employment will be continued for six
(6) months.
(b) If the Executive's employment terminates due to Termination for
Cause (as defined below), breach of this Agreement by Executive or
resignation by Executive, 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
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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 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
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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.
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.
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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
Xxxxxxx Xxxxxxx Xxxx, Xxxxxxxx, XX 00000, with a copy to:
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 __5405 Xxxxxxxxx Xxxxx, Xxxxxxx, 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.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
EXECUTIVE
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
BIOMIMETIC PHARMACEUTICALS, INC.
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Its: President
