Exhibit 10.1
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement") entered into as of May 10, 2002
by and between Orthovita, Inc., a Pennsylvania corporation (the "Company"), and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, an employee of the Company ("Koblish").
WHEREAS, the Company wishes to employ Koblish as its President and
Chief Executive Officer, and to elect Koblish as its Chief Executive Officer as
provided in Section 1.2 herein, and both parties desire to enter into an
employment agreement to reflect Koblish's present position with the Company upon
the terms and conditions set forth herein.
NOW, THEREFORE, the parties hereto, intending to be legally bound,
hereby agree as follows:
1.0 Employment. The Company hereby employs Koblish as its President and
Chief Executive Officer. Koblish hereby accepts such employment and agrees to
perform his duties and responsibilities, in accordance with terms, conditions
and provisions hereinafter set forth.
1.1 Employment Term. The term of Koblish's employment under this
Agreement shall commence as of the date hereof (the "Effective Date") and shall
continue in effect through April 23, 2003 with the option thereafter to renew
the contract for one year intervals provided, however, that if a Change in
Control shall have occurred during the Employment Term, the Employment Term
shall expire no earlier than twelve (12) months beyond the month in which such
Change in Control occurred (the "Employment Term"), unless terminated prior
thereto in accordance with the applicable provision of Section 5.
1.2 Duties and Responsibilities. Koblish shall serve as the Company's
President and Chief Executive Officer and in such other senior positions, if
any, to which he may be elected by the Board of Directors of the Company (the
"Board") during the Employment Term. During the Employment Term, Koblish shall
perform all duties and accept all responsibilities incident to, and not
inconsistent with, such positions.
1.3 Extent of Service. During the Employment Term, Koblish agrees to
use his best efforts to carry out his duties and responsibilities under Section
1.2 hereof and, consistent with the other provisions of this Agreement, to
devote substantially all his business time, attention, and energy thereto except
to the extent required by Koblish's outside board directorships, civic or
charitable activities held on the date of this Agreement. Koblish agrees not to
become engaged in any additional business, civic or charitable activity which,
in the Board's reasonable judgment, is likely to interfere materially with his
ability to discharge his duties and responsibilities to the Company.
1.4 Base Salary. For all the services rendered by Koblish hereunder,
the Company shall pay Koblish a base salary at the annual rate of $225,000 plus
an automobile allowance of $800.00
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per calendar month ("Base Salary"), payable in installments at such times as the
Company customarily pays its other senior level Officers (but in any event no
less often than monthly). Koblish's Base Salary shall be reviewed and may be
appropriately adjusted at such time by the Board pursuant to its normal
performance review policies for senior level Officers upon his election as CEO;
such increased Base Salary, if any, is hereafter referred to as "Increased Base
Salary".
1.5 Retirement and Benefit Coverages. Koblish shall be eligible to
participate in any pension plans, retirement plans and any health, accident,
general liability, directors and officers liability, or disability insurance,
sick leave or other benefit plans or programs made available to other similarly
situated employees of the Company (the "Plans") as long as they are kept in
force by the Company and provided Koblish meets the eligibility requirements and
other terms, conditions and restrictions of the respective Plans. In addition,
Koblish shall be entitled to the Company's regular holiday and vacation policy
and any other perequisites provided by the Company to its senior level Officers.
1.6 Stock Options/Stock Awards/Benefits. In the event that (i)
Koblish's employment is terminated by the Company or a successor entity pursuant
to Section 5.4 or (ii) Koblish resigns from the Company pursuant to Section 5.5
or (iii) there is a Change of Control as defined in Section 6, then one hundred
percent (100%) of any stock option, restricted stock or other stock awards
granted Koblish that have not yet become exercisable or vested shall become
exercisable or vested on the effective date of the event set forth in (i), (ii)
or (iii) of this sentence and Koblish shall become entitled to the payments set
forth in Sections 5.4 or 5.5, as applicable. Subject to the discretion of the
Board, Koblish shall be eligible to receive additional grants of stock options
from time to time in the future, on such terms and subject to such conditions as
the Board shall determine as of the date of any such grant.
1.7 Life Insurance. During the Employment Term, the Company shall
maintain, under an arrangement satisfactory to the Company, $3,000,000 of life
insurance on the life of Koblish. Koblish shall have the right to designate the
beneficiary of such insurance policy. The Company may maintain term life
insurance, whole life insurance or such other form of insurance as it deems
appropriate.
1.8 Incentive Programs. Koblish shall be entitled to participate in any
short-term or long-term incentive compensation programs established by the
Company for its senior level Officers generally ("Incentive Programs"). Payments
under such Incentive Programs shall depend upon achievement of certain business
and individual performance targets specified and approved by the Board;
provided, however, that Koblish's "target opportunity" under any such Incentive
Program shall be based on 50% of annual salary and at least at the highest level
of target award for any other senior Officer.
2.0 Confidential Information. Koblish acknowledges that, by reason of
his employment by and service to the Company before and during the Employment
Term, he has had and will continue to have access to certain confidential and
proprietary information relating to the Company's business, which may include,
but is not limited to, trade secrets as defined by Pennsylvania Law,
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customer information, supplier information, cost and pricing information,
marketing and sales techniques, strategies and programs, proprietary computer
programs and software and financial information (collectively referred to as
"Confidential Information"). Koblish acknowledges that such Confidential
Information is a valuable and unique asset of the Company and Koblish covenants
that he will not at any time during the Employment Term use any Confidential
Information or divulge or disclose any Confidential Information to any person,
firm or corporation except in connection with Koblish's good faith belief as to
the proper performance of his duties for the Company. Koblish also covenants
that, for a period of three (3) years after the termination of his employment,
directly or indirectly, he will not use any Confidential Information for any
purpose or divulge or disclose any Confidential Information to any person, firm
or corporation, unless such information is in the public domain through no fault
of Koblish or except when required to do so by a court of law, by any
governmental agency having supervisory authority over the business of the
Company or over Koblish or by any administrative or legislative body (including
a committee thereof) which Koblish reasonably believes has apparent jurisdiction
to order him to divulge, disclose or make accessible such information, in which
case Koblish will inform the Company in writing promptly of such required
disclosure.
2.1 Intellectual Property. Koblish will communicate to the Company any
and all novel ideas, concepts, inventions, processes, and improvements,
patentable or unpatentable, made or conceived by him, either solely or jointly
with others, from the time of entering the Company's employ until he leaves,
along the line of the Company's business, or resulting from or suggested by any
work which he may do for the Company, or at its request, and he will, at all
times during his employment with the Company and after his termination for any
reason, assist the Company in every proper way (at the Company's expense), to
obtain for the Company's own benefit patents for any or all of these ideas,
concepts, inventions, processes and improvements in the United States and any
and all foreign countries, if patentable, by executing and delivering to the
Company any and all applications, assignments, and other instruments, by giving
evidence and testimony, and by executing and delivering to the Company all
drawings, blueprints, notes, and specifications deemed necessary by the Company
in order to apply for and obtain letters patent of the United States or foreign
countries for such ideas, concepts, inventions, processes and improvements, and
Koblish does hereby assign and will assign and convey to the Company his entire
right, title and interest in and to all such ideas, concepts, inventions,
processes, and improvements, and all patent applications and patents thereon.
Koblish further agrees to conduct himself as described above after leaving the
Company's employment as to all ideas, concepts, inventions, processes and
improvements conceived or disclosed while with the Company.
3.0 Non-Competition; Non-Solicitation.
(a) During the Employment Term and for a period of two years
thereafter, Koblish will not, except with the prior written consent of the
Board, directly or indirectly own, manage, operate, join, control, finance or
participate in the ownership, management, operation, control or financing of, or
be connected as an officer, director, employee, partner, principal, agent,
representative, consultant or otherwise with, or use or permit his name to be
used in connection with, any business or enterprise that is engaged in a
geographic area in which the Company or any of its
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affiliates is operating either during the Employment Term or on the date
Koblish's employment terminates, as applicable, (whether or not such business is
physically located within those areas) (the "Geographic Area"), in any
biomaterials business that is directly competitive to a business from which the
Company or any of its affiliates derive at least five percent of its respective
gross revenues either during the Employment Term or on the date Koblish's
employment terminates, as applicable ("Competing Business"). It is recognized by
Koblish that the business of the Company and its affiliates and Koblish's
connection therewith is or will be involved in activity throughout the
Geographic Area, and that more limited geographical limitations on this
non-competition covenant are therefore not appropriate.
(b) The foregoing restrictions shall not be construed to
prohibit the ownership by Koblish of less than five percent of any class of
securities of any corporation which is engaged in any of the foregoing
businesses having a class of securities registered pursuant to the Securities
Exchange Act of 1934 (the "Exchange Act"), provided that such ownership
represents a passive investment and that neither Koblish nor any group of
persons including Koblish in any way, either directly or indirectly, manages or
exercises control of any such corporation, guarantees any of its financial
obligations, otherwise takes any part in its business, other than exercising his
rights as a shareholder, or seeks to do any of the foregoing.
(c) Koblish further covenants and agrees that, during the
Employment Term and for the period of two years thereafter, Koblish will not,
without the prior written consent of the Company, personally solicit for a
Competing Business any customer that was a customer of the Company or any of its
affiliates during the Employment Term or on the date on which Koblish's
employment terminates or any person who is a managerial or higher level employee
of the Company at the date Koblish's employment terminates. The foregoing
covenant of Koblish shall not apply to any person after twelve months have
elapsed subsequent to the date on which such person's employment by the Company
has terminated.
4.0 Equitable Relief.
(a) Koblish acknowledges and agrees that the restrictions
contained in Sections 2 and 3 are reasonable and necessary to protect and
preserve the legitimate interest, properties, goodwill and business of the
Company, that the Company would not have entered into this Agreement in the
absence of such restrictions and that irreparable injury will be suffered by the
Company should Koblish's breach any of the provisions of Sections 2 and 3.
Koblish represents and acknowledges that (i) he has been advised by the Company
to consult his own legal counsel in respect of this Agreement, and (ii) he has
had full opportunity, prior to execution of this Agreement, to review thoroughly
this Agreement with his counsel.
(b) Koblish further acknowledges and agrees that a breach of any
of the restrictions in Sections 2 and 3 cannot be adequately compensated by
monetary damages. Koblish agrees that the Company shall be entitled to seek
preliminary injunctive relief, without the necessity of proving actual damages.
In the event that any of the provisions of Sections 2 or 3 hereof should
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ever be adjudicated to exceed the time, geographic, service, or other
limitations permitted by applicable law in any jurisdiction, it is the intention
of the parties that the provision shall be amended to the extent of the maximum
time, geographic, service, or other limitations permitted by applicable law,
that such amendment shall apply only within the jurisdiction of the court that
made such adjudication and that the provision otherwise be enforced to the
maximum extent permitted by law.
(c) Koblish irrevocably and unconditionally (i) agrees that any
suit, action or other legal proceeding arising out of this Agreement, including,
without limitation, any action commenced by the Company for preliminary and
permanent injunctive relief and other equitable relief, may be brought in the
United States District Court for the Eastern District of Pennsylvania, or if
such court does not have jurisdiction or will not accept jurisdiction, in any
court of general jurisdiction in ▇▇▇▇▇▇▇ County, Pennsylvania, (ii) consents to
the non-exclusive jurisdiction of either such court in any such suit, action or
proceeding, and (iii) waives any objection which Koblish may have to the laying
of venue of any such suit, action or proceeding in either such court. Koblish
also irrevocably and unconditionally consents to the service of any process,
pleadings, notices or other papers at the address set forth in the notice
provisions of Section 12 hereof.
5.0 Termination. The Employment Term shall terminate upon the
occurrence of any one of the following events:
5.1 Disability. The Company may terminate the Employment Term, in
compliance with applicable law, if Koblish is unable substantially to perform
the essential duties and responsibilities hereunder to the full extent required
by the Board by reason of mental or physical illness, injury or any other cause
for six consecutive months, or for more than nine months in the aggregate during
any period of twelve consecutive calendar months (a "Disability"); provided,
however, that the Company shall continue to pay Koblish his Base Salary or
Increased Base Salary, as applicable, until termination of the Employment Term.
At the date of such termination the Company shall prepare and execute a release
substantially in the form attached hereto as Annex 1, (the "Release"), and
present the Release for execution to Koblish, or Koblish's representative should
he lack capacity to execute the Release. Upon execution of the Release by
Koblish, or his personal representative, as the case may be, Koblish shall be
entitled to receive all payments and benefits to the same extent and at the same
time as specified in Section 5.4(b), offset by any amounts Koblish receives
under any long term disability program maintained by the Company. Otherwise, in
the event of Disability, the Company shall have no further liability or
obligation to Koblish under this Agreement except as set forth in the Release.
In the event of any dispute under this Section 5.1 and to the extent determined
by the Board to be job-related and consistent with business necessity, Koblish
shall submit to a physical examination by a licensed physician experienced in
disability examination selected by the Board and approved by Koblish, such
approval not to be unreasonably withheld.
5.2 Death. The Employment Term shall terminate on the date of
Koblish's death. In such event, the Company shall pay to Koblish's executors,
legal representatives or administrators, as applicable, an amount equal to the
installment of his Base Salary set forth in Section 1.4 hereof or Increased Base
Salary, as applicable, for the full month in which he dies, and all unreimbursed
expenses and unused vacation time. If Koblish dies while an employee of the
Company, the
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designated beneficiary, or if no such beneficiary has been designated, Koblish's
estate, shall be entitled to receive (i) the proceeds of the life insurance
policy described in Section 1.7 and (ii) a payment from the Company of an amount
equal to the benefits calculated as of the date of death pursuant to Section
5.4(a)(ii), on the basis that the death of Koblish is equivalent to termination
without cause. Otherwise, the Company shall have no further liability or
obligation under this Agreement to his executors, legal representatives,
administrators, heirs or assigns or any other person claiming under or through
him.
5.3. Cause. The Company may terminate the Employment Term at any time
for "Cause" upon 30 days' written notice to Koblish, in which event all payments
under this Agreement shall cease, except for (i) Base Salary, or Increased Base
Salary, as applicable, to the extent already earned and a payment equal to any
unreimbursed expenses and unused vacation, which shall be paid in a single lump
sum on the day the Employment Term terminates, and (ii) any other benefits in
accordance with the terms of any applicable Plans and Incentive Programs of the
Company. For purposes of this Agreement, Koblish's employment may be terminated
for "cause" if (i) Koblish is convicted of a felony, (ii) in the reasonable
determination of the Board, Koblish has committed an intentional act of fraud,
embezzlement, or theft in connection with Koblish's duties in the course of his
employment with the Company, or engaged in gross negligence in the course of his
employment with the Company, (iii) Koblish intentionally breached his
obligations under this Agreement, including inattention to or neglect of duties
and shall not have remedied such breach within 30 days after receiving written
notice from the Board specifying the details thereof, provided, however, that in
any case under this clause (iii), the act or failure to act by Koblish is
materially harmful to the business of the Company, and (iv) the failure by
Koblish to follow the lawful directives of the Company's Chairman or its Board
of Directors, provided that (other than in the case of those actions or
omissions set forth in clause (i) and (ii) above) Koblish shall have been given
reasonably detailed notice that such an event constituting cause for termination
has occurred and shall have been given at least 30 days opportunity to take
remedial action but shall have failed or refused to do so. For purposes of this
Agreement, an act or omission on the part of Koblish shall be deemed
"intentional" or gross negligence only if it was done by Koblish in bad faith,
not merely an error in judgment, and without reasonable belief that the act or
omission was in the best interest of the Company. In the event of a dispute
concerning application of the words intentional or gross negligence as used in
this Section 5.3, no claim by the Company that Cause exists shall be given
effect unless the Company establishes to the Board by clear and convincing
evidence that Cause exists.
5.4. Termination Without Cause.
(a) The Company may terminate Koblish without cause, at any
time, from the position in which he is employed hereunder (on which date the
Employment Term shall be deemed to have ended) upon not less than 30 days' prior
written notice to Koblish; provided, however, that, commencing on the date of
such notice, Koblish shall be under no obligation to render any additional
services to the Company and shall be allowed to seek other employment. Upon such
termination, except as provided in Section 5.4(b) below, Koblish shall be
entitled to receive (i) Base Salary or Increased Base Salary, as applicable, to
the extent already earned and for the remaining term of his
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employment under this agreement, and a payment equal to any unused vacation,
unreimbursed expenses, which shall be paid in a single lump sum on the day the
Employment Term ends, and (ii) any other benefits in accordance with the terms
of any Plans and Incentive Programs of the Company.
(b) Notwithstanding the foregoing, upon such termination, the
Company shall prepare and execute the Release and present the Release to Koblish
for execution. Upon execution of the Release by Koblish, he shall be entitled to
receive, commencing on the eighth day following execution of the Release, in
lieu of the Company obligations described in Subsection (a) of this Section,
which Koblish agrees to waive, (i) continuation for twenty-four (24) months of
Koblish's current Base Salary, or Increased Base Salary, as applicable, in
accordance with Section 1.4 (without regard to Koblish's removal), (ii) any
other amounts earned, vested, or owing but not yet paid under Section 1.1
through 1.8 above, (iii) a pro-rata portion of any Incentive Programs to the
extent that such amount would have been earned in accordance with the terms of
such Incentive Programs specified in Section 1.8 above for the then current
fiscal year of the Company, without regard to a requirement, if any, set forth
in Incentive Programs of employment with the Company at date of payment under
such Incentive Programs (iv) a payment equal to any unused vacation and
unreimbursed expenses, (v) any other benefits in accordance with the terms of
any Plans and Incentive Programs of the Company without regard to a requirement,
if any, set forth in Plans or Incentive Programs of employment with the Company
at date of payment under such Plans or Incentive Programs, and (vi) to the
extent not provided in (v) directly above, health insurance for Koblish and
eligible family members and disability insurance for Koblish, for a period of
twenty-four (24) months from the date of termination pursuant to Section 5.4(a),
each with coverage and at a cost identical to that provided Koblish immediately
prior to such termination. Upon Termination Without Cause, Company shall have no
liability or obligation to Koblish except as set forth in Section 5.4 and in the
Release.
5.5 Constructive Termination Without Cause.
(a) Resignation by Koblish for good reason ("Constructive
Termination without Cause") shall mean a termination of Koblish's employment at
his initiative following the occurrence, without Koblish's written consent, of
(i) a material diminution in Koblish's duties, responsibilities, authority or
status, or a failure of Koblish to have a position reporting directly to the
Board, (ii) a reduction in any amount of Koblish's Base Salary, or Increased
Base Salary, as applicable, (iii) the assignment to Koblish of duties or
responsibilities which are materially inconsistent with the duties,
responsibilities, authority, or status of his position as defined in Section 1.2
above or which materially impair Koblish's ability to function in his then
current position, or (iv) a failure of the Company to comply with any of the
material terms of this Agreement, provided that (other than in the case of those
actions or omissions set forth in clause (ii) above) the Company shall have been
given reasonably detailed notice that such an event constituting cause for
termination has occurred and shall have been given at least 30 days opportunity
to take remedial action but shall have failed or refused to do so.
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(b) In the event of a Constructive Termination Without Cause,
the Company shall prepare and execute the Release and present the Release to
Koblish for execution. Upon execution of the Release by Koblish, he shall be
entitled to receive all amounts and benefits to the same extent and at the same
time as specified in Section 5.4(b). In the event Koblish refuses to execute the
Release (or revokes the Release), he shall receive only the amounts and benefits
to the same extent and at the same time as specified in Section 5.4(a).
(c) Prior to resigning under this Section, Koblish shall give
written notice to the Board and offer a 30-day period for the Company to cure.
If no cure has been effected by the end of the applicable cure period, Koblish
may resign immediately. The Company may not terminate Koblish pursuant to
Section 5.3 or 5.4 subsequent to the date of the written notice provided
pursuant to this Section 5.5(c).
5.6. Voluntary Termination. Koblish may voluntarily terminate the
Employment Term upon 30 days' prior written notice for any reason. In such
event, Koblish shall be entitled only to (i) Base Salary, or Increased Base
Salary, as applicable, to the extent already earned and a payment equal to any
unused vacation, and unreimbursed expense which shall be paid in a single lump
sum on the day the Employment Term terminates, and (ii) any other benefits in
accordance with the terms of any Plans and Incentive Programs of the Company. A
voluntary termination under this Section 5.6 shall not be deemed a breach of
this Agreement.
5.7 Termination at End of Employment Term. Notwithstanding Section
5.6, if Koblish's employment with the Company is terminated or not renewed at
the end of an Employment Term by the Company, the Company shall prepare and
execute the Release and present the Release to Koblish for execution. Upon
execution of the Release by Koblish, the Company shall pay to Koblish as
severance compensation the amounts described in Section 5.4(b), but with
Koblish's Base Salary, or Increased Base Salary, as applicable, to continue
under Section 5.4(b)(i) for one year after termination of employment. The
payments under this Section 5.7 shall be made in lieu of the payments described
in Section 5.6, which Koblish hereby agrees to waive. In the event Koblish
refuses to execute the Release (or revokes the Release), Koblish shall receive
only amounts and benefits specified in Section 5.6.
5.8 Mitigation. Executive shall be required to mitigate the amount of
any payment or benefit provided for in Sections 5.4(b), 5.5(b) and 5.7, by
seeking other employment or otherwise there shall be offset against amounts due
Executive under this Agreement on account of any remuneration attributable to
any subsequent employment that he may obtain. The Company's obligations to make
payments under this Agreement and otherwise to perform its obligations hereunder
shall not be affected by any circumstances, including, without limitation, any
set-off, counterclaim, recoupment, defense or other right which the Company may
have against Executive or others.
6.0 Change of Control
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(a) Notwithstanding anything in this Agreement to the contrary,
if it is determined that any amount or benefit to be paid or provided under this
Agreement or otherwise pursuant to or by reason of any other agreement, policy,
plan, program or arrangement by the Company to or for the benefit of Koblish
would be an "excess parachute payment," within the meaning of section 280G of
the Code, or any successor provision thereof, then the payments and benefits to
be paid or provided under this Agreement shall be reduced to the minimum extent
necessary (but in no event no less than zero) so that no portion of any such
payment or benefit, as so reduced, constitutes an excess parachute payment as
therein defined. The fact that Koblish's right to payments or benefits may be
reduced by reason of the limitations contained in this Section 6, shall not of
itself limit or otherwise affect any other rights of Koblish other than pursuant
to this Agreement.
(b) All determinations to be made under this Section 6 shall
be made by the Company's independent public accounting firm as in effect
immediately prior to the Change of Control (the "Accounting Firm"), which firm
shall provide its determinations and any supporting calculations to the Company
and Chief Executive Officer within 10 business days of the event that gives rise
to the "excess parachute payment." Any such determination by the Accounting Firm
shall be binding upon the Company and Koblish. Koblish shall in his sole
discretion determine which and how much of the payments or benefits shall be
eliminated or reduced consistent with the requirements of this Section 6. Within
five days after Koblish's determination, the Company shall pay (or cause to be
paid) or distribute (or cause to be distributed) to or for the benefit of
Koblish such amounts as are then due to Koblish under this Agreement. In the
event that Koblish fails to make such designation within 20 business days of his
notice that such payments or benefits must be eliminated or reduced to comply
with this Section 6 of the Agreement, the Company may effect such reduction in
any manner it deems appropriate
(i) Within two years after the event that gives rise to
the "excess parachute payment," the Accounting Firm shall review the
determination made by it pursuant to the preceding paragraph. If the Accounting
Firm determines that any payments will have been made by the Company which
should not have been made ("Overpayment"), consistent with the calculations
required to be made hereunder, any such Overpayment shall be treated for all
purposes as a loan to Koblish which Koblish shall repay to the Company, together
with interest at the applicable Federal rate provided for in Section 7872(f)(2)
of the Code (the "Federal Rate"). In the event that the Accounting Firm
determines that additional payments which have not been made by the Company
could have been made ("Underpayment"), consistent with the calculations required
to be made hereunder, any such Underpayment shall be promptly paid by the
Company to or for the benefit of Koblish, together with interest at the Federal
Rate.
(ii) All of the fees and expenses of the Accounting Firm in
performing the determinations referred to in subsections (b) and (b)(i) above
shall be borne solely by the Company.
(iii) The limitations of this Section 6(b) shall only apply
if payments under this Agreement are subject to Section 280G at the time of the
Change of Control. If payments under this Agreement would not be subject to
Section 280G if the shareholders of the Company approved
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the payments, the Company shall use its best efforts to procure the necessary
shareholder approval of the payments in a timely manner. If the shareholders
approve the payments so that Section 280G does not apply, the Company shall make
payments under this Agreement without regard to this Section 6(b).
(c) A "Change of Control" shall be deemed to have occurred if
the event set forth in any one of the following paragraphs shall have occurred:
(i) Any "person" (as such term is used in Sections 13(d)
and 14(d) of the Exchange Act other than a person who is a shareholder of the
Company as of the effective date of this Agreement) is or becomes a "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing more than 50% of the
combined voting power of the then outstanding securities of the Company, as
determined by the Board of Directors of the Company; or
(ii) The shareholders of the Company approve (or, if
shareholder approval is not required, the Board approves) an agreement providing
for (i) the merger, consolidation or other form of business combination of the
Company, or any direct or indirect subsidiary of the Company, with another
corporation and the shareholders of the Company, immediately prior to such
transaction, will not beneficially own, immediately after such transaction,
shares of the Company or the surviving entity or any parent thereof, entitling
the shareholders of the Company to vote more than 50% of all shares of the
Company, or the surviving entity or any parent thereof which would be entitled
in the election of directors (without consideration of the rights of any class
of stock to elect directors by a separate class vote), (ii) the sale or other
disposition of all or substantially all of the assets of the Company, or (iii) a
liquidation or dissolution of the Company; or
(iii) Individuals who are Continuing Directors cease to
constitute a majority of the members of the Board ("Continuing Directors" for
this purpose being the members of the Board on the date of adoption of this
Agreement, provided that any person becoming a member of the Board subsequent to
such date whose election or nomination for election was supported by two-thirds
of the Directors who then comprised the Continuing Directors shall be considered
to be a Continuing Director).
7.0 Survivorship. The respective rights and obligations of the parties
hereunder shall survive any termination of Koblish's employment and the
Employment Term to the extent necessary to the intended preservation of such
rights and obligations.
8.0 Settlement of Disputes; Arbitration; Expenses. All claims by
Koblish for benefits under this Agreement shall be directed to and determined by
the Board and shall be in writing. Any denial by the Board of a claim for
benefits under this Agreement shall be delivered to Koblish in writing and shall
set forth the specific reasons for the denial and the specific provisions of
this Agreement relied upon. The Board shall afford a reasonable opportunity for
a review of the decision denying a claim and shall further allow to appeal to
the Board a decision of the Board within sixty
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(60) days after notification by the Board that Koblish's claim has been denied.
Any further dispute under the provisions of this Agreement (other than a dispute
in which the primary relief sought is an equitable remedy such as an injunction)
shall be settled by arbitration in the City of Philadelphia, Pennsylvania in
accordance with the National Rules for the Resolution of Employment Disputes
then in effect of the American Arbitration Association, before a panel of three
arbitrators, two of whom shall be selected by the Company and Koblish,
respectively, and the third of whom shall be selected by the other two
arbitrators. Any award entered by the arbitrators shall be final, binding and
nonappealable and judgment may be entered thereon by either party in accordance
with applicable law in any court of competent jurisdiction. This arbitration
provision shall be specifically enforceable. The arbitrators shall have no
authority to modify any provision of this Agreement or to award a remedy for a
dispute involving this Agreement other than a benefit specifically provided
under or by virtue of the Agreement. The Company shall be responsible for all of
the fees of the American Arbitration Association and the arbitrators and any
expenses relating to the conduct of the arbitration as well as Koblish's
reasonable legal fees and expenses. The arbitrators shall, in any other event,
determine who shall pay Koblish's legal fees and expenses.
9.0 No Attachment. Except as required by law, no right to receive
payments under this Agreement shall be subject to anticipation, commutation,
alienation, sale, assignment, encumbrance, charge, pledge, or hypothecation or
to execution, attachment, levy, or similar process or assignment by operation of
law, and any attempt, voluntary or involuntary, to effect any such action shall
be null, void and of no effect; provided, however, that nothing in this Section
shall preclude the assumption of such rights by executors, administrators or
other legal representatives of Koblish or his estate and their assigning any
rights hereunder to the person or persons entitled thereto.
10.0 Source of Payment. All payments provided for under this Agreement
shall be paid in cash from the general funds of the Company. The Company shall
not be required to establish a special or separate fund or other segregation of
assets to assure such payments, and, if the Company shall make any investments
to aid it in meeting its obligations hereunder, Koblish shall have no right,
title or interest whatever in or to any such investments except as may otherwise
be expressly provided in a separate written instrument relating to such
investments. Nothing contained in this Agreement, and no action taken pursuant
to its provisions, shall create or be construed to create a trust of any kind,
or a fiduciary relationship, between the Company and Koblish or any other
person. To the extent that any person acquires a right to receive payments from
the Company hereunder, such right, without prejudice to rights which employees
may have, shall be no greater than the right of an unsecured creditor of the
Company.
11.0 Notices. All notices and other communications required or
permitted hereunder or necessary or convenient in connection herewith shall be
in writing and shall be deemed to have been given when hand delivered or mailed
by registered or certified mail, as follows (provided that notice of change of
address shall be deemed given only when received):
If to the Company, to:
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Orthovita, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Att: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chairman
If to Koblish, to:
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or to such other names or addresses as the Company or Koblish, as the case may
be, shall designate by notice to each other person entitled to receive notices
in the manner specified in this Section.
12.0 Contents of Agreement; Amendment and Assignment.
(a) This Agreement supersedes all prior agreements, including
the Payment in the Event of Your Termination of Employment on a Change of
Control of Orthovita, Inc. Agreement dated April 23, 2001 and the
Confidentiality and Non-Disclosure Agreement dated December 16, 1998, and sets
forth the entire understanding between the parties hereto with respect to the
employment of Koblish by the Company and cannot be changed, modified, extended
or terminated except as provided herein or upon written amendment approved by
the Company and executed on its behalf by a duly authorized officer and by
Koblish. This Agreement does not amend or modify the provisions of any Plans or
Incentive Programs in which Koblish participates or is eligible to participate
except as set forth in Sections 1.6 and 5.4(b)(iii) and (v) hereof.
(b) All of the terms and provisions of this Agreement shall
be binding upon and inure to the benefit of and be enforceable by the respective
heirs, executors, administrators, legal representatives, successors and assigns
of the parties hereto, except that the duties and responsibilities of Koblish
hereunder are of a personal nature and shall not be assignable or delegatable in
whole or in part by Koblish. The Company shall require any successor (whether
direct or indirect, by purchase, merger, consolidation, reorganization or
otherwise) to all or substantially all of the business or assets of the Company,
by agreement in form and substance satisfactory to Koblish, expressly to assume
and agree to perform this Agreement in the same manner and to the extent the
Company would be required to perform if no such succession had taken place.
13.0 Severability. If any provision of this Agreement or
application thereof to anyone or under any circumstances is adjudicated to be
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect any other provision or application of this
Agreement which can be given effect without the invalid or unenforceable
provision or application and shall not invalidate or render unenforceable such
provision or application in any other jurisdiction. If any provision is held
void, invalid or unenforceable with respect to particular circumstances, it
shall
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nevertheless remain in full force and effect in all other circumstances.
14.0 Remedies Cumulative; No Waiver. No remedy conferred upon a party
by this Agreement is intended to be exclusive of any other remedy, and each and
every such remedy shall be cumulative and shall be in addition to any other
remedy given hereunder or now or hereafter existing at law or in equity. No
delay or omission by a party in exercising any right, remedy or power hereunder
or existing at law or in equity shall be construed as a waiver thereof, and any
such right, remedy or power may be exercised by such party from time to time and
as often as may be deemed expedient or necessary by such party in its sole
discretion.
15.0 Beneficiaries/References. Koblish shall be entitled, to the
extent permitted under any applicable law, to select and change a beneficiary or
beneficiaries to receive any compensation or benefit payable hereunder following
Koblish's death by giving the Company written notice thereof. In the event of
Koblish's death or a judicial determination of his incompetence, references in
this Agreement to Koblish shall be deemed, where appropriate, to refer to his
beneficiary, estate or other legal representative.
16.0 Miscellaneous. All section headings used in this Agreement are
for convenience only. This Agreement may be executed in counterparts, each of
which is an original. It shall not be necessary in making proof of this
Agreement or any counterpart hereof to produce or account for any of the other
counterparts.
17.0 Withholding. The Company may withhold from any payments under
this Agreement all federal, state and local taxes as the Company is required to
withhold pursuant to any law or governmental rule or regulation. Koblish shall
bear all expense of, and be solely responsible for, all federal, state and local
taxes due with respect to any payment received hereunder except as otherwise
provided with respect to his restricted stock award.
18.0 Governing Law. This Agreement shall be governed by and
interpreted under the laws of the Commonwealth of Pennsylvania without giving
effect to any conflict of laws provisions.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound,
have executed this Agreement as of the date first above written.
ORTHOVITA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------ ---------------------------
Authorized Signature ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ President and CEO
Chairman of the
Board of Directors
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Annex 1
Separation Agreement and General Release
This Separation Agreement and General Release (Agreement) is made by and between
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (EMPLOYEE) and ORTHOVITA, Inc. (ORTHOVITA) effective this ____
day of _______, 200_.
EMPLOYEE and ORTHOVITA agree to the following terms in full and final settlement
of all matters relating to or arising out of EMPLOYEE's employment and
separation from employment with ORTHOVITA:
1. EMPLOYEE's employment with ORTHOVITA shall end as of __________, 200_.
ORTHOVITA shall have no obligation, contractual or otherwise, to hire,
re-hire or re-employ him in the future.
2. It is agreed that for the promises made herein, EMPLOYEE will receive
the following considerations:
a. Continue EMPLOYEE's semi-monthly salary of $___________, minus
all payroll deductions required by law or authorized by EMPLOYEE
through the ____ day of __________, 200_.
b. Orthovita, Inc will continue your medical benefits thru _______,
200_. After this period, EMPLOYEE may, upon notice to ORTHOVITA,
elect to continue medical coverage under the provisions of COBRA
for an additional 18 months by paying the applicable premium.
c. Except as set forth herein, it is expressly agreed and
understood that ORTHOVITA does not have, and will not have, any
obligation to provide EMPLOYEE at any time in the future with any
payments, benefits or considerations other than those recited in
paragraphs 2(a) through 2(b) above, other than any vested benefits
to which EMPLOYEE may be entitled under the terms of ORTHOVITA's
401(k) Plan.
3. Except for the rights created by this agreement, EMPLOYEE and his
successors, assigns, heirs and legal representatives, hereby releases,
acquits and forever discharges ORTHOVITA and its representatives,
parent and subsidiary corporations (as the case may be), predecessors,
successors, affiliates, officers, agents, assigns, employees and
attorneys, releasing them from any and all claims, rights, expenses,
debts, demands, costs, contracts, liabilities, obligations, actions,
and causes of action of every nature, known or unknown, whether in law
or in equity, which he had, now has, or may have which are in any way
connected with, or arise out of, any cause whatsoever, from the
beginning of time to the date of this Agreement, including, but not
limited to, any and all matters relating to EMPLOYEE's employment with
ORTHOVITA. EMPLOYEE specifically releases and discharges, but not by
way of limitation, any obligation, claim, demand or cause of action of
based on, or arising out of, any alleged wrongful termination, breach
employment contract, breach of implied covenant
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of good faith and fair dealing, defamation, intentional or negligent
infliction of emotional distress. EMPLOYEE also releases and
discharges any and all claims, rights and/or remedies under Title VII
of the Civil Rights Act of 1964, as amended, 42 ▇.▇.▇ (▇)▇▇▇▇▇ et seq,
the Employment Retirement Income Security Act of 1974 as amended, 29
U.S.C. (S)1001 et seq, the Pennsylvania Human Relations Act, as
amended, 43 P.S.951 et seq, the Age Discrimination in Employment Act
of 1967 as amended, 29 U.S.C. (S)621 et seq, the American with
Disabilities Act, 42 U.S.C. (S)12101 et seq, the Family and Medical
Leave Act, 29 U.S.C. (S)2601 et seq, any other federal, state or local
statute or regulation which relates to his employment or its
termination as well as all claims for counsel fees or costs.
4. EMPLOYEE agrees not to disclose, or discuss with, any person (other
than his spouse, attorney and tax or other financial advisor) any of
the terms and conditions of this Agreement, except as may be required
by law or regulations, and except as may be required to effectuate the
terms of this Agreement. Disclosure of any terms of this Agreement
will constitute a material breach of the Agreement.
5. EMPLOYEE understands and agrees that in the course of employment with
ORTHOVITA, he may have acquired confidential information and Trade
Secrets concerning Orthovita business, its future plans and its
methods of doing business, including, without limitation, proprietary
information about its products, services, product development,
customers, technology, financial circumstances, marketing, pricing,
costs, compensation and other matters (hereinafter collectively called
"Trade Secrets"). EMPLOYEE may not reveal or disclose, sell, use,
lecture upon, or publish any such Trade Secrets, or authorize anyone
else to do so at any time subsequent to his employment with ORTHOVITA.
All ORTHOVITA documents, files, lists and other information of a
business nature, whether in hard copy or machine readable form, will
be returned to ORTHOVITA by EMPLOYEE forthwith, and any future use of
same by EMPLOYEE is prohibited.
6. Neither the negotiation, undertaking or signing of this Separation
Agreement and General Release constitutes or operates as an
acknowledgment of admission that ORTHOVITA, or any person acting on
behalf of ORTHOVITA, has violated or failed to comply with any
provisions of federal or state constitution, statute, law, regulation,
municipal ordinance, or principle of common law. This agreement is
made voluntarily to provide an amicable conclusion to his employment
relationship with Orthovita.
7. This Agreement is the only and complete agreement between EMPLOYEE and
ORTHOVITA on or in any way relating to the subject matter hereof. No
statements, promises, or representations have been made by either
party to the other and no consideration has been or is offered,
promised or expected other than that already received or described in
this Agreement.
8. EMPLOYEE represents that he has been advised by ORTHOVITA, through
this document, that he should discuss this Agreement with an attorney
of his own choosing at his own cost, and that he has carefully read
and fully understands all its terms and effects. EMPLOYEE further
represents that his decision to execute this Agreement is entirely
voluntary and
15
knowing and without any pressure, coercion or undue influence by
ORTHOVITA and in exchange for the consideration decided herein, which
he acknowledges is adequate and satisfactory to him and beyond that to
which he would otherwise be entitled.
9. This Agreement shall be governed by and interpreted and construed in
accordance with the laws of the Commonwealth of Pennsylvania. If any
provisions of this Agreement shall, for any reason, be adjudged by any
court of competent jurisdiction to be invalid or unenforceable, in
whole or in part, such judgment shall not affect, impair or invalidate
the remainder of this agreement. The employee agrees not to speak
negatively of any product or service or officer, director, employee or
former employee of Orthovita with respect to past or future issues.
IN WITNESS WHEREOF, and intended to be legally bound hereby, the parties have
executed the foregoing Separation Agreement and General Release.
Dated: _______________________________ ____________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Witness: _____________________________
ORTHOVITA, Inc.
Dated: _______________________________ By: ________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chairman
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