Term of this Employment Agreement. by NAVIDEA BIOPHARMACEUTICALS, INC.
Company: NAVIDEA BIOPHARMACEUTICALS, INC.
SEC CIK: 810509
SEC Type: EX-10.1
SIC Code: 2835
SIC Industry: IN VITRO & IN VIVO DIAGNOSTIC SUBSTANCES
Date Filed: 2012-06-07
This Employment Agreement ("Employment Agreement") is made and entered into effective as of June 1, 2012, (the "Effective Date"), by and between Navidea Biopharmaceuticals, Inc. a Delaware corporation with a place of business at 425 Metro Place North, Suite 300, Dublin, Ohio 43017-1367 (the "Company" or "Navidea") and Thomas H. Tulip of Hopkinton, MA (the "Employee").
WHEREAS, the Company desires to retain the services of Employee and Employee desires to be employed by the Company during the term of this Employment Agreement and upon the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual agreements herein set forth, the parties hereto agree as follows:
|1.||Duties. From and after the Effective Date, and based upon the terms and conditions set forth herein, the Company agrees to employ the Employee and the Employee agrees to be employed by the Company, as Executive Vice President and Chief Business Officer of the Company and in such equivalent or additional executive level position or positions as shall be assigned to him by the Company's Board of Directors. While serving in such executive level position or positions, the Employee shall report to, be responsible to, and shall take direction from the Chief Executive Officer of the Company. During the Term of this Employment Agreement (as defined in Section 2 below), the Employee agrees to devote substantially all of his working time to the position he holds with the Company and to faithfully, industriously, and to the best of his ability, experience and talent, perform the duties which are assigned to him. The Employee shall observe and abide by the reasonable corporate policies and decisions of the Company in all business matters.|
|The Employee represents and warrants to the Company that Exhibit A attached hereto sets forth a true and complete list of (a) all offices, directorships and other positions held by the Employee in corporations and firms other than the Company and its subsidiaries, and (b) any investment or ownership interest in any corporation or firm other than the Company beneficially owned by the Employee (excluding investments in life insurance policies, bank deposits, publicly traded securities that are less than five percent (5%) of their class and real estate). The Employee will promptly notify the Board of Directors of the Company of any additional positions undertaken or investments made by the Employee during the Term of this Employment Agreement if they are of a type which, if they had existed on the date hereof, should have been listed on Exhibit A hereto. As long as the Employee's other positions or investments in other firms do not create a conflict of interest, violate the Employee's obligations under Section 7 below or cause the Employee to neglect his duties hereunder, such activities and positions shall not be deemed to be a breach of this Employment Agreement.|
|2.||Term of this Employment Agreement. Subject to Sections 4 and 5 hereof, the Term of this Employment Agreement shall be for a period commencing on the Effective Date and terminating twenty-four (24) months from the Effective Date.|
|3.||Compensation. During the Term of this Employment Agreement, the Company shall pay, and the Employee agrees to accept as full consideration for the services to be rendered by the Employee hereunder, compensation consisting of the following:|
|A.||Salary. Beginning on the first day of the Term of this Employment Agreement, the Company shall pay the Employee a salary of Three Hundred Twenty-Five Thousand Dollars ($325,000) per year, payable in semi-monthly or monthly installments as requested by the Employee.|
|B.||Bonus. The Compensation, Nominating and Governance Committee (the "Committee") of the Board of Directors will, on an annual basis, review the performance of the Company and of the Employee and will pay such bonus as it deems appropriate, in its discretion, to the Employee based upon such review. Such review and bonus shall be consistent with any bonus plan adopted by the Committee, which covers the executive officers and employees of the Company generally. For the calendar year ending December 31, 2012, the Committee has determined that the maximum bonus payable to the Employee will be One Hundred Thirteen Thousand Seven Hundred Fifty Dollars ($113,750). The Employee shall be eligible for the payment of the appropriate portion of the bonus for the calendar year ending December 31, 2012 in the event the employment of the Employee is terminated after December 31, 2012 for any reason other than a termination "for cause" as such term is defined below. Any bonus payment to Employee for the calendar year ending December 31, 2012 will be consistent with the guidelines established by the Committee for other officer employees of the Company for the payment of any bonus to officer employees of the Company. Any bonus earned in any calendar year will be payable in the first calendar quarter of the following calendar year .|
|C.||Benefits. During the Term of this Employment Agreement, the Employee will receive such employee benefits as are generally available to all employees of the Company.|
|D.||Stock Options. The Committee of the Board of Directors may, from time to time, grant stock options, restricted stock purchase opportunities and such other forms of equity-based incentive compensation as it deems appropriate, in its discretion, to the Employee under the Company's Third Amended and Restated 2002 Stock Incentive Plan (the "Stock Plan"). The terms of the relevant award agreements shall govern the rights of the Employee and the Company thereunder in the event of any conflict between such agreement and this Employment Agreement.|
|E.||Vacation. The Employee shall be entitled to twenty (20) days of vacation during each calendar year during the Term of this Employment Agreement.|
|F.||Expenses. The Company shall reimburse the Employee for all reasonable out-of-pocket expenses incurred by him in the performance of his duties hereunder, including expenses for travel, entertainment and similar items, promptly after the presentation by the Employee, from time-to-time, of an itemized account of such expenses.|
|G.||Clawback Policy. The Company's obligation to pay any bonus or stock-based incentive compensation under paragraphs B. or D. of this Section 3, and the Employee's right to receive or retain such compensation, shall be subject to any policy adopted by the Board of Directors or its Compensation, Nominating and Governance Committee (or any successor committee of the Board of Directors with authority over executive compensation) pursuant to the "clawback" provisions of Section 304 of the Sarbanes-Oxley Act of 2002, Section 10D of the Securities Exchange Act of 1934, or regulations promulgated thereunder, or pursuant to any rule of any national securities exchange on which the equity securities of the Company are listed implementing Section 10D of the Securities Exchange Act of 1934, or regulations promulgated thereunder.|
|A.||For Cause. The Company may terminate the employment of the Employee prior to the end of the Term of this Employment Agreement "for cause." Termination "for cause" shall be defined as a termination by the Company of the employment of the Employee occasioned by:|
|i.||the failure by the Employee to cure a willful breach of a material duty imposed on the Employee under this Employment Agreement or any other written agreement between Employee and the Company within 15 days after written notice thereof by the Company;|
|ii.||the continuation by the Employee after written notice by the Company of a willful and continued neglect of a duty imposed on the Employee under this Employment Agreement;|
|iii.||acts by Employee of fraud, embezzlement, theft or other material dishonesty directed against the Company;|
|iv.||the Employee is formally charged with a felony (other than a traffic offense), or a crime involving moral turpitude, that in the reasonable good faith judgment of the Board of Directors, results in material damage to the Company or its reputation, or would materially interfere with the performance of Employee's obligations under this Employment Agreement; or|
|v.||any condition which either results from the Employee's substantial dependence, as reasonably determined in good faith by the Board of Directors, on alcohol, or on any narcotic drug or other controlled or illegal substance.|
In the event of termination by the Company "for cause," all salary, benefits and other payments shall cease at the time of termination, and the Company shall have no further obligations to the Employee.
|B.||Resignation. If the Employee resigns for any reason, all salary, benefits and other payments (except as otherwise provided in paragraph G of this Section 4) shall cease at the time such resignation becomes effective. At the time of any such resignation, the Company shall pay the Employee the value of any accrued but unused vacation time, and the amount of all accrued but previously unpaid base salary through the date of such termination. The Company shall promptly reimburse the Employee for the amount of any expenses incurred prior to such termination by the Employee as required under paragraph F of Section 3 above.|
|C.||Disability, Death. The Company may terminate the employment of the Employee prior to the end of the Term of this Employment Agreement if the Employee has been unable to perform his duties hereunder or a similar job for a continuous period of six (6) months due to a physical or mental condition that, in the opinion of a licensed physician, will be of indefinite duration or is without a reasonable probability of recovery for a period of at least six (6) months. The Employee agrees to submit to an examination by a licensed physician of his choice in order to obtain such opinion, at the request of the Company, made after the Employee has been absent from his place of employment for at least six (6) months. Any requested examination shall be paid for by the Company. However, this provision does not abrogate either the Company's or the Employee's rights and obligations pursuant to the Family and Medical Leave Act of 1993, and a termination of employment under this paragraph C shall not be deemed to be a termination for cause.|
If during the Term of this Employment Agreement, the Employee dies or his employment is terminated because of his disability, all salary, benefits and other payments shall cease at the time of death or disability, provided, however, that the Company shall provide to Employee or his