EXHIBIT 10.1 EMPLOYMENT AGREEMENTEmployment Agreement |
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EXHIBIT
10.1
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT
AGREEMENT (this “Agreement”), dated as of the 3rd day of
March, 2005, is between OrthoLogic Corp., a Delaware corporation (the
“Corporation”) located at 1275 West Washington, Tempe, Arizona
85281, and James M. Pusey (“Executive”).
The Corporation
desires to employ Executive, and Executive desires to accept such employment on
the terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE,
in consideration of the premises and of the mutual covenants and obligations
hereinafter set forth, the parties hereto agree as follows:
1. Employment;
Effectiveness of Agreement. Not later than March 18, 2005, or such
earlier date as may be specified by Executive (such date, the “Commencement
Date,” for all purposes hereof), the Corporation shall employ the
Executive and the Executive shall accept employment by the Corporation, upon
the terms and conditions hereinafter set forth.
2. Term
of Service. The employment of the Executive hereunder shall commence on the
Commencement Date and continue until terminated pursuant to the terms of this
Agreement. The period of Executive’s employment is hereinafter referred
to as the “Employment Period.”
3. Duties.
During the Employment Period, Executive shall serve as the Chief Executive
Officer (“CEO”) of the Corporation and shall serve the Corporation
faithfully and to the best of his ability. Subject to the approval of the
shareholders, Executive will serve as a Director on the Board of Directors.
Subject to Executive’s continued employment, the Corporation will
nominate Executive for election, and re-election, as a Director on the Board of
Directors at each annual meeting of the shareholders beginning in 2006.
Executive shall devote his full time, attention, skill and efforts to the
performance of such duties as are normal and customary to the position of CEO
as required by or reasonably requested by the Corporation’s Board of
Directors. Subject to paragraph 6(a)(ii), Executive’s responsibilities,
title, working conditions, duties and/or any other aspect of Executive’s
employment may be changed, added to or eliminated during the Employment Period
at the sole discretion of the Corporation. Prior to serving on any outside
board of directors, Executive shall obtain the written consent of the Board of
Directors, provided however that no consent shall be required to serve on the
boards of directors, or boards of trustees, for not-for-profit organizations
provided such service does not, in the good faith judgment of the
Company’s Board of Directors, impair Executive’s performance of his
duties hereunder.
4. Compensation;
Bonus; Benefits; Reimbursement.
(a) Base
Salary. During the Employment Period, the Corporation shall pay to Executive
an annual base salary of $350,000 which shall be subject to review and, at the
option of the Compensation Committee of the Corporation, subject to increase,
but not decrease, (such salary, as the same may be increased from time to time
as aforesaid, being referred to herein as the “Base Salary”). The
Base Salary shall be payable in such installments (but not less
frequently than monthly) as is the policy of
the Corporation with respect to senior executives of the Corporation.
(b) Special
Bonuses. Executive shall be entitled to a signing bonus of $125,000 payable
on the Commencement Date, and an additional bonus of $125,000 payable
(i) upon the completion of one year of service with the Corporation or,
(ii) if Executive’s employment is terminated by the Company without
Cause prior to the completion of one year of service, upon such termination.
(c) Bonuses.
Executive shall be entitled to participate in a discretionary bonus plan
established for Executive from time to time by the Compensation Committee with
reasonable consultation with the Executive. Executive’s target bonus will
be 50% of Base Salary upon the achievement of individual and corporate
performance objectives established jointly from time to time by the Compensation
Committee and the Executive. Such cash bonus, if earned, will be payable to the
Executive annually on or before the first day of March immediately following
the end of the calendar year for which it is earned. Any bonus will be paid in
such manner so that it is not subject to the provisions of Section 409A of
the Internal Revenue Code of 1986, as amended, and shall be interpreted in a
manner consistent with that intention.
(d) Equity
Compensation.
(i) Stock
Options. On the date hereof, the Corporation shall grant to Executive
options to purchase 425,000 shares of the Corporation’s common stock at
an exercise price equal to the closing price of the Corporation’s common
stock on the date hereof, as reported by the Nasdaq Stock Market, and the
Corporation shall grant to Executive on the Commencement Date an option to
purchase an additional 75,000 shares of the Corporation’s common stock at
an exercise price equal to the closing price of the Corporation’s common
stock on the Commencement Date, as reported by the Nasdaq Stock Market
(collectively, the “Initial Option Grant”). The grant shall be
evidenced by one or more grant agreements (collectively, the “Stock
Option Agreement”) which shall provide for immediate vesting as to 10% and
monthly vesting of the remainder in equal amounts over 48 months, subject
to continued employment. To the extent permitted by law and the
Corporation’s 1997 Stock Option Plan (“Plan”), the options
will be qualified incentive stock options as defined under Section 422 of
the Internal Revenue Code of 1986; the remainder of the options will be
nonqualified stock options. During the Employment Period, the Executive shall
be entitled to participate in additional equity compensation plans and programs
as may be determined from time to time in the discretion of the Compensation
Committee.
(ii) Restricted
Stock. On the date hereof, the Corporation shall grant to Executive 200,000
shares of restricted stock. Such grant shall be evidenced by a Letter of
Restricted Stock Grant which shall provide that such restricted stock shall be
subject to restrictions on, among other things, transferability, and that upon
termination of employment all such restricted stock that is at that time
subject to restrictions shall be forfeited and reacquired by the Corporation.
The Letter of Restricted Stock Grant shall provide that the forfeiture
provisions shall lapse as to 50% of the shares upon the acceptance by the FDA
for filing of a New Drug Application for Chrysalin for fresh fracture
indications and that the forfeiture provisions shall
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lapse as to the other 50% of the shares, upon
the attainment of separate milestones to be established within 90 days
after the Commencement Date in good faith consultation between Executive and
the Compensation Committee and which are expected (or required) to be achieved
prior to the initial New Drug Application filing.
(iii) The
Corporation shall use its reasonable best efforts to register with the United
States Securities and Exchange Commission within ninety (90) days of the
date hereof and maintain in effect at all times thereafter a registration
statement under the Securities Act of 1933, as amended (“Securities
Act”), covering (A) all shares issuable upon exercise of the Initial
Option Grant and (B) all shares of restricted stock granted to Executive
as described in Section 4(d)(ii) above; provided that this covenant shall
not apply on or after the date on which Executive is entitled to sell such
shares pursuant to Rule 144(k) under the Securities Act.
(e) Future
Adjustments. On or before March 3 of each calendar year during the term of
this Agreement following the calendar year in which this Agreement commenced,
the Compensation Committee will review the Executive’s Base Salary and
other compensation, including Executive’s entitlement to participate in
additional equity compensation plans, and may make adjustments in its absolute
discretion to such base salary and determine such bonus or additional equity
compensation based upon, among other factors: (i) Executive’s
performance, (ii) the Corporation’s performance, (iii) changes
in costs of living, (iv) changes in Executive’s responsibilities,
and (v) the benefit to the Corporation of Executive’s efforts on its
behalf; provided that Executive’s Base Salary shall not be less than
$350,000 per year during the term of this Agreement.
(f) Benefits.
During the Employment Period, Executive shall receive such medical, dental and
other fringe benefits as may be provided from time to time by the Corporation
to senior management generally.
(g) Vacation.
During the Employment Period, Executive shall be entitled to four weeks paid
vacation during each 12-month period worked.
(h) Reimbursement
of Expenses.
(i) Business
Expenses. During the Employment Period, the Corporation shall reimburse
Executive, in accordance with the policies and practices of the Corporation in
effect from time to time with respect to other members of senior management of
the Corporation, for all reasonable and necessary traveling expenses and other
disbursements incurred by him for or on behalf of the Corporation in connection
with the performance of his duties hereunder upon presentation by the Executive
to the Corporation of appropriate documentation therefor.
(ii) Relocation
Expense. The Corporation shall reimburse Executive for the following
expenses relating to relocation to the Phoenix area:
(1) $15,000
for temporary housing expenses, and/or for the expense of temporarily
maintaining two homes if the Executive purchases a home in the Phoenix area
prior to the sale of Executive’s Boston residence;
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(2) $60,000
for the purchase of a home in the Phoenix area;
(3) reasonable
costs of moving Executive’s household goods to the Phoenix area, in an
amount to be determined by mutual agreement;
(4) the
amount, if any, by which the gross sales price (without deduction for sales
commissions or other expenses of sale) of Executive’s Boston condominium
is less than $724,000, but such reimbursement shall not exceed $50,000.
(iii) Special
Travel Expenses. The Corporation shall reimburse Executive for up to $30,000
per year in airfare expenses for travel by Executive to Pennsylvania to visit
family for so long as Executive’s immediate family maintains their
primary residence is in Pennsylvania.
(iv) The
Corporation shall reimburse Executive for up to $5,000 in legal fees incurred
in connection with the negotiation and execution of this agreement.
(i) Deductions.
The Corporation shall deduct from any payments to be made by it to the
Executive under this Section 4 or Section 6 any amounts required to
be withheld in respect of any federal, state or local income or other taxes.
5. Termination
and At-Will Employment.
(a) Executive
understands and acknowledges that the Employment Period with the Corporation is
for an unspecified duration and constitutes “at-will” employment.
Executive acknowledges that this employment relationship may be terminated at
any time, with or without cause, at the option either of the Corporation or
Executive, and with or without notice.
(b) For
convenience of reference, the date upon which any termination of the employment
of the Executive pursuant to this Section 5 hereof shall be effective is
hereinafter referred to as the “Termination Date.” If Executive
dies during the Employment Period, the Termination Date shall be deemed to be
the date of Executive’s death.
6. Effect
of Termination of Employment.
(a) As
used herein, the following defined terms shall have the following meanings:
(i) “Cause”
shall mean Executive’s (i) conviction or entry of a plea of nolo
contendere for a crime or offense involving misappropriation of monies or other
property, or any felony offense (including Foreign Corrupt Practices Act of
1977) for any crime of moral turpitude, or his commission of fraud or
embezzlement; (ii) breach, other than an immaterial breach, by Executive
of his fiduciary duties to the Corporation, as determined under the laws of the
State of Delaware; (iii) gross insubordination or willful failure to
discharge any of his duties or obligations under this Agreement, which failure,
if curable, is not cured within thirty (30) days after receipt of written
notice of such breach (the “Cure Period”), provided, however, that
successive material failures involving the same conduct by Executive shall be
deemed incapable of being cured; (iv) willful or knowing violation of any law,
rule, or regulation of any
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governmental agency with jurisdiction over
the Corporation which could reasonably be expected to impair the
Corporation’s ability to conduct its business in its usual manner or
could reasonably be expected to subject the Corporation to public disrespect,
scandal or ridicule; (v) insobriety or non-therapeutic use of drugs,
chemicals or controlled substances either (A) in the course of performing
his duties and responsibilities under this Agreement or (B) in any other
manner affecting his ability to perform his duties and responsibilities under
this Agreement; or (vi) willful misconduct with respect to the business and
affairs of the Corporation or any subsidiary or affiliate thereof, including,
but not limited to Executive’s willful violation of the
Corporation’s Code of Ethics, Insider Trading Policy or any other
material Corporation policy applicable to all senior management.
(ii) “Good
Reason” shall mean with respect to Executive (i) without his
consent, he is not the Chief Executive Officer of the Corporation; (ii) a
material diminution in duties of Executive described in this Agreement,
(iii) the failure of the Corporation to obtain the agreement from any
successor to assume and agree to perform this Agreement or (iv) the
material breach of this Agreement by the Corporation, which neglect or failure,
if curable, is not cured within thirty (30) days after receipt of written
notice of such breach.
(iii) “Disability”
shall mean Executive is incapacitated or disabled by accident, sickness or
otherwise so as to render Executive mentally or physically incapable of performing
the essential functions of his job required hereunder for six consecutive
months.
(b) If this Agreement is terminated by (i) the Corporation without Cause (other than by reason of Executive’s death or Disability) or (ii






