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EMPLOYMENT AGREEMENT

Employment Agreement

EMPLOYMENT AGREEMENT You are currently viewing:
This Employment Agreement involves

BMP SUNSTONE CORPORATION

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Title: EMPLOYMENT AGREEMENT
Governing Law: Delaware     Date: 5/19/2008
Industry: BIOTRX     Sector: HEALTH

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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
     THIS AGREEMENT, made as of the 31st day of March 2008, by and between BMP SUNSTONE CORPORATION, a Delaware corporation (“BMP”), and Fred M. Powell (the “Executive”).
     WHEREAS, BMP desires to offer the Executive’s employment as Chief Financial Officer and the Executive desires to accept such employment with BMP, upon the terms and conditions set forth in this Agreement; and
     WHEREAS, this Agreement will formalize the terms and conditions governing the Executive’s employment with BMP and the termination of that employment.
     NOW, THEREFORE, the parties hereto agree as follows:
PART ONE — DEFINITIONS
For purposes of this Agreement, the following definitions shall be in effect:
     1. “Agreement” means this Employment Agreement, as the same may, from time to time, be amended in accordance with the provisions hereof.
     2. “Board” means BMP’s Board of Directors.
     3. “Change in Control” means a change in the ownership or control of BMP effected through any of the following transactions:
          (i) a merger, consolidation or other reorganization approved by BMP’s stockholders, unless securities representing more than fifty percent (50%) of the total combined voting power of the voting securities of the successor corporation are immediately hereafter beneficially owned, directly or indirectly and in substantially the same proportion, by the persons who beneficially owned BMP’s outstanding voting securities immediately prior to such transaction,
          (ii) a stockholder-approved sale, transfer or other disposition of all or substantially all of BMP’s assets,
          (iii) the closing of any transaction or series of related transactions pursuant to which any person or any group of persons comprising a “group” within the meaning of Rule 13d-5(b)(1) of the 1934 Act (other than BMP or a person that, prior to such transaction or series of related transactions, directly or indirectly controls, is controlled by or is under common control with, BMP) becomes directly or indirectly the beneficial owner (within the meaning of Rule 13d-3 of the 1934 Act) of securities possessing (or convertible into or exercisable for securities possessing) more than fifty percent (50%) of the total combined voting power of BMP’s securities (as measured in terms of the power to vote with respect to the election of Board members) outstanding immediately after the consummation of such transaction or series of related transactions, whether such transaction involves a direct issuance from BMP or the acquisition of outstanding securities held by one or more of BMP’s existing stockholders, or

 


 

However, the term Change in Control shall not include either of the following events undertaken at the election of BMP:
               a. any transaction, the sole purpose of which is to change the state in which BMP is incorporated; or
               b. a transaction, the result of which is to sell all or substantially all of the assets of BMP to another corporation (the “surviving corporation”) provided that the surviving corporation is owned directly or indirectly by the stockholders of BMP immediately following such transaction in substantially the same proportions as their ownership of BMP’s common stock immediately preceding such transaction.
     4. “Change in Control Severance Benefits” means the various payments and benefits to which the Executive may become entitled to under Paragraph 14 of Part Four of this Agreement upon his Involuntary Termination in connection with a Change in Control.
     5. “Code” means the Internal Revenue Code of 1986, as amended and the regulations promulgated thereunder.
     6. “Competing Organization” means any person or legal entity engaged in, about to engage in, or intending to engage in, the business of providing services to foreign and/or domestic pharmaceutical companies, specifically: drug distribution; physician-oriented drug promotion; product registration; clinical trial management; and pre-market entry analyses.
     7. “Competing Service” means any service of any person or legal entity other than BMP, or a parent, subsidiary or affiliate of BMP, in existence or under development, which during the term of this Agreement, competes with or is an alternative to any present or planned future service of BMP, whether or not actively marketed by BMP.
     8. “Customer” means any individual, firm, partnership, corporation, company, joint venture or governmental or military unit or any other entity or any parent, subsidiary or affiliate of any of them which is negotiating or has a contract with BMP or a parent, subsidiary or affiliate of BMP for the purchase, sale or lease of BMP’s or a parent’s, subsidiary’s or affiliate’s services or which has been solicited by BMP or a parent, subsidiary or affiliate of BMP with respect to such purchase or lease during the Executive’s employment with BMP.
     9. “Disability” means a physical or mental disability which renders it impracticable for the Executive to continue to perform his duties under this Agreement, whether with or without reasonable accommodation. The Executive shall be deemed to have incurred such disability if (i) a physician selected by BMP and reasonably satisfactory to the Executive advises BMP that the Executive’s physical or mental condition will render him unable to perform his duties under this Agreement for a period of six (6) consecutive months, or (ii) due to a physical or mental condition the Executive has not substantially performed the material duties required of him hereunder for eighty percent (80%) or more of the normal working days during a period of six (6) consecutive months.
     10. “Employment Period” means the duration of the Executive’s employment with BMP pursuant to the terms of this Agreement.

 


 

     11. “Involuntary Termination” means (i) BMP’s termination of the Executive’s employment for any reason other than a Termination for Cause, (ii) the termination of the Executive’s employment by reason of his death, (iii) the termination of the Executive’s employment by the Company by reason of the Executive’s Disability, or (iv) the Executive’s voluntary resignation following (A) a material reduction in the scope of his duties and responsibilities, (B) a material diminution by the Company of the Executive’s authority, duties or responsibilities that results in a change in his level of reporting so that he no longer directly reports to the Board, (C) a national reduction in the annual rate of his base salary by more than fifteen percent (15%), (D) a material change in the geographic location of the Executive’s principal place of employment that results in a relocation of his principal place of employment by more than fifty (50) miles, or (E) a material breach by BMP of any of its obligations under this Agreement.
     A greater than fifteen percent (15%) aggregate reduction in the Executive’s base salary shall not constitute grounds for an Involuntary Termination under clause (C) above if substantially all of the other executive officers of BMP are subject to the same aggregate reduction to their base salary.
     Notwithstanding the foregoing, no event or condition described in clauses (A) through (E) shall constitute an Involuntary Termination for purposes of this Agreement unless (a) the Executive gives BMP written notice of his intention to resign from employment with BMP for one of the reasons set forth in (A) through (E) and specifies the grounds for such resignation, (b) the notice described in (a) is provided within sixty (60) days after the event giving rise to the Executive’s right to resign first occurs, and (c) such grounds for resignation (if susceptible to correction) are not corrected by BMP within thirty (30) days after its receipt of such notice. If BMP does not correct the ground(s) for resignation during the thirty (30) day period following the Executive’s notice of intent to resign, the Executive’s resignation must become effective within 90 days after the expiration of the cure period in order for such resignation to be treated as an Involuntary Termination under this Agreement.
     12. “1934 Act” means the Securities Exchange Act of 1934, as amended.
     13. “Option” means any option granted to the Executive under the Plan or otherwise to purchase shares of common stock which is outstanding at the time of (i) a Change in Control or (ii) his Involuntary Termination, whether or not in connection with a Change in Control.
     14. “Plan” means (i) BMP’s 2007 Omnibus Equity Compensation Plan, as subsequently amended or restated from time to time, and (ii) any other equity incentive plan established or implemented by BMP.
     15. “Termination for Cause” means the termination of the Executive’s employment for any of the following reasons: (i) the Executive’s conviction of a felony or his commission of any act of personal dishonesty involving the property or assets of BMP, (ii) a material breach by the Executive of one or more of his obligations under his Agreement or his Proprietary Information and Inventions Agreement with BMP, (iii) any intentional misconduct by the Executive which has a material adverse effect upon BMP’s business or reputation, (iv) the Executive’s material dereliction of the major duties, functions and responsibilities of his executive position, (v) a

 


 

material breach by the Executive of any of his fiduciary obligations as an officer of BMP, or (vi) the Executive’s willful and knowing participation in the preparation or release of false or materially misleading financial statements relating to the false or erroneous certification required of him under the Sarbanes-Oxley Act of 2002 or any securities exchange on which shares of BMP’s common stock are at the time listed for trading.
PART TWO — TERMS AND CONDITIONS OF EMPLOYMENT
     1. Duties and Responsibilities.
          A. The Executive shall serve as the Chief Financial Officer of BMP and shall in such capacity report to the President and Chief Executive Officer.
          B. During the employment period specified in Paragraph 2, the Executive agrees that he will: (i) serve BMP faithfully, diligently and to the best of his ability under the direction of the Board, (ii) devote his best efforts and his entire working time, attention and energy to the performance of his duties hereunder and to promoting and furthering the interests of BMP, and (iii) not, without the prior written approval of the Board, become associated with or engaged in, any business other than that of BMP, and he will do nothing inconsistent with his duties to BMP.
     2. Employment Period. The Executive’s employment with BMP shall be governed by the provisions of this Agreement for the period commencing March 31, 2008 , and continuing through March 30, 2009. However, the term of the Executive’s employment pursuant to the terms of this Agreement shall automatically be extended for successive one-year periods hereafter, unless either BMP or the Executive elects, by written notice delivered to the other not later than sixty (90) days prior to the start of any such one-year period, not to renew the term of this Agreement. This Agreement may also be terminated at any time in accordance with the termination of employment provisions set forth in Paragraph 10.
     3. Cash Compensation.
          A. For all services to be rendered by the Executive under this Agreement and such duties as the President and Chief Executive Officer may assign him, BMP agrees to pay the Executive a base salary of $325,000 per year, payable at such times as is customary for salaried employees of BMP and in accordance with the normal payroll practices of BMP.
          B. For each fiscal year of BMP during the Employment Period, beginning with the fiscal year commencing January 1, 2008, the Executive shall be entitled to receive a cash bonus up to 40% of his base salary to be determined by the Chief Executive Officer and approved by the Compensation Committee of the Board of Directors.
          C. BMP shall deduct and withhold from the compensation payable to the Executive hereunder any and all applicable taxes and any other amounts required to be deducted or withheld by Sunstone under applicable statutes, regulations, ordinances or orders governing or requiring the withholding or deduction of amounts otherwise payable as compensation or wages to employees.

 


 

     4. Equity Compensation.
          A. The Executive shall be eligible to receive one or more additional Option grants during the Employment Period, as the President and Chief Executive Officer and Compensation Committee of the Board may deem appropriate in order to provide him with sufficient equity incentive for his position.
          B. The shares of common stock subject to the Options currently held and additional Options which the Executive may subsequently receive over the remainder of the Employment Period, shall be subject to the applicable vesting acceleration provisions of either Paragraph 12 or Paragraph 14 should an Involuntary Termination of his employment occur during the Employment Period.
     5. Expense Reimbursement. BMP shall reimburse the Executive for reasonable out-of-pocket expenses incurred in connection with BMP’s and/or BMP China’s business, including travel expenses, food and lodging while away from home, subject to such polices as BMP may from time to time reasonably establish for its employees and subject to substantiation of expenses as required under applicable tax laws and regulations.
     6. Fringe Benefits.
          A. The Executive shall, throughout the Employment Period, be eligible to participate in all benefit plans which are made available to BMP’s China executives and for which the Executive qualifies.
          B. The Executive shall be entitled to receive four weeks of paid vacation each year, which shall be taken at such time or times as will not unreasonably hinder or interfere with BMP’s business or operations. Vacation time may be accrued from year to year in accordance with BMP’s general vacation policy.
          C. BMP will obtain and maintain at all times directors’ and officers’ liability insurance for Executive, so long as such insurance can be obtained on terms acceptable to the Board.
     7. Indemnification. BMP agrees to defend the Executive and shall indemnify and hold harmless the Executive to the fullest extent permitted by law from any and all liability, costs and expenses which may be assessed against the Executive by reason of the performance of his responsibilities and duties under the terms of this Agreement, provided such liability does not result from the willful misconduct or gross negligence of the Executive.
     8. Proprietary Information.
          A. The Executive hereby acknowledges that BMP and/or BMP China may, from time to time during the Employment Period, disclose to the Executive confidential information pertaining to BMP’s and/or BMP China’s business, strategic plans, technology or financial affairs. All information, data and know-how, whether or not in writing, of a private or confidential nature concerning BMP’s and/or BMP China’s trade secrets, inventions, processes, systems, designs, drawings, product innovations and developments, engineering, marketing strategies and future marketing plans, customer lists, prospective customers, finances and financial reports, employee information and other organizational information (collectively,

 


 

“Proprietary Information”) is and shall remain the sole and exclusive property of BMP and/or BMP China and shall not be used or disclosed by the Executive except to the extent necessary to perform his duties and responsibilities under this Agreement. All tangible manifestations of such Proprietary Information (whether written, printed or otherwise reproduced) shall be returned by the Executive upon the termination of the Employment Period, and the Executive shall not retain any copies or excerpts of the returned items. The foregoing restrictions on the use, disclosure and disposition of BMP’s and/or BMP China’s Proprietary Information shall also apply to the Executive’s use, disclosure and disposition of any confidential information relating to the business, technology or financial affairs of BMP’s and/or BMP China’s customers.
          B. The Executive shall, concurrently with the execution of this Agreement, execute and deliver to BMP a copy of the BMP standard form Proprietary Information and Inventions Agreement and shall remain subject to the terms and provisions of that agreement throughout the Employment Period and for such period hereafter as provided pursuant to the terms of that agreement.
     9. Death or Disability. Upon the Executive’s death or Disability during the Employ
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