Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the “Agreement”) is made and entered into as of the 5th day of June 2017, by and between Recro Pharma, Inc., a Pennsylvania corporation (the “Company”), andRyan D. Lake, an individual (the “Executive”).
BACKGROUND
WHEREAS, the Company desires to employ the Executive, and the Executive desires to accept such employment, subject to the terms and further conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:
1.Employment and Duties. From and after June 5, 2017 (the “Effective Date”), the Company shall employ the Executive as Senior Vice President of Finance and Chief Accounting Officer. In such capacity, the Executive shall perform all such duties as are assigned to him consistent with his titled position by the Company’s Chief Financial Officer (the “CFO”) and/or Board of Directors of the Company (the “Board”), and shall use his reasonable best efforts to promote the interests of the Company. Nothing contained herein shall preclude the Executive from managing personal investments, participating in charitable, community, educational and professional activities, or, with the prior written consent of the Company (which shall not be unreasonably withheld), serving on the board of directors (or comparable governing body), including any board committees, of for-profit businesses that do not compete with the Company, provided that such activities do not materially interfere with the performance of his duties for the Company.
2.Term. The term of the Executive’s employment hereunder shall commence as of the Effective Date and shall continue for a period of one (1) year. From and after the initial term, this Agreement shall automatically renew for additional one (1) year periods, unless and until either party gives the other no less than thirty (30) days’ prior written notice of his/its intent not to renew.
3.Compensation. From and after June 1, 2017, the Company shall pay the Executive in accordance with its normal bi-weekly payroll practices an annual salary at the initial rate of Two-Hundred and Seventy Thousand Dollars ($270,000) per year (the “Base Salary”). The Executive’s Base Salary shall be reviewed not less often than annually and may be increased from time to time in the sole discretion of the Company. The Base Salary, as in effect from time to time, may not be decreased without the prior written consent of the Executive, except as part of an across the board decrease in which the percentage decrease in the Executive’s base salary is not greater than the smallest percentage decrease of any other senior executive officer.
4.Other Benefits.
(a)Bonuses.
(i) The Executive will be entitled to receive a signing bonus in the amount of Sixty-Five Thousand Dollars ($65,000) payable in a lump sum on the first payroll date after the Effective Date, which payment shall be subject to applicable taxes and withholdings.
(ii) The Executive will qualify to participate in the Company’s incentive bonus program. The Executive’s target bonus amount (the “Target Bonus”), tied to set performance goals and measures, is 35% of the Executive’s Base Salary; provided, however, that the Executive’s annual bonus for fiscal year 2017 will be pro-rated to reflect the time period from the Effective Date through the end of the fiscal year. Notwithstanding the foregoing, the Company reserves the right to change or terminate any bonus program at any time in the Board’s sole discretion.
(b)Benefits Plans. The Executive shall be entitled to participate in all health insurance, savings and retirement, and other benefit plans, if any, that are from time to time applicable to other employees of the Company.
(c)Vacation and Personal Days. The Executive shall be entitled to five (5) weeks of paid vacation time per year and three (3) paid personal days per year, in accordance with the plans, practices, policies, and programs agreed to by Company, which shall be pro-rated for 2017 from the Effective Date through the end of the fiscal year.
(d)Expense Reimbursement. The Executive shall be entitled to receive reimbursement for all reasonable employment-related expenses incurred by the Executive upon the receipt by the Company of an accounting in accordance with practices, policies and procedures applicable to other employees of the Company.
(e)Equity Grant.
(i) On the Effective Date, and subject to approval by the Compensation Committee of the Board (the “Compensation Committee”), the Executive will receive an inducement grant in the form of an option on 65,000 shares of the Company’s common stock (the “Option”) which shall not be granted pursuant to the Recro Pharma, Inc. Amended and Restated Equity Incentive Plan (the “Equity Incentive Plan”). One forty-eighth of the Option shall vest on each monthly anniversary of the Effective Date, provided that the Executive is still employed on such date. The term of the Option shall be ten years.
(ii) On the Effective Date, and subject to approval by the Compensation Committee, the Executive will receive an inducement grant in the form of 10,000 time-based restricted stock units of the Company’s common stock (the “Time-Based RSUs”), which shallnot be granted pursuant to the Equity Incentive Plan. The Time-Based RSUs shall vest on an annual basis over four years.
(iii) If Executive’s employment is terminated under circumstances described in Section 10(a)(iii) within the period that ends twelve months after a Change of Control (as defined in the Equity Incentive Plan) or in Section 10(a)(v), the Option and the Time-Based RSUs, to the extent not already vested as a result of the Change of Control, shall be vested in full.
(iv) The Executive shall be eligible for a regular annual option grant (with such eligibility determined on the same basis as other senior executives, in the
-2-
discretion of the Compensation Committee) and for other grants under the Equity Incentive Plan, or any other equity or long-term incentive plan adopted by the Company. The terms of any such grants shall be determined in the discretion of the Compensation Committee. All stock options granted to the Executive shall be incentive stock options to the fullest extent permitted by law.
5.Confidential Information.
(a) The Executive agrees at all times during the term of his employment with the Company and thereafter, to hold in strictest confidence, and not to use, except for the benefit of the Company, or to disclose to any person or entity (“Person”) without prior written authorization of the Company, any Confidential Information of the Company. The Executive understands that “Confidential Information” means Inventions (as defined herein) and any other information of the Company and/or its affiliates disclosed or made available to the Executive, whether before or during the term hereof, including but not limited to financial information, technical and non-technical data, services, products, processes, operations, reports, analyses, test results, technology, samples, specifications, protocols, performance standards, formulations, compounds, know-how, methodologies, trade secrets, trade practices, marketing plans and materials, strategies, forecasts, research, concepts, ideas, and names, addresses and any other characteristics or identifying information of the Company’s existing or potential investors, licensors, licensees, suppliers, customers or employees. Confidential Information shall not include any information the Executive can establish by competent proof is or becomes public knowledge or part of the public domain through no act or omission of the Executive. Notwithstanding the foregoing, the Executive shall be permitted to disclose Confidential Information pursuant to a court order, government order or any other legal requirement of disclosure if no suitable protective order or equivalent remedy is available, provided that the Executive gives the Company written notice of such court order, government order or legal requirement of disclosure immediately upon knowledge thereof and allows the Company a reasonable opportunity to seek to obtain a protective order or other appropriate remedy prior to such disclosure to the extent permitted by law. Further, it shall not be a violation of the Executive’s confidentiality obligations if disclosure of confidential information (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigation a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
(b) The Executive agrees that he shall not, during his employment with Company, improperly use or disclose any proprietary information or trade secrets of any former employer of the Executive or other Person and that the Executive will not bring onto the premises of the Company any unpublished documents or proprietary information belonging to any such former employer or Person unless consented to in writing by such former employer or Person.
(c) The Executive recognizes that the Company has received and in the future will receive from third parties certain confidential or proprietary information subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain limited purposes. The Executive agrees to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any Person, or to use it except as necessary in carrying out his work for the Company consistent with Company’s agreement with such third party.
-3-
6.Inventions.
(a) The Executive agrees that he shall promptly make full written disclosure to Company, shall hold in trust for the sole right and benefit of Company, shall assign and hereby does assign to Company, or its designee, all of the Executive’s right, title, and interest in and to any and all inventions, original works of authorship, developments, concepts, improvements, designs, discoveries, ideas, trademarks or trade secrets, whether or not patentable or registerable under copyright or similar laws, which the Executive may, solely or jointly, conceive or develop or reduce to practice during the period of time the Executive is in the employ of the Company that relate to the Company and/or its products (collectively referred to as “Inventions”). The Executive further acknowledges that all original works of authorship which are made by the Executive (solely or jointly with others) within the scope of and during the period of his employment with the Company and which are protectable by copyright are “works made for hire”, as that term is defined in the United States Copyright Act. The Executive understands and agrees that the decision whether or not to commercialize or market any invention developed by the Executive (solely or jointly with others) is within Company’s sole discretion and for Company’s sole benefit and that no royalty will be due to the Executive as a result of Company’s efforts to commercialize or market any such invention.
(b) The Executive agrees to keep and maintain adequate and current written records of all Inventions made by the Executive (solely or jointly with others) during the term of his employment with Company. The records will be in the form of notes, sketches, drawings, and any other format that may be specified by Company. The records will be available to and remain the sole property of the Company at all times.
(c) If the Company is unable because of the Executive’s mental or physical incapacity or for any other reason to secure his signature on any such document, then the Executive hereby irrevocably designates and appoints the Company and its duly authorized officers and agents as his agent and attorney-in-fact to act for and in the Executive’s behalf and stead to execute and file any such document and to do all other lawfully permitted acts to further the prosecution and issuance of letters patent or copyright registrations thereon with the same legal force and effect as if executed by the Executive.
7.Returning Company Documents. The Executive agrees that, at the time of leaving the employ of the Company, he shall deliver to the Company (and will not keep in his possession, recreate or deliver to anyone else) any and all devices, records, data, notes, reports, proposals, lists, correspondence, materials, equipment, other documents or property, or reproductions of any of the aforementioned items developed by the Executive pursuant to his employment with the Company or otherwise belonging to the Company, its successors or assigns.
8.Nonsolicitation and Noncompetition.
(a) The Executive agrees that during the term of his employment with the Company and for a period of one (1) year immediately following the termination of the Executive’s employment with the Company for any reason whatsoever, whether with or without cause, (i) the Executive shall not, either directly or indirectly, solicit, induce, recruit or encourage any employees of the Company and/or its affiliates to leave their employment, or take away such employees, or attempt to solicit, induce, recruit, encourage or take away employees of the Company and/or its affiliates, either for the Executive or for any other Person and (ii) neither the Executive, nor any firm, organization or corporation in which he is interested, shall, for any reason, directly or indirectly, persuade or attempt to persuade any investor, licensor, licensee, supplier or customer of
-4-
Company, or any potential investor, licensor, licensee, supplier or customer to which the Company and/or its affiliates have made a presentation or with which the Company and/or its affiliates have been having discussions, to not transact business with the Company and/or its affiliates or to transact business with the Executive or any other Person as an alternative to or in addition to the Company and/or its affiliates.
(b) The Executive agrees that during the term of his employment with the Company and for a period of one (1) year immediately following the termination of the Executive’s employment with the Company for any reason whatsoever, whether with or without cause, the Executive shall not, anywhere in the world, engage, either directly or indirectly, whether as a principal or as an agent, officer, director, employee, consultant, shareholder, partner or otherwise, alone or in association with any other Person, in any Competing Business. For purposes of this Agreement, the term “Competing Business” shall mean any Person engaged in the development or commercialization of products that are the same or substantially similar to, or that directly compete with, those products developed, commercialized or actively in development or commercialization by the Company.
(c) In the event that the provisions of subparagraphs (a) or (b) above should be determined by a court or other tribunal of competent jurisdiction to exceed the time, geographic, services or product limitations permitted by the applicable law in a jurisdiction in which enforcement of this Agreement is sought, then such provisions shall be deemed reformed in such jurisdiction to the maximum time, geographic, service or product limitations permitted by such applicable law, and the parties hereby expressly grant any court or competent jurisdiction the authority to effect such reformation.
9.Equitable Relief. The parties confirm that a violation by the Executive of the provisions of this Agreement, including but not limited to, the restrictions in Sections through 5 through 8, will cause the Company irreparable harm that cannot be remedied adequately by monetary damages. The Executive agrees that, in the event of such a violation, the Company shall be entitled to seek temporary, preliminary and permanent injunctive relief to restrain any such violation (without the posting of a bond) and to an equitable accounting of all earnings, profits and other benefits arising from the breach or violation, which rights shall be cumulative and in addition to any other rights or remedies to which the Company may be entitled. The Company shall be entitled to commence action for such relief in any state or federal court in the Commonwealth of Pennsylvania, and the Executive waives to the fullest extent permitted by law any objection that he may now or hereafter have to the jurisdiction and venue of the court in any such proceeding. In any such action, the prevailing party (once all appeals have been exhausted) shall be entitled to recover its or his, as the case may be, reasonable attorney’s fees, out-of-pocket costs and disbursements.
10.Termination of Employment.
(a) Notwithstanding the provisions of Section 2 hereof, the Executive’s employment shall terminate, or be subject to termination, as follows:
(i)Death or Disability. In the event the Executive dies, this Agreement shall terminate. If the Executive becomes entitled to long-term disability benefits under the Company’s then-current disability insurance policy(ies) applicable to the Executive, the Company may, at its option, terminate the Executive’s employment hereunder effective immediately upon written notice. If the Company does not have in effect disability insurance covering the Executive and/or if “disabled” is not defined therein, the Executive shall be deemed disabled hereunder at such time that he suffers a
-5-
physical or mental disability that renders him unable to perform the duties of his employment on substantially a full-time basis, and such period of physical or mental disability continues without substantial interruption for more than one hundred eighty (180) days.
(ii)By Company for Cause. The Company may, at any time, terminate the Executive’s employment hereunder for Cause. For purposes of this Agreement, the Company shall have “Cause” to terminate the Executive’s employment hereunder upon (a) conduct amounting to fraud or dishonesty against the Company; (b) the willful failure by the Executive to substantially perform his duties hereunder or the material violation by the Executive of any of the other provisions of this Agreement, which willful failure or material violation shall continue for thirty (30) days or more following written notice to the Executive; (c) the Executive’s loss of any permit, license, accreditation or other authorization necessary to the Executive’s performance of his duties hereunder, as determined by the Company in its sole discretion; (d) the Executive’s conviction of a felony or a plea by the Executive of nolo contendere to a felony; or (e) other willful conduct by the Executive likely, in the reasonable judgment of the Board, to materially adversely affect the reputation of the Company, which conduct shall continue for five (5) days or more following written notice to the Executive. No act, or omission to act, shall be considered “willful” unless such act or omission is done without a good faith belief by the Executive that such act or omission is in, or not opposed to, the best interests of the Company.
(iii)By Company for Convenience. The Company may terminate the Executive’s employment hereunder at any time, without Cause, upon no less than thirty (30) days prior written notice to Executive.
(iv)By Executive for Convenience. The Executive may terminate his employment hereunder at any time upon no less than thirty (30) days prior written notice to the Company.
(v)By Executive upon a Change of Control. The Executive may terminate his employment hereunder at any time during the twelve (12) months following a Change of Control, if during such twelve-month period the Company and/or its successor (a) materially and adversely changes the status, responsibilities or perquisites of the Executive and such change is not cured within thirty (30) days following written notice by the Executive to the Company, (b) reduces the Executive’s Base Salary other than as permitted by Section 3 or the amount of the Target Bonus, or (c) requires the Executive to be principally based at any office or location more than fifty (50) miles from the Executive’s principal office immediately prior to the Change of Control; provided, however, that the Executive shall not be entitled to resign pursuant to this Section 10(a)(v) unless the Executive notifies the Company in writing of the circumstances outlined in Section 10(a)(v)(a) through 10(a)(v)(c) within thirty (30) days after he first has notice of such circumstances, the Company fails to cure such circumstances within thirty (30) days after receipt of such notice, and the Executives resigns his employment not later than ten (10) days after the end of such cure period. For purposes of this Agreement, a “Change of Control” shall be deemed to have occurred upon the happening of any of the following events: (i) the consummation of a plan of dissolution or liquidation of the Company; (ii) the consummation of the sale or disposition of all or substantially all of the assets of the
-6-
Company; (iii) the consummation of a merger, consolidation or other shareholder-approved fundamental business transaction in which the Company is a participant with another entity where the stockholders of the Company, immediately prior to the referenced transaction, will not beneficially own, immediately after the referenced transaction, shares or other equity interests entitling such stockholders to more than 50% of all votes to which all equityholders of the surviving entity would be entitled in the election of directors; (iv) the date any entity, person or group, (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended), (other than (A) the Company or any of its subsidiaries or any employee benefit plan (or related trust) sponsored or maintained by the Company or any of its subsidiaries or (B) any person who, on the date the Plan is effective, is the beneficial owner of outstanding securities of the Company), shall have become the beneficial owner of, or shall have obtained voting control over, more than fifty percent (50%) of the outstanding shares of the Common Stock; or (v) the first day after the date hereof when directors are elected such that a majority of the Board shall have been members of the Board for less than twenty-four (24) months, unless the nomination for election of each new director who was not a director at the beginning of such twenty-four (24) month period was approved by a vote of at least two-thirds of the directors then still in office who were directors at the beginning of such period.
(b)Severance.
(i) In the event of any termination of the Executive’s employment for any reason, the Executive (or his estate) shall be entitled to (A) his Base Salary through the date of termination, (B) the value of his accrued but unused vacation and paid time off through the date of termination, (C) except in the case of termination for Cause, any bonus earned in a prior year but not yet paid on the date of termination, (D) reimbursement of all business expenses properly incurred prior to the date of termination consistent with Company policy, and (E) any benefits, including any continuation or conversion rights, provided under any employee benefit plan or policy of the Company (not including any severance, separation pay, or supplemental unemployment benefit plan), in accordance with the terms of such plan or policy (the “Accrued Benefits”).
(ii) In the event of termination of the Executive’s employment by reason of death or Disability, the Company shall pay or provide to the Executive or the Executive’s estate (A) the Accrued Benefits, (B) the Executive’s Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), for a period of six (6) months from the effective date of such termination, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days in the calendar year that the Executive is employed by the Company in such year of the effective date of termination) and paid within thirty (30) days following such termination, and (D) continued health benefits for the Executive and his eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company), if applicable, for the same period.
(iii) In the event of a nonrenewal or termination by the Company pursuant to Section 2 or Section 10(a)(iii), or if the Executive terminates this Agreement during the twelve (12) months after a Change of Control pursuant to Section 10(a)(v), the
-7-
Company shall (A) pay or provide to the Executive the Accrued Benefits, (B) pay the Executive a pro-rata annual bonus in respect of the fiscal year in which the effective date of termination occurs (determined based on the number of days in the calendar year that the Executive is employed by the Company in such fiscal year of the effective date of termination), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his eligible dependents’, health insurance benefits at Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for a period of twelve (12) months from the effective date of such termination, and (D) provide the Executive, at the Company’s expense, with senior executive level outplacement services for a period of twelve (12) months from the date of termination, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, provided that such outplacement expenses shall not exceed $25,000 in any event.
(iv) Except as expressly provided in this Section 10(b), upon the termination of the Executive’s employment, all payments hereunder shall cease.
(v) The payments and benefits described in Sections 10(b)(ii) and 10(b)(iii) are in lieu of, and not in addition to, any other severance arrangement maintained by the Company. The payments and benefits described in Sections 10(b)(ii) and 10(b)(iii), other than the Accrued Benefits, are conditioned on:
i. The Executive’s (or in the case of Executive’s death, his/her estate’s) execution and delivery to the Company and the expiration of all applicable statutory revocation periods, by the sixtieth (60th) day following the effective date of his termination of employment, of a general release of claims against the Company and its affiliates substantially in the form attached hereto asExhibit A(the “Release”). Subject to Section 11 below, the payments and benefits described in Section 10(b)(ii) and 10(b)(iii) will begin to be paid or provided as soon as administratively practicable after the Release becomes irrevocable, provided that if the sixty (60) day period described above begins in one taxable year and ends in a second taxable year such payments or benefits shall not commence until the second taxable year.
ii. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits described in Sections 10(b)(ii) and 10(b)(iii), and such benefits shall not be reduced or offset by an amounts received by the Executive from any other source, except to the extent the Executive’s medical coverage is discontinued by reason of his acquiring other coverage.
(c) The provisions of this Agreement shall survive expiration or termination of this Agreement for any reason to the extent necessary to enable the parties to enforce their respective rights hereunder, including without limitation Sections 4(e), 5, 6, 7, 8, 9, 10(b), 10(c), 11, 12, 13, 14, 15 and 16.
-8-
11.Compliance with Section 409A.
(a) Notwithstanding anything to the contrary in this Agreement, all benefits or payments provided by the Company to the Executive that would be deemed to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code are intended to comply with Section 409A of the Code. Notwithstanding anything in this Agreement to the contrary, distributions of benefits which constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code may be made under this Agreement upon an event and in a manner permitted by Section 409A of the Code or an applicable exemption.
(b) Notwithstanding anything to the contrary in this Agreement, no portion of the benefits or payments to be made under Section 10(b) hereof will be payable until the Executive has a “separation from service” from the Company within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”). In addition, to the extent compliance with the requirements of Treas. Reg. § 1.409A-3(i)(2) (or any successor provision) is necessary to avoid the application of an additional tax under Section 409A of the Code to payments due to the Executive upon or following his “separation from service”, then notwithstanding any other provision of this Agreement (or any otherwise applicable plan, policy, agreement or arrangement), any such payments that are otherwise due within six months following the Executive’s “separation from service” (taking into account the preceding sentence of this paragraph) will be deferred without interest and paid to the Executive in a lump sum immediately following that six month period. This paragraph should not be construed to prevent the application of Treas. Reg. § 1.409A-1(b)(9)(iii) (or any successor provision) to amounts payable hereunder. For purposes of the application of Section 409A of the Code, each payment in a series of payments will be deemed a separate payment.
(c) Notwithstanding anything to the contrary in this Agreement, except to the extent any expense, reimbursement or in-kind benefit provided to the Executive does not constitute a “deferral of compensation” within the meaning of Section 409A of the Code, and its implementing regulations and guidance, (i) the amount of expenses eligible for reimbursement or in-kind benefits provided to the Executive during any calendar year will not affect the amount of expenses eligible for reimbursement or in-kind benefits provided to the Executive in any other calendar year, (ii) the reimbursements for expenses for which the Executive is entitled to be reimbursed shall be made on or before the last day of the calendar year following the calendar year in which the applicable expense is incurred and (iii) the right to payment or reimbursement or in-kind benefits hereunder may not be liquidated or exchanged for any other benefit.
12.Parachute Payment.
(a) If any payment or benefit the Executive would receive under this Agreement or otherwise in connection with a Change of Control, as defined herein (the “Total Payments”) would (i) constitute a “Parachute Payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Total Payment shall be equal to the Reduced Amount. The “ Reduced Amount” shall be either (x) the largest portion of the Total Payment that would result in no portion of the Total Payment being subject to the Excise Tax or (y) the largest portion, up to and including the total of the Total Payment, whichever amount, after taking into account all applicable federal, state
-9-
and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in the Executive’s receipt, on an after-tax basis, of the greatest economic benefit notwithstanding that all or some portion of the Total Payment may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments is necessary so that the Total Payment equals the Reduced Amount, reduction shall occur in the manner that results in the greatest economic benefit for the Executive. In applying this principle, the reduction shall be made in a manner consistent with the requirements of Section 409A of the Code, and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis but not below zero.
(b) In the event it is subsequently determined by the Internal Revenue Service that some portion of the Reduced Amount (as determined pursuant to clause (x) in the preceding paragraph) is subject to the Excise Tax, the Executive agrees to promptly return to the Company a sufficient amount of the Total Payment so that no portion of the Reduced Amount is subject to the Excise Tax. For the avoidance of doubt, if the Reduced Amount is determined in accordance with clause (y) in the preceding paragraph, the Executive will have no obligation to return any portion of the Total Payment pursuant to the preceding sentence. Unless the Executive and the Company agree on an alternative accounting or law firm, the accounting firm then engaged by the Company for general tax compliance purposes shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Company shall appoint a nationally recognized accounting, law or consulting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting, law or consulting firm required to be made hereunder.
(c) The Company shall use commercially reasonable efforts such that the accounting, law or consulting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Total Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company.
13.Notices. All notices, consents, waivers or other communications which are required or permitted hereunder will be sufficient if given in writing and delivered personally, by overnight mail service, by fax transmission (which is confirmed) or by registered or certified mail, return receipt requested, postage prepaid, to the parties at the addresses set forth below (or to such other addressee or address as will be set forth in a notice given in the same manner):
| | |
| If to the Company: | | Recro Pharma, Inc. 490 Lapp Road Malvern, PA 19355, USA Attn: Gerri Henwood CEO |
| |
If to the Executive: | | Ryan D. Lake Address on file. |
All such notices will be deemed to have been given three business days after mailing if sent by registered or certified mail, one business day after mailing if sent by overnight courier service, or on the date delivered or transmitted if delivered personally or sent by fax transmission.
-10-
14.Indemnification. To the maximum extent permitted by applicable law, both during the term of this Agreement and at all times thereafter, regardless of the reason for termination, the Company shall indemnify the Executive and hold the Executive harmless against any cost, fee, expense, fine or penalty (a “cost”) to which he may be subject as a result of serving as an employee or officer of the Company or any other entity at the Company’s direction, shall advance to the Executive, as incurred, the reasonable costs (including fees and disbursements of legal counsel) incurred by him in defending any judicial or administrative proceeding, including any investigation, that may give rise to a cost, subject to the Executive’s obligation to repay any such advance if it is subsequently determined that he was not entitled to indemnification, and shall provide for the Executive to be covered by its directors and officers, or any similar, insurance policy at the level applicable to its most senior active officers.
15.Nondisparagement. Both during the term of this Agreement and at all times thereafter, regardless of the reason for termination, the Executive shall not publicly disparage the Company, and the Company shall instruct the members of the Board and its senior executives not to publicly disparage the Executive.
16.Miscellaneous.
(a) No provision of this Agreement may be amended unless such amendment, modification or discharge is agreed to in writing signed by the parties hereto.
(b) No waiver by any party hereto of any breach of, or compliance with, any condition or provision of this Agreement by the other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. No such waiver shall be enforceable unless expressed in a written instrument executed by the party against whom enforcement is sought.
(c) This Agreement constitutes the entire agreement of the parties on the subject matter and no agreements or representations, oral or otherwise, expressed or implied, with respect to the subject matter hereof have been made by either party which are not set forth expressly in this Agreement. For the avoidance of doubt, any prior agreements or representations made by either party which are not set forth expressly in this Agreement, including, but not limited to, the Offer Letter dated May 12, 2017, are hereby superseded. In the event of any conflict between this Agreement and any policy of the Company, the terms of this Agreement will control.
(d) This Agreement shall be binding upon and inure to the benefit of the Company, its successors and assigns, and the Executive and his heirs, executors, administrators and legal representatives. The Company may not assign its rights and obligations under this Agreement to any person without the prior written consent of the Executive, except to a successor to the Company’s business that expressly adopts and agrees to be bound by this Agreement.
(e) This Agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Pennsylvania without giving effect to its principles of conflicts of law. Exclusive jurisdiction for any dispute between the parties arising from or in connection with this Agreement and/or the relationship between the Executive and the Company shall lie with the federal and state courts located in the Commonwealth of Pennsylvania, and each party hereby consents to the personal jurisdiction of such courts.
-11-
(f) This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument.
(g) This Agreement has been jointly drafted by the respective representatives of the Company and the Executive and no party shall be considered as being responsible for such drafting for the purpose of applying any rule construing ambiguities against the drafter or otherwise. No draft of this Agreement shall be taken into account in construing this Agreement.
[Execution page follows]
-12-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written.
| | |
| EXECUTIVE: |
|
| /s/ Ryan D. Lake |
| Ryan D. Lake |
|
| COMPANY: |
|
| RECRO PHARMA, INC. |
| |
| By: | | /s/ Gerri Henwood |
| | Gerri Henwood, President |
-13-
Exhibit A
SEPARATION AND MUTUAL RELEASE AGREEMENT
THIS SEPARATION AND MUTUAL RELEASE AGREEMENT (this “Release”) is made by and between Ryan D. Lake (the “Executive”) and Recro Pharma, Inc. (the “Company”).
WHEREAS, the Executive’s employment with the Company has terminated; and
WHEREAS, pursuant to Section 10(b)[ii][iii] of the Employment Agreement by and between the Company and the Executive dated as of June __, 2017 (the “Employment Agreement”), the Company has agreed to pay the Executive certain amounts and to provide certain benefits, subject to his execution and non-revocation of this Release. All terms used but not defined herein shall have the meanings ascribed to such terms in the Employment Agreement.
NOW THEREFORE, in consideration of these premises and the mutual promises contained herein, and intending to be legally bound hereby, the parties agree as follows:
1. Consideration. The Executive acknowledges that: (i) the payments set forth in Section 10(b)[ii][iii] of the Employment Agreement constitute full settlement of all his rights under the Employment Agreement, (ii) he has no entitlement under any other severance or similar arrangement maintained by the Company or any of its affiliates, and (iii) except as otherwise provided specifically in this Release, the Company does not and will not have any other liability or obligation to the Executive by reason of the cessation of his employment. The Executive further acknowledges that, in the absence of his execution of this Release, the payments and benefits specified in Section 10(b)[ii][iii] of the Employment Agreement would not otherwise be due to him.
2. Mutual Release and Covenant Not to Sue.
2.1.Mutual Release. The Executive, on his own behalf and together with his heirs, assigns, executors, agents and representatives hereby fully and forever releases and discharges the Company, its predecessors, successors (by merger or otherwise), parents, subsidiaries, affiliates and assigns, together with each and every of their present, past and future officers, directors, shareholders, general partners, limited partners, employees and agents (in their official, individual and all other capacities), and all other persons or entities acting with, for, through or in concert with any of them (herein collectively referred to as the “Company Releasees”) from any and all claims, demands, liens, agreements, contracts, covenants, actions, suits, causes of action, obligations, controversies, debts, costs, expenses, damages, judgments, orders and liabilities, of whatever kind or nature, direct or indirect, in law, equity or otherwise, whether known or unknown, which the Executive now has, or hereafter can, shall or may have for, upon or by reason of any act, transaction, practice, conduct, matter, cause or thing of any kind or nature whatsoever (each, a “Claim”) arising or occurring through the Effective Date of this Release. The Company hereby fully and forever releases and discharges the Executive from any Claim arising or occurring through the Effective Date of this Release, including, but not limited to, any Claim arising out of the Executive’s employment by the Company or the termination thereof.
2.2.Covenant Not to Sue. The Executive expressly represents that he has not filed a lawsuit or initiated any other administrative proceeding against the Company and that he has not assigned any claim against the Company to any other person or entity. The Company expressly represents that it has not filed a lawsuit or initiated any other administrative proceeding against the Executive and that it has not
assigned any claim against the Executive to any other person or entity. Both the Executive and Company further promise not to initiate a lawsuit or to bring any other claim against the other arising out of or in any way related to the Executive’s employment by the Company or the termination of that employment. Notwithstanding anything in this Release to the contrary, this Release will not prevent the Executive from filing a charge with the Equal Employment Opportunity Commission (or similar state agency) or participating in any investigation conducted by the Equal Employment Opportunity Commission (or similar state agency); provided, however, that any claims by the Executive for personal relief in connection with such a charge or investigation (such as reinstatement or monetary damages) will be barred.
2.3.Claims Not Released. Notwithstanding Section 2.1, the forgoing release of any Claim does not release the Company or the Executive from claims : (a) to enforce this Release, (b) claims to enforce the Executive’s rights under any employee benefit plan in accordance with the terms of the applicable plan(s), or (c) for indemnification under the Company’s By-Laws, under applicable law, or under any indemnification agreement between the Company and the Executive. Additionally, the foregoing does not release the Executive from claims the Company may have arising out of or related to: (x) Executive’s criminal or other serious misconduct related to the Company, (y) Executive’s breach of fiduciary duty to the Company, or (z) Executive’s material breach of any agreement with the Company.
2.4.Claims Released. The Executive understands and agrees that the claims released in Section 2.1 include, but are not limited to: (a) any Claim based on any law, statute, or constitution or based on contract or in tort or based on common law; (b) any Claim based on or arising under any civil rights laws, labor laws, or employment laws, such as the Pennsylvania Human Relations Act, or the civil rights laws of any other state or jurisdiction, or Title VII of the Civil Rights Act of 1964 (“Title VII”), or the federal Age Discrimination in Employment Act of 1967 (“ADEA”), or the Americans with Disabilities Act of 1990 (“ADA”), or the Civil Rights Act of 1991, or the Worker Adjustment and Retraining Notification Act (“WARN”); (c) any Claim under any grievance or complaint procedure of any kind; (d) any Claim based on or arising out of or related to the Executive’s recruitment by, employment with, the termination of the Executive’s employment with, the Executive’s performance of any services in any capacity for, or any business transaction with, any or all of the Company Releasees (including, but not limited to any claim for wrongful or retaliatory discharge); (e) any Claim for a personal recovery by the Executive in connection with, or arising from, any lawsuit or proceeding brought by any person or entity other than the Executive (including, but not limited to, any Claim brought by any administrative agency, department or commission); (f) any Claim for the Executive’s attorneys’ fees, costs or expenses relating to this Release; and (g) any other Claim for compensation of any kind.
3. Cooperation. The Executive further agrees that he will cooperate fully with the Company and its counsel with respect to any matter (including litigation, investigations, or governmental proceedings) in which the Executive was in any way involved during his employment with the Company. The Executive shall render such cooperation in a timely manner on reasonable notice from the Company.
4. Mutual Non-Disparagement. The Company’s officers and directors will not disparage the Executive or the Executive’s performance or otherwise take any action which could reasonably be expected to adversely affect the Executive’s personal or professional reputation. Similarly, the Executive will not disparage the Company or any of its directors, officers, agents or employees or otherwise take any action which could reasonably be expected to adversely affect the personal or professional reputation of the Company or any of its directors, officers, agents or employees.
5. Permitted Conduct. Notwithstanding anything in this Release to the contrary, nothing in this Release shall prohibit or restrict the Executive from: (a) initiating communications directly with, or responding to any inquiry from, or providing testimony before, the SEC, FINRA, any other self-regulatory
A-15
organization or any other state or federal regulatory authority; (b) making any disclosure of relevant, necessary and truthful information or documents: (i) pursuant to the Sarbanes-Oxley Act; (ii) as otherwise required by law or legal process; (iii) in connection with any charge, action, investigation or proceeding relating to this Release; or (iv) to the Company’s Legal Department.
6. Restrictive Covenants. The Executive acknowledges that the restrictive covenants contained in Sections 5, 6, 7, 8 and 9 of the Employment Agreement will survive the termination of his employment (the “Restrictive Covenants”). The Executive affirms that the Restrictive Covenants are reasonable and necessary to protect the legitimate interests of the Company, that he received adequate consideration in exchange for agreeing to the Restrictive Covenants and that he will abide by the Restrictive Covenants.
7. Rescission Right. The Executive expressly acknowledges and recites that: (a) he has read and understands the terms of this Release in its entirety, (b) he has entered into this Release knowingly and voluntarily, without any duress or coercion, (c) he has been advised orally and is hereby advised in writing to consult with an attorney with respect to this Release before signing it, (d) he was provided at least twenty-one (21) calendar days after receipt of the Release to consider its terms before signing it, and (e) he is provided seven (7) calendar days from the date of signing to terminate and revoke this Release, in which case this Release shall be unenforceable, null and void. The Executive may revoke this Release during those seven (7) days by providing written notice of revocation to Recro Pharma, Inc., 490 Lapp Road, Malvern, PA 19355 Attn: Chief Executive Officer. Provided that the Executive does not revoke this Release, the Release shall become effective on the eighth (8th) day following the Executive’s execution of the Release (the “Effective Date”).
8. Medicare Beneficiary Representation. The Executive warrants that, as of the date he signs this Agreement, he is not a Medicare beneficiary, is not Medicare eligible, is not within 30 months of becoming Medicare eligible, is not 65 years of age or older, is not suffering from end stage renal failure or amyotrophic lateral sclerosis, has not received Social Security benefits for 24 months or longer, has not applied for Social Security benefits, and has not been denied Social Security disability benefits and is appealing the denial. The Executive affirms, covenants, and warrants that he has made no claim, nor is he aware of any facts supporting any claim, against any of the Company Releasees under which any of the Company Releasees could be liable for medical expenses incurred by the Executive before or after the execution of this Agreement. Furthermore, the Executive is aware of no medical expenses for which Medicare has paid and for which any of the Company Releasees is or could be liable. The Executive agrees and affirms that, to the best of his knowledge, no liens of any governmental entities, including those for Medicare conditional payments, exist. The Executive acknowledges and agrees that the payment(s) made to him under this Agreement may be reported as provided in Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007, 42 U.S.C. § 1395y(b)(8). The Executive also agrees to indemnify, defend, and hold the Company Releasees harmless from Medicare claims, liens, damages, conditional payments, and rights to payment, if any, including attorneys’ fees. The Executive specifically waives any related claims for damages against any and all of the Company Releasees including, without limitation, a private cause of action provided by 42 U.S.C. § 1395y(b)(3)(A).
9. Miscellaneous.
9.1.Tax Withholding. All payments provided to the Executive will be subject to tax withholding in accordance with applicable law.
9.2.No Admission of Liability. This Release is not to be construed as an admission of any violation of any federal, state or local statute, ordinance or regulation or of any duty owed by the Company to the Executive. There have been no such violations, and the Company specifically denies any such violations.
A-16
9.3.No Reinstatement. The Executive agrees that he will not apply for reinstatement with the Company or seek in any way to be reinstated, re-employed or hired by the Company in the future.
9.4.Successors and Assigns. This Release shall inure to the benefit of and be binding upon the Company and the Executive and their respective successors, permitted assigns, executors, administrators and heirs. The Executive may not make any assignment of this Release or any interest herein, by operation of law or otherwise. The Company may assign this Release to any successor to all or substantially all of its assets and business by means of liquidation, dissolution, merger, consolidation, transfer of assets, or otherwise.
9.5.Severability. Whenever possible, each provision of this Release will be interpreted in such manner as to be effective and valid under applicable law. However, if any provision of this Release is held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability will not affect any other provision, and this Release will be reformed, construed and enforced as though the invalid, illegal or unenforceable provision had never been herein contained.
9.6.Entire Agreement; Amendments. Except as otherwise provided herein, this Release contains the entire agreement and understanding of the parties hereto relating to the subject matter hereof, and merges and supersedes all prior and contemporaneous discussions, agreements and understandings of every nature relating to the subject matter hereof. This Release may not be changed or modified, except by an agreement in writing signed by each of the parties hereto.
9.7.Governing Law. This Release shall be governed by, and enforced in accordance with, the laws of the Commonwealth of Pennsylvania without regard to the application of the principles of conflicts of laws.
9.8.Execution Date; Counterparts and Facsimiles. This Release may not be signed by the Executive prior to the date of Executive’s termination of employment. This Release may be executed in multiple counterparts (including by facsimile signature), each of which will be deemed to be an original, but all of which together will constitute but one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
[space intentionally left blank; signature page follows]
A-17
IN WITNESS WHEREOF, the Company has caused this Release to be executed by its duly authorized officer, and the Executive has executed this Release, on the date(s) below written.
| | |
| RECRO PHARMA, INC. |
| |
| By: | | |
| |
| Name & Title: | | |
A-18
