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.
(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.
(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.
(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;
(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
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.
(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.
(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