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EXECUTIVE EMPLOYMENT AGREEMENT

Employee Retention Agreement

EXECUTIVE EMPLOYMENT AGREEMENT | Document Parties: BIOSPECIFICS TECHNOLOGIES CORP You are currently viewing:
This Employee Retention Agreement involves

BIOSPECIFICS TECHNOLOGIES CORP

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Title: EXECUTIVE EMPLOYMENT AGREEMENT
Governing Law: New York     Date: 8/8/2008
Industry: Biotechnology and Drugs     Law Firm: Brown Raysman;Thelen Reid     Sector: Healthcare

EXECUTIVE EMPLOYMENT AGREEMENT, Parties: biospecifics technologies corp
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Exhibit 10.1

 

BioSpecifics Technologies Corp.

 

EXECUTIVE EMPLOYMENT AGREEMENT

 

 

This Executive Employment Agreement (the “ Agreement ”) is entered into as of August  5, 2008 (the “ Effective Date ”) by and between BioSpecifics Technologies Corp. (the “ Company ”), and Thomas L. Wegman (“ Executive ”).  This Agreement incorporates and supersedes the Change of Control Agreement entered into on June 18, 2007 between the Company and Executive.  The Change of Control Agreement is no longer effective.

 

1.            Duties and Scope of Employment .

 

(a)            Positions and Duties .  As of the Effective Date, Executive will continue to serve as President and Principal Executive Officer of the Company.  Executive will render such business and professional services in the performance of his duties, consistent with Executive’s position within and historical duties for the Company, as set forth in the Company’s by-laws and as may reasonably be assigned to him by the Company’s Board of Directors (the “ Board ”).  The period of Executive’s employment under this Agreement is referred to herein as the “ Employment Term .”

 

(b)            Obligations .  During the Employment Term, Executive will perform his duties faithfully and reasonably to the best of his ability and will devote his full business efforts and time to the Company.  For the duration of the Employment Term, Executive agrees not to actively engage in any other employment, occupation or consulting activity for any direct or indirect remuneration without the prior approval of the Board, which approval will not be unreasonably withheld; provided , however , that nothing herein shall restrict the Executive’s right or ability to serve as a director for or otherwise participate in a charitable, non-profit or community organization so long as such service or participation does not unreasonably interfere with the Executive’s performance of his duties hereunder.

 

2.            Term . Unless earlier terminated in accordance with the terms and conditions hereinafter provided, and subject to certain provisions hereof which survive the term of the employment of the Executive by the Company, the term of this Agreement shall be comprised of a two (2) year period of employment commencing on the date hereof (the “Employment Term”), and shall be extended thereafter for additional one-year periods unless or until the Company or the Executive provides no less than 90 days prior notice to the other party of the termination of the Agreement at the end of the then current term of employment.

 

3.            Compensation .

 

(a)            Base Salary .  During the Employment Term, the Company will pay Executive an annual salary of $250,000 as compensation for his services (the “ Base Salary ”).  The Base Salary will be paid periodically in accordance with the Company’s normal payroll practices and be subject to the usual, required tax withholding and other lawfully permitted deductions.  Executive’s salary will be subject to review and may be increased based upon the Company’s standard practices.

 

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(b)            Equity .  Executive will be eligible to receive awards of stock options, restricted stock or other equity awards pursuant to any plans or arrangements the Company may have in effect from time to time.  The Board or the Compensation Committee of the Board (the “ Committee ”) will determine in its discretion whether Executive will be granted any such equity awards and the terms of any such award in accordance with the terms of any applicable plan or arrangement that may be in effect from time to time.

 

4.            Employee Benefits .

 

(a)           During the Employment Term, Executive will be entitled to participate in the employee benefit plans currently and hereafter maintained by the Company of general applicability to other senior executives of the Company.  The Company reserves the right to cancel or change the benefit plans and programs it offers to its employees at any time.

 

 

(b)           During the term of this Agreement, the Company shall pay to or on behalf of the Executive an automobile allowance (the “ Car Allowance ”) of $350 per month, payable in advance, pro-rated for the first and last months of this Agreement should the Agreement become effective on a day other than first calendar day of a month.  The Company shall reimburse the Executive for parking, tolls and other travel-related charges and expenses reasonably incurred on the Company’s behalf upon submission of appropriate documentation of such expenses by Executive to the Company.

 

 

5.            Vacation .  Executive will be entitled to paid vacation of four (4) weeks per year in accordance with the Company’s vacation policy (including, without limitation, its policy relating to maximum accrual); provided , however , that such vacation shall not be less than that provided to any other senior executives of the Company.

 

6.            Expenses .  The Company will reimburse Executive for reasonable travel, entertainment or other expenses incurred by Executive in the furtherance of or in connection with the performance of Executive’s duties hereunder, in accordance with the Company’s expense reimbursement policy as in effect.  The Company will reimburse Executive no later than the month following the end of the month in which any such expense is incurred.  The amount of Executive’s expenses eligible for reimbursement during any taxable year will not affect the expenses eligible for reimbursement in any other taxable year.

 

7.            Termination and Severance .

 

(a)            Termination without Cause or Resignation for Good Reason .  If the Company terminates Executive’s employment without Cause or Executive resigns from his employment with the Company for Good Reason, then in lieu of any damages or other severance entitlements under any Company plan or policy, Executive will be entitled to the following:

 

(i)                 Except as otherwise provided in section 9(c), below, a lump sum payment equal to (I) the average of the Executive’s annual Base Salary and bonuses paid by the Company to the Executive over the five (5) years prior to the time of such termination, multiplied by (II) three (3), payable not later than thirty (30) days after the date of termination;

 

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(ii)                 continuation of Executive’s participation in the Company’s Benefit Plans for eighteen (18) months following such termination at the highest level provided to Executive during the period beginning immediately prior to the termination, and at no greater cost to the Executive than the cost Executive was paying immediately prior to the termination; provided , however, that if Executive becomes employed by a new employer, Executive’s coverage under the applicable Company Benefit Plans shall continue, but Executive’s coverage thereunder shall be secondary to (i.e., reduced by) any benefits provided under like plans of such new employer.

 

(iii)                 100% of any options to purchase shares of common stock of the Company then held by Executive, which options are then subject to vesting or limitations on exercisability (excluding options that would vest, if at all, upon the attainment of performance goals or any criteria other than the passage of time or continued performance of services by Executive), shall, notwithstanding any contrary provision in the option agreement or stock option plan pursuant to which such options had been granted, be accelerated and become fully vested and exercisable on the date immediately preceding the effective termination date, and shall survive for their stated term. All other terms of Executive’s options shall remain in full force and effect.

 

(iv)                 If, on the date immediately preceding the termination date, Executive then holds shares of common stock of the Company that are subject to restrictions on transfer (“ Restricted Stock ”), which shares were issued to Executive in a transaction other than pursuant to the exercise of a stock option, then, notwithstanding any contrary provision in the relevant stock purchase agreement or other instrument pursuant to which Executive acquired such shares of Restricted Stock, such restrictions (including without limitation for future or Company repurchase rights) shall expire in their entirety on the date immediately preceding the termination date and all of such shares of common stock shall become transferable free of restriction, subject to the applicable provisions of federal and state securities laws. All other terms of any existing stock purchase agreement or similar document shall remain in full force and effect.

 

(b)            Termination for Cause, Death or Disability; Resignation without Good Reason .  If Executive’s employment with the Company terminates voluntarily by Executive (except upon resignation for Good Reason), for Cause by the Company or due to Executive’s death or disability, then no severance will be payable hereunder.

 

(c)              Conditions to Receipt of Severance .  The receipt of any severance pursuant to Section 7 will be subject to Executive signing and not revoking a customary release of claims (other than for indemnification and insurance coverage) in a form reasonably satisfactory to the Company and the Executive.  No severance pursuant to such Section will be paid or provided until the release becomes effective and any period to revoke has expired.  In addition, if Executive engages in Specified Conduct during the Severance Period or has breached any other agreement with the Company relating to nondisclosure of confidential information, in addition to other remedies available to the Company, the Company may seek disgorgement from Executive of a sum equal to (A) the sum of all payments made by the Company to or on behalf of Executive as provided in Section 7(a), multiplied by (B) a fraction, the numerator of which is (1) the number of calendar months that comprise Executive’s Severance Period, less (2) the number

 

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of calendar months elapsed from the date of Executive’s termination of employment to the date of such breach or the first date Executive engages in Specified Conduct, and the denominator of which is the number of calendar months that comprise Executive’s Severance Period.

 

(d)            No Duty to Mitigate .  Executive will not be required to mitigate the amount of any payment contemplated by this Agreement, nor will any earnings that Executive may receive from any other source reduce any such payment.

 

8.            Definitions .

 

(a)            Benefit Plans .  For purposes of this Agreement, “ Benefit Plans ” means plans, policies or arrangements that the Company sponsors (or participates in) and that immediately prior to Executive’s termination of employment provide Executive or Executive’s eligible dependents with medical, dental, vision or other benefits (excluding, however, the Car Allowance and the Executive’s participation in any 401(k) plan or other voluntary deferred compensation plan).  A requirement that the Company provide Executive and Executive’s eligible dependents with coverage under the Benefit Plans will not be satisfied unless the coverage is no less favorable than that provided to senior executives of the Company at any applicable time during the period Executive is entitled to receive severance pursuant to Section 7(a).  The Company may, at its option, satisfy any requirement that the Company provide coverage under any Benefit Plan by (i) reimbursing Executive’s premiums under Title X of the Consolidated Budget Reconciliation Act of 1985, as amended (“ COBRA ”) after Executive has properly elected continuation coverage under COBRA for himself and his dependents  or, (ii) providing coverage under a separate plan or plans providing coverage that is no less favorable or by paying Executive a lump-sum payment which is, on an after-tax basis, sufficient to provide Executive and Executive’s eligible dependents with equivalent coverage under a third party plan that is reasonably available to Executive and Executive’s eligible dependents.

 

(b)            Cause .  For purposes of this Agreement, “ Cause ” means (i) a willful failure in more than one instance by Executive to carry out a lawful and reasonable directive of the Board, other than a failure resulting from Executive’s complete or partial incapacity due to physical or mental illness or impairment, (ii) a willful act by Executive that constitutes gross misconduct that is materially injurious to the Company, (iii) a material breach by Executive of this Agreement; (iv) a material breach of the Secrecy Agreement between Executive and the Company dated as of January 11, 2007 (the “ Secrecy Agreement ”), (v) a material and willful violation by Executive of a federal or state law or regulation applicable to the business of the Company which is materially injurious to the Company, or (vi) Executive’s conviction or plea of guilty or no contest to a felony involving moral turpitude.  The Company will not terminate Executive’s employment for Cause without first providing Executive with written notice specifically identifying the acts or omissions constituting the grounds for a Cause termination and, with respect to clauses (i) through (v), a reasonable cure period of not less than thirty (30) calendar days following such notice; provided , however , that nothing in this Agreement shall restrict the Company’s ability to enforce the terms of this Agreement or the Secrecy Agreement, or to seek injunctive relief against Executive during any cure period.  No act or failure to act by Executive will be considered “willful” unless committed without good faith and without a reasonable belief that the act or omission was in the Company’s best interest.

 

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(c)            Good Reason .  For purposes of this Agreement, voluntary termination by Executive shall be considered a termination for “ Good Reason ,” if the termination occurs within two (2) years or less following the initial existence of any one of the following conditions (each a “ Good Reason Condition ”) arising without the consent of Executive, in each case the good faith determination of which by the Executive shall be conclusive absent manifest error.

 

(i)                 A material diminution in Executive’s Base Salary;

 

(ii)                 A material diminution in Executive’s authority, duties, or responsibilities;

 

(iii)                 A material diminution in the authority, duties, or responsibilities of the supervisor to whom Executive is required to report, including a requirement that Executive report to a corporate officer or employee instead of reporting directly to the Board;

 

(iv)                 A material diminution in the budget over which Executive retains authority;

 

(v)                 A material change in the geographic location at which Executive must perform services hereunder; or

 

(vi)                 Any other action or inaction that constitutes a material breach by the Company of this Agreement;

 

provided   that , within ninety (90) days or less of the initial existence of the Good Reason Condition, Executive has given the Company notice of the existence of the Good Reason Condition and the Company had at least thirty (30) days to cure.

 

(d)            Severance Period .  For purposes of this Agreement, “ Severance Period ” shall mean twelve (12) months.

 

(e)            Specified Conduct .  For purposes of this Agreement, “ Specified Conduct ” means (i) unauthorized disclosure by Executive of confidential information relating to the Company in violation of the Secrecy Agreement; (ii) engagement by Executive, directly or indirectly, as an employee, partner, consultant, director, stockholder, owner, or agent in any business that is competitive with the businesses co


 
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