Exhibit 10.1
EMPLOYMENT
AGREEMENT
EMPLOYMENT AGREEMENT
(the “Agreement”), dated
as of September 18, 2006 (the “Commencement Date”),
between Langer, Inc., a Delaware corporation (the
“Company”), and Sara Cormack (the
“Employee”).
W I T N E S S E T
H :
WHEREAS , the Company desires to employ the Employee and
to be assured of the Employee’s services on the terms and
conditions hereinafter set forth; and
WHEREAS , the Employee is willing to accept such
employment on such terms and conditions.
NOW THEREFORE
, in consideration of the mutual
covenants and agreements set forth in this Agreement, the Company
and the Employee hereby agree as follows:
1. Term
.
The term of this Agreement shall
commence on the Commencement Date and shall expire on the third
anniversary of Commencement Date (the “Term”), subject
to earlier termination as provided herein.
2.
Duties .
(a)
During the Term of this Agreement, the Employee shall serve as the
Chief Financial Officer of the Company, or in such other executive
capacity as may be assigned to the Employee, and shall perform all
duties commensurate with the Employee’s position and as may
be assigned to the Employee by the Chairman of the Board of
Directors or the Chief Executive Officer of the Company or such
other person(s) as may be designated by the Board of Directors of
the Company (the “Board”). The Employee shall devote
the Employee’s full business time and energies to the
business and affairs of the Company and shall use the
Employee’s best efforts, skills and abilities to promote the
interests of the Company, and to diligently and competently perform
the duties of the Employee’s position.
(b) The Employee shall report
to the Chairman of the Board or the Chief Executive Officer or such
other person(s) as may be designated by the Board and shall at all
times keep the Chairman of the Board and the Chief Executive
Officer (or such other officer as the Chairman of the Board, the
Chief Executive Officer or the Board may designate from time to
time) promptly and fully informed (in writing if so requested) of
the Employee’s conduct and of the business or affairs of the
Company, and provide such explanations of the Employee’s
conduct as may be required.
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3.
Compensation, Bonus, Stock Options, Benefits,
etc.
(a)
Salary . During the Term of this
Agreement, the Company shall pay to the Employee, and the Employee
shall accept from the Company, as compensation for the performance
of services under this Agreement and the Employee’s
observance and performance of all of the provisions hereof, an
annual salary at the rate of $225,000 (the “Base
Compensation”). The Base Compensation shall be payable
in accordance with the normal payroll practices of the Company and
shall be subject to withholding for applicable taxes and other
amounts. The Employee’s performance and the Base Compensation
shall be subject to annual review by the Company.
(b)
Bonus . In addition to the Base Compensation
described above, the Employee shall, in the sole and absolute
discretion of the Compensation Committee of the Board, be entitled
to performance bonuses which may be based upon a variety of
factors, including the Employee’s performance and the
achievement of Company goals, all as determined in the sole and
absolute discretion of the Board or Compensation Committee of the
Board. Any bonus paid to the Employee shall be subject to
withholding for applicable taxes and other amounts. In addition,
the Employee may be entitled to participate in such other bonus
plans, whether during the term of this Agreement as the
Compensation Committee of the Board may, in its sole and absolute
discretion, determine.
(c)
Stock Options . The Company shall issue and grant to
Employee, under the Company’s 2005 Stock Incentive Plan (the
“Plan”), options to purchase 100,000 shares of the
Company’s common stock (“Common Stock”) having an
exercise price equal to the closing price of the Common Stock on
the date of grant, of which (i) 33,333 shall vest on the
second anniversary of the Commencement Date; (ii) 33,333 shall
vest on the third anniversary of the Commencement Date; and
(iii) 33,334 shall vest on the fourth anniversary of the
Commencement Date. During the Term of this Agreement the
Employee agrees not to sell, pledge, hypothecate or otherwise
transfer the Common Stock issuable upon the exercise of each
tranche of options identified above within a one year period after
vesting of such tranche without the consent of the Board of
Directors. The terms and provisions of such options shall be set
forth in a stock option agreement in a form satisfactory to the
Company and consistent with the Company’s standard form of
stock option agreement under the Plan. In addition, the
Employee may be entitled, during the term of this Agreement, to
receive such additional options, at such exercise prices and other
terms as the Compensation Committee of the Board may, in its sole
and absolute discretion, determine.
(d)
Benefits . During the Term of this Agreement,
the Employee shall be entitled to participate in or benefit from,
in accordance with the eligibility and other provisions thereof,
the Company’s medical insurance and other fringe benefit
plans or policies as the Company may make available to, or have in
effect for, its senior executive officers from time to time.
The Company and its affiliates retain the right to terminate or
alter any such plans or policies from time to time. The
Employee shall also be entitled to four weeks’ paid vacation
each year, sick leave and other similar benefits in accordance with
policies of the Company from time to time in effect for its senior
executive officers.
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(e)
Reimbursement of Business Expenses . During
the Term of this Agreement, upon submission of proper invoices,
receipts or other supporting documentation reasonably satisfactory
to the Company and in accordance with and subject to the
Company’s expense reimbursement policies, the Employee shall
be reimbursed by the Company for all reasonable business expenses
actually and necessarily incurred by the Employee on behalf of the
Company in connection with the performance of services under this
Agreement.
4.
Representations of Employee .
(a)
The Employee represents and warrants that the Employee is not party
to, or bound by, any agreement or commitment, or subject to any
restriction, including but not limited to agreements related to
previous employment containing confidentiality or noncompetition
covenants, which presently has or may in the future have a
possibility of adversely affecting the business of the Company or
the performance by the Employee of the Employee’s duties
under this Agreement.
(b)
During the Term and the Severance Period (as defined in Section
7(f)), if any, the Employee agrees that the Employee will not offer
for sale, sell, pledge, assign, hypothecate or otherwise create any
interest in or dispose of (or enter into any transaction or device
that is designed to, or could reasonably be expected to, result in
any of the foregoing) any shares of Common Stock owned by the
Employee on the Commencement Date or any shares of Common Stock
owned or acquired by him after the Commencement Date upon the
conversion or exercise of options or any securities convertible
into or exercisable or exchangeable for Common Stock, without first
notifying the Board in writing to inquire as to whether there exist
any facts or circumstances that would make it inadvisable for the
Company if the Employee engaged in such transaction.
(c)
The representations, warranties and covenants of this Section 4
shall survive termination of the Employee’s employment
hereunder and the expiration of the Term hereof.
5.
Confidentiality, Noncompetition, Nonsolicitation and
Non-Disparagement.
For purposes of this Section 5, all
references to the Company shall be deemed to include the
Company’s affiliates and subsidiaries and their respective
subsidiaries, whether now existing or hereafter established or
acquired. In consideration for the compensation and benefits
provided to the Employee pursuant to this Agreement, the Employee
agrees with the provisions of this Section 5.
(a)
Confidential Information . (i) The
Employee acknowledges that as a result of the Employee’s
retention by the Company, the Employee has and will continue to
have knowledge of, and access to, proprietary and confidential
information of the Company, including, without limitation, research
and development plans and results, software, databases, technology,
inventions, trade secrets, technical information, know-how, plans,
specifications, methods of operations, product and service
information, product and service availability, pricing information
(including pricing strategies), financial, business and marketing
information and
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plans, and the identity of
customers, clients and suppliers (collectively, the
“Confidential Information”), and that the Confidential
Information, even though it may be contributed, developed or
acquired by the Employee, constitutes valuable, special and unique
assets of the Company developed at great expense which is the
exclusive property of the Company. Accordingly, the Employee
shall not, at any time, either during or subsequent to the Term of
this Agreement, use, reveal, report, publish, transfer or otherwise
disclose to any person, corporation or other entity, any of the
Confidential Information without the prior written consent of the
Company, except to responsible officers and employees of the
Company and other responsible persons who are in a contractual or
fiduciary relationship with the Company and who have a need for
such Confidential Information for purposes in the best interests of
the Company, and except for such Confidential Information which is
or becomes of general public knowledge from authorized sources
other than the Employee.
(ii) The Employee acknowledges that
the Company would not enter into this Agreement without the
assurance that all the Confidential Information will be used for
the exclusive benefit of the Company.
(b)
Return of Confidential Information . Upon the
termination of this Agreement or upon the request of the Company,
the Employee shall promptly return to the Company all Confidential
Information in the Employee’s possession or control,
including but not limited to all drawings, manuals, computer
printouts, computer databases, disks, data, files, lists,
memoranda, letters, notes, notebooks, reports and other writings
and copies thereof and all other materials relating to the
Company’s business, including without limitation any
materials incorporating Confidential Information.
(c)
Inventions, etc . During the Term and for a
period of one year thereafter, the Employee will promptly disclose
to the Company all designs, processes, inventions, improvements,
developments, discoveries, processes, techniques, and other
information related to the business of the Company conceived,
developed, acquired, or reduced to practice by the Employee alone
or with others during the Term of this Agreement, whether or not
conceived during regular working hours, through the use of Company
time, material or facilities or otherwise
(“Inventions”).
The Employee agrees that all
copyrights created in conjunction with the Employee’s service
to the Company and other Inventions, are “works made for
hire” (as that term is defined under the Copyright Act of
1976, as amended). All such copyrights, trademarks, and other
Inventions shall be the sole and exclusive property of the Company,
and the Company shall be the sole owner of all patents, copyrights,
trademarks, trade secrets, and other rights and protection in
connection therewith. To the extent any such copyright and
other Inventions may not be works for hire, the Employee hereby
assigns to the Corporation any and all rights the Employee now has
or may hereafter acquire in such copyrights and any other
Inventions. Upon request the Employee shall deliver to the
Company all drawings, models and other data and records relating to
such copyrights, trademarks and Inventions. The Employee further
agrees, as to all such Inventions, to assist the Company in every
proper way (but at the Company’s expense) to obtain,
register, and from time to time enforce patents, copyrights,
trademarks, trade secrets, and other rights and protection relating
to said Inventions in and all countries, and to that
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end the Employee shall execute all
documents for use in applying for and obtaining such patents,
copyrights, trademarks, trade secrets and other rights and
protection on and enforcing such Inventions, as the Company may
desire, together with any assignments thereof to the Company
or persons designated by it. Such obligation to assist the
Company shall continue beyond the termination of the
Employee’s service to the Company, but the Company shall
compensate the Employee at a reasonable rate after termination of
service for time actually spent by the Employee at the
Company’s request for s
