This Transition Agreement involves
Title: TRANSITION AND CONSULTING AGREEMENT
Governing Law: Massachusetts Date: 7/20/2016
Industry: Biotechnology and Drugs Sector: Healthcare
TRANSITION AND CONSULTING AGREEMENT
THIS AGREEMENT is made as of July 19, 2016, by and between Juniper Pharmaceuticals, Inc., a Delaware corporation (the “ Company ”), and Frank C. Condella, Jr. (the “ Executive ”).
WHEREAS, Executive currently serves as the Company’s President and Chief Executive Officer, as well as a member of the Company’s Board of Directors (the “ Board ”);
WHEREAS, the Company and Executive desire to set forth the terms and conditions of Executive’s retirement from his service as an officer of the Company and Executive’s role in the transition of his position as an officer of the Company; and
WHEREAS, Executive has agreed to provide his services to assist the Company in the transition to a new President and Chief Executive Officer and to continue to be available to advise and consult as requested by the Company.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein, the Company and Executive agree as follows:
1. Executive’s Retirement .
(a) Executive agrees to remain employed as the Company’s President and Chief Executive Officer until July 31, 2016 (the “ Resignation Date ”). Effective as of the Resignation Date, Executive shall be deemed to have resigned his position as President and Chief Executive Officer but will remain an employee of the Company and a member of the Board.
(b) Executive agrees to remain an employee of the Company from the Resignation Date until August 15, 2016 (the “ Employment Termination Date ”) during such time period he will be available for in person orientation meetings with the new Chief Executive Officer (through August 4, 2016) and will be available via email or phone as needed (after August 4 and until August 15, 2016.)
(c) From the Employment Termination Date through the end of the Consulting Period (as described in Section 5 of this Agreement), Executive shall serve as a consultant to the Company on the terms set forth in Section 5 of this Agreement.
(d) Notwithstanding the foregoing, nothing in this Agreement changes the “at will” nature of Executive’s employment with the Company prior to the Employment Termination Date.
2. Compensation Through Employment Termination Date . If Executive does not voluntarily terminate his employment prior to the Employment Terminations Date, Executive shall receive the following compensation up to the Employment Termination Date:
(a) Executive’s current base salary, which remain the same as it is as of the date of this agreement, through and including the Employment Termination Date.
(b) Executive shall continue to receive the employee benefits he currently receives.
(c) Executive is eligible to receive a pro rata bonus payment under the terms approved in the Company’s 2016 Executive Bonus Plan. The pro rata bonus payment, if any, will be calculated for the period between January 1,2016 to July 31, 2016. Executive’s current base salary shall be used in calculating the pro rata bonus. The pro rata bonus payment, if any, shall be paid to Executive at the same time as it would be paid to other executives of the Company.
3. Post Employment Termination Date . In connection with Executive’s Employment Termination Date and, with respect to any of the following compensation and benefits to which Executive is not currently entitled or that are not required by law, subject to Executive signing and letting become effective a general release of claims in the form attached hereto as Exhibit A (the “ Release ”) within the period of time specified therein:
(a) On the Employment Termination Date, the Company shall pay Executive his unpaid base salary through the Employment Termination Date plus any accrued and unused vacation pay. The Company shall reimburse Executive for his business expenses incurred prior to the Employment Termination Date in accordance with Company policies.
(b) On the Employment Termination Date, Executive’s participation in any Company employee benefit plans or programs (including without limitation any matching contributions under the Company’s 401(k) plan, life insurance premium programs and other medical programs and any car allowance or other personal benefits and perquisites) shall cease. Executive is eligible to elect benefits under the Consolidated Omnibus Budget Reconciliation Act (“ COBRA ”) effective August 16, 2016. For the avoidance of doubt, Executive shall not be eligible for severance benefits under any Company plan.
(c) Attached hereto as Exhibit B is a list of Executive’s outstanding stock options as of the date hereof. Executive agrees that Exhibit B is a correct and complete list of his outstanding stock options on the date of this Agreement. No changes shall be made to the terms of the existing stock options as set forth in the applicable award agreements. Vesting of the outstanding stock options shall continue so long as Executive is a service provider to the Company, which includes his service to the Company as a member of the Board or as a consultant.
(d) Executive agrees to cooperate with the Company in connection with any litigation, whether pending as of the Employment Termination Date or future litigation, as reasonably requested by the Company, at no cost or expense to Executive. The Company will reimburse Executive for reasonable expenses incurred by him in connection with providing such assistance, within thirty (30) days of the submission of the appropriate documentation to the Company.
4. Continuation as a Director on Company Board .
(a) Executive agrees to stand for reelection at 2016 Annual Meeting of Stockholders of the Company on Wednesday, July 27, 2016 and serve as a director if reelected.
(b) If reelected as a director, Executive shall receive the same cash and equity compensation paid to all non-executive directors as set forth in the Company’s 2016 director compensation program, as such program may be amended from time to time. Compensation for duties as a director shall be in addition to other compensation set forth in this Agreement.
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5. Consulting Agreement .
(a) Beginning immediately on the Employment Termination Date and continuing through the earlier of (i) February 28, 2017, (ii) the Company’s termination of the Consulting Period (subject to clause (e) below) or (iii) Executive’s death or Disability (such applicable period, the “ Consulting Period ”), Executive, through Condella & Co., LLC, will be available to provide consulting and advisory services for five (5) workdays each month as may be reasonably requested by the Company’s Chief Executive Officer or the Board. Such services may consist of any matters of concern to the Chief Executive Officer or the Board consistent with Executive’s prior position with the Company. It is expected that Executive’s consulting advice primarily shall be provided in meetings or via telephone discussions with the Company, and Executive shall not be required to prepare or submit extensive reports or memoranda to the Company in connection with providing such services. The Company will reasonably take into consideration Executive’s other business and personal commitments that may arise during the Consulting Period.
(b) Executive shall be paid a monthly fee of $15,000.00 on the first business day of each month during the Consulting Period. Executive shall submit monthly invoices for the services performed and, if requested to do so, shall describe the services provided during the month.
(c) During the Consulting Period, (i) Executive shall not be an employee of the Company, (ii) Executive shall be entitled to receive fees for service as a Board Member, and (iii) Executive shall not be entitled to receive any fringe benefits or perquisites from the Company except as expressly provided in this Agreement or pursuant to any separate written agreement with the Company.
(d) During the Consulting Period, the Company shall pay or reimburse Executive for reasonable out-of-pocket expenses incurred in connection with Executive’s performance of the Consulting Services, upon presentation of written documentation thereof in accordance with Company expense reimbursement policies.
(e) In the event of Executive’s material breach of this Agreement, the Company may terminate the Consulting Period if Executive has not cured such breach within fifteen (15) days after the Company provides written notice to Executive of such breach, and upon such termination, the Company shall have no further obligations under this section 5.
(f) For the purposes of this Agreement, “ Disability ” is defined as any one or more of the following: (i) Executive being unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to last for a continuous period of not less than three (3) months; or (ii) Executive has been determined to be totally disabled by the Social Security Administration.
(g) During the Consulting Period, Executive will not be an employee of Company. Accordingly, Company will not withhold or deduct from the compensation due to the Executive any amounts for federal, state and local taxes, the payment of which is the sole
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responsibility of the Executive. At the end of each calendar year during the Consulting Period, Company will issue to Executive a Form 1099 with respect to the compensation paid under this Agreement during the Consulting Period.
6. Covenants by Executive . During the Consulting Period, and for twelve (12) months thereafter, Executive will not, directly or indirectly recruit, solicit or induce, or attempt to induce, any employee, consultant or vendor of the Company or its affiliates to terminate employment or any other relationship with the Company or its applicable affiliate.
8. Assignment . This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, heirs (in the case of Executive) and permitted assigns. This Agreement is personal to Executive and neither this Agreement nor any rights hereunder may be assigned by Executive. No rights or obligations of the Company under this Agreement may be assigned or transferred by the Company except that such rights or obligations may be assigned or transferred pursuant to a merger or consolidation in which the Company is not the continuing entity, or pursuant to a sale of all or substantially all of the assets of the Company, provided that the assignee or transferee is the successor to all or substantially all of the assets of the Company and such assignee or transferee assumes the liabilities, obligations and duties of the Company, as contained in this Agreement, either contractually or as a matter of law.
9. Arbitration . Any controversy, dispute, or claim between the parties to this Agreement, including any claim arising out