THIS EMPLOYMENT
AGREEMENT (the “Agreement”), made as of this 4th day of
March, 2009, is entered into by Bio-Imaging Technologies, Inc., a
Delaware corporation with its principal place of business at 826
Newtown Yardley Road, Newtown, Pennsylvania 18940 (the
“Company”), and Mark L. Weinstein (the
“Employee”).
WHEREAS, the
Employee is currently serving as the President and Chief Executive
Officer of the Company.
WHEREAS, the
Employee is currently a party to the Amended and Restated
Employment Agreement with the Company dated as of December 31,
2008 (the “Prior Employment Agreement”) which will
terminate on February 28, 2009.
WHEREAS, the
Company and the Employee desire to continue the Employee’s
employment with the Company in accordance with terms and conditions
set forth in this Agreement.
NOW, THEREFORE, in
consideration of the mutual covenants and promises contained in
this Agreement, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the
parties to this Agreement, the parties agree as follows:
1. Term
of Employment . The Company hereby agrees to employ the
Employee, and the Employee hereby accepts employment with the
Company, upon the terms set forth in this Agreement, for the period
commencing on March 1, 2009 and ending on February 28,
2012 (such period, as it may be extended, the “Employment
Period”), unless sooner terminated in accordance with the
provisions of Section 4.
2. Title;
Capacity . The Employee shall serve as President and Chief
Executive Officer or in such other reasonably comparable position
as the Company or its Board may determine from time to time. The
Employee shall be based at the Company’s headquarters in
Newtown, Pennsylvania, or such place or places in the continental
United States as the Board shall determine. The Employee shall be
subject to the supervision of, and shall have such authority as is
delegated to the Employee by, the Board or such officer of the
Company as may be designated by the Board.
The Employee
hereby accepts such employment and agrees to undertake the duties
and responsibilities inherent in such position and such other
duties and responsibilities as the Board or its designee shall from
time to time reasonably assign to the Employee. The Employee agrees
to devote his entire business time, attention and energies to the
business and interests of the Company during the Employment Period.
The Employee agrees to abide by the rules, regulations,
instructions, personnel practices and policies of the Company and
any changes therein which may be adopted from time to time by the
Company. The Employee further agrees to abide by the applicable
rules, practices, policies, restrictions and principles outlined by
the Board in its’ Corporate Policy Governance Manual and
amendments adopted thereto.
3.
Compensation and Benefits .
3.1
Salary . The Company shall pay the Employee, in periodic
installments in accordance with the Company’s customary
payroll practices, an annual base salary of $370,000. Such s
alary may be subject to cost of living or other increases
thereafter as determined by the Board.
3.2
Fringe Benefits . The Employee shall be entitled to
participate in all bonus and benefit programs that the Company
establishes and makes available to its employees, if any, to the
extent that Employee’s position, tenure, salary, age, health
and other qualifications make him eligible to participate,
including, but not limited to, a car allowance not to exceed $750
per month. The monthly car allowance shall be paid in equal
installments on each payroll date during the month in accordance
with the Company’s customary payroll practices. The Employee
shall be entitled to four (4) weeks paid vacation per year, to
be taken at such times as may be approved by the Board or its
designee.
3.3
Reimbursement of Expenses . The Company shall reimburse the
Employee for all reasonable travel, entertainment and other
expenses incurred or paid by the Employee in connection with, or
related to, the performance of his duties, responsibilities or
services under this Agreement, in accordance with policies and
procedures, and subject to limitations, adopted by the Company or
the Board from time to time. The Employee must submit to the
Company receipts and other details of each such expense, in the
form required by the Company, within sixty (60) days after the
later of (i) the Employee’s incurrence of such expense
or (ii) the Employee’s receipt of the invoice for such
expense. If such expense qualifies for reimbursement, then the
Company will reimburse the Employee the expense within thirty
(30) days thereafter. In no event will such expense be
reimbursed after the close of the calendar year following the
calendar year in which that expense is incurred. The amount of
reimbursements to which the Employee may become entitled in any one
calendar year shall not affect the amount of expenses eligible for
reimbursement hereunder in any other calendar year. The
Employee’s right to reimbursement cannot be liquidated or
exchanged for any other benefit or payment.
3.4
Bonuses; Incentive Compensation .
(a) The
Employee shall be eligible to receive, at the sole discretion of
the Board, an annual bonus (the “MIP Bonus”) up to a
maximum amount equal to 50% of the Employee’s annual base
salary upon the achievement of certain milestones as set forth in
an annual Management Incentive Plan, to be mutually agreed upon
(the “Management Incentive Plan”). Additional
milestones may be established to increase the MIP Bonus to a
maximum amount equal to 100% of the Employee’s annual base
salary. The specific annual milestones will be set each year by the
Board following consultation with the Employee. Notwithstanding the
foregoing, unless otherwise waived by the Board, the Employee shall
not be eligible to receive the MIP Bonus if the Company has not
achieved pre-tax earnings for that applicable fiscal year. Any MIP
Bonus awarded to the Employee shall be paid by the 15th day of the
third month following the close of the calendar year for which such
bonus is earned or as soon as administratively practicable
thereafter, but in no event shall such payment be made prior to
the
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first business
day in January in the calendar year immediately following the
calendar year for which that bonus is earned or after April 30
of that calendar year.
(b) In
addition to Section 3.4(a) above, upon the execution of this
Agreement, the Employee shall be entitled to receive an equity
bonus in the form of restricted stock units covering 40,000 shares
of the Company’s common stock (the “RSU Award”),
which will be awarded as of March 4, 2009, pursuant to the
Company’s 2002 Stock Incentive Plan, as amended and restated
from time to time (the “Plan”). The RSU Award will vest
as to 13,333 shares on March 1, 2010, 13,333 shares on
March 1, 2011 and 13,334 shares on March 1, 2012.
Notwithstanding the foregoing vesting schedule, the shares of
Common Stock underlying the RSU Award will not be issued to the
Employee until the earlier of: (i) the Employee’s
Cessation of Service (as defined in the Plan) with the Company; or
(ii) a Change of Control (as defined in the Plan); or
(iii) seven years from the date of the award. Any future
equity awards during the Employment Period may be awarded by the
Company’s Compensation Committee in its sole discretion to be
reviewed on an annual basis. The remaining terms of the RSU Award,
including the share issuance schedule and the payment of
withholding taxes, shall be as set forth in the Company’s
form Restricted Stock Unit Award Agreement.
(c) The
number of shares of the Company’s common stock to which the
Employee may become entitled pursuant to Paragraph 3(b) shall be
appropriately adjusted in the event of any stock split, stock
dividend, combination or exchange of shares, recapitalization or
other similar transaction affecting the outstanding shares of the
Company’s common stock without the Company’s receipt of
consideration.
3.5
Withholding . All salary, bonus and other compensation
payable to the Employee shall be subject to applicable withholding
taxes.
4.
Termination of Employment Period . The employment of the
Employee by the Company pursuant to this Agreement shall terminate
upon the occurrence of any of the following:
4.1
Expiration of the Employment Period;
4.2
At the election of the Company, for Cause (as defined below),
immediately upon written notice by the Company to the Employee,
which notice shall identify the Cause upon which the termination is
based. For the purposes of this Section 4.2,
“Cause” shall mean (a) a good faith finding by the
Company that (i) the Employee has repeatedly failed to perform
his assigned duties for the Company, or (ii) the Employee has
engaged in dishonesty, gross negligence or misconduct, or
(b) the conviction of the Employee of, or the entry of a
pleading of guilty or nolo contendere by the Employee to, any crime
involving moral turpitude or any felony;
4.3
At the election of the Employee, for Good Reason (as defined
below), immediately upon written notice by the Employee to the
Company, which notice shall identify the Good Reason upon which the
termination is based. For the purposes of this Section 4.3,
“Good Reason” for termination shall mean (i) a
material adverse change in the Employee’s authority, duties
or compensation without the prior written consent of the Employee
(provided
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that neither
the hiring of a chief operating officer nor the hiring of a chief
financial officer by the Company and the relinquishment of such
title and associated duties by the Employee shall constitute Good
Reason hereunder), (ii) a material breach by the Company of
the terms of this Agreement, which breach is not remedied by the
Company within 10 days following written notice from the
Employee to the Company notifying it of such breach or
(iii) the relocation of the Employee’s place of work
more than 50 miles from the Company’s current executive
offices.
4.4
Upon the death or disability of the Employee. As used in this
Agreement, the term “disability” shall mean the
inability of the Employee, due to a physical or mental disability,
for a period of 90 days, whether or not consecutive, during
any 360-day period, to perform the services cont
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