EXHIBIT
10.21
AMENDED AND
RESTATED
EXECUTIVE
EMPLOYMENT AGREEMENT
This Amended and Restated Executive
Employment Agreement (the “Agreement”) is made as of
May 3, 2006 (the “Effective Date”) between CNS, Inc., a
Delaware corporation (“CNS”), and Dan Cohen
(“Employee”) and amends and restates the Executive
Employment Agreement dated February 12, 1999, as amended June
29, 2001, June 29, 2003, June 30, 2004 and June 7, 2005
between CNS and Employee.
WHEREAS, CNS considers the
establishment and maintenance of a sound and vital management to be
essential to protecting and enhancing the best interests of CNS and
its shareholders; and
WHEREAS, Employee has made and is
expected to continue to make, due to his experience and knowledge,
a significant contribution to the profitability, growth and
financial strength of CNS; and
WHEREAS, it is in the best interests
of CNS to receive certain assurances from Employee regarding
CNS’s confidentiality, competition and other proprietary
business concerns;
THEREFORE, in consideration of the
foregoing and of this Agreement, continued employment and other
benefits hereunder, as well as other mutual covenants and
obligations hereinafter set forth, CNS and Employee agree as
follows:
1.
Employment . Employee’s sole duties and
responsibilities will be that of Chairman of the Board of Directors
of CNS, Inc., a part-time, regular position with the Company. As
such, Employee will perform the duties of Board Chairman and
director, which shall include chairing Board meetings and
interacting with the Chief Executive Officer as appropriate.
Employee agrees to make himself available to assist the CEO and
CFO, as requested, in reviewing new products and negotiating
licensing contracts with inventors. Employee will also provide
other expertise and assistance, as requested by the CEO or other
members of the Management Team. The Company will provide Employee
home office support and will make an office available to Employee
at CNS.
2.
Term . The Company agrees to retain Employee as an employee
of the Company under the terms of this Agreement until
June 30, 2007, at which time, unless the Agreement is extended
by mutual agreement of the parties, the Agreement shall terminate,
except with respect to the provisions of Sections 6, 7, 8, 9,
10 and 11 of the Agreement, which shall survive. Effective
June 30, 2007, Employee will cease to be an employee of the
Company, and Employee’s salary, perquisites and any other
welfare and fringe benefits provided to him as an employee shall
thereupon cease. Employee shall not be entitled to any salary
continuation, severance or similar payment from the Company under
the Agreement or any policy or practice of the Company because of
such termination on June 30, 2007.
3.
Compensation . As full compensation during the term of
employment for services as Chairman, the Company will pay Employee
a base salary at a rate of One Hundred Thousand Dollars ($100,000)
per annum, payable in semi-monthly installments, subject to tax
withholding to the extent required by law. Employee will not accrue
paid time off during the term of employment, but shall be entitled
to take time off as required without any change in base
salary.
4.
Benefits . Employee shall be entitled to such insurance,
401(k) program and other benefits available to all part-time
salaried employees of CNS, subject to any limitations on such
benefits to officers, directors or highly paid employees in order
that such benefit programs qualify under federal or state law for
favored tax or other treatment. Such benefit programs may be
changed from time to time by the Company. Employee shall also be
entitled to reimbursement of his reasonable and necessary expenses
incurred in connection with the performance of his duties
hereunder. The Company shall also pay or reimburse Employee for the
reasonable and necessary costs associated with a home office
maintained by the Employee, provided that the Employee provides
reasonable proof of such expenses in accordance with general
Company policies.
5.
Termination by Employee . Employee may resign his employment
with CNS effective upon 30 days’ advance written notice to
the Chief Executive Officer. If Employee resigns under this
paragraph, the Chief Executive Officer retains the right to
terminate his employment, effective upon written notice to
Employee, at any time during the 30-day notice period; provided,
however, that base salary and the employer portion of his health
insurance premiums will continue to be paid by CNS for the duration
of the 30-day notice period.
6.
Confidential Information. All knowledge and information not
already available to the public which Employee may acquire or has
acquired with respect to product development, improvements,
modifications, discoveries, designs, methods, systems, computer
software, programs, codes and documentation, research, designs,
formulas, instructions, methods, inventions, trade secrets,
services or other private or confidential matters of CNS (such as
those concerning sales, costs, profits, organizations, customer
lists, pricing methods, etc.), or of any third party which CNS is
obligated to keep confidential, shall be regarded by Employee as
strictly confidential and shall not be used by Employee directly or
indirectly or disclosed to any persons, corporations or firms. All
of the foregoing knowledge and information are collectively termed
“Confidential Information” herein. Employee’s
obligations under this paragraph will not apply to any information
which (a) is or becomes known to the general public under
circumstances involving no breach by Employee of the terms of this
paragraph; (b) is generally disclosed to third parties by CNS as a
continuing practice without restriction on such third parties; (c)
is approved for release by written authorization of CNS’s
Board; or (d) Employee is obligated by law to disclose.
7.
Disclosure and Transfer of Product Developments,
etc.
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a.
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Employee will make full and prompt disclosure to
CNS of all product developments, improvements, modifications,
discoveries, computer software, programs, codes and documentation,
research, designs, formulas, configurations,
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instructions, methods and inventions
(all of which are collectively termed “Developments”
herein), whether patentable or not, made, discovered, conceived or
first reduced to practice by Employee or under his direction during
his employment, alone or with others, whether or not made or
conceived during normal working hours or on the premises of CNS
which relate in any material way to the business or to research or
development work of CNS. Employee confirms by his acceptance of
t
