Exhibit 10.60
June 14, 2001
Mr. Brian J. Herrman
12 Colony Road
Canton, CT 06019
Dear Brian:
It is our pleasure to offer you the position of Sr. Vice President, Finance and
Chief Financial Officer with a start date of no later than June 22, 2001 (or
negotiated). In this role, you will report directly to me. The basic terms and
conditions of your employment are summarized below and are subject to the
Company emerging from Chapter 11 Bankruptcy and the Company's Plan of
Reorganization becoming Effective:
Position Sr. Vice President, Finance and Chief Financial
Officer
Employment Term The term of this agreement will commence upon the
Effective Date of the Company's Emergence from
Chapter 11 Bankruptcy Proceedings and extend through
the second anniversary of such date. The Agreement
will renew automatically on an annual basis unless
the Board gives at least 60 days notice of its intent
not to renew.
Base Salary You will be paid bi-weekly, as an exempt employee at
the bi-weekly rate of $6,923.08 ($180,000 annually)
earned and paid bi-weekly on Wednesdays.
Performance Bonus Up to 50% of base salary for achievement of
individual and corporate goals for each twelve-month
performance period as set by the Board of Directors.
For each fiscal year or "Bonus Period" established by
the Board of Directors during the Employment Term,
you will be eligible to participate in the Company's
Management Bonus Plan in an amount up to 50% of
salary. Such plan will be established annually by the
Board based on the Company's earnings before
interest, taxes, and depreciation (EBITD) and other
performance goals established on a corporate and
individual basis. For the avoidance of doubt, no
bonus shall be paid in the event the Company's EBITD
during the Bonus Period fails to meet or exceed the
total amounts to be paid under the Bonus Plan for
that period. In the event of shortfall, your bonus
will be reduced proportionately with that of other
participants in the management bonus plan.
Additionally you will be eligible for the following
payments during the first twelve (12) months of
employment:
1. Securing a Line of Credit: Bonus payment
will be 1% of the Line of Credit.
2. Securing Venture Capital investment: Bonus
payment will be 1% of the net new equity
invested in the Company.
Bonus payouts for the Line of Credit will be deducted
from any Performance Bonus earned in the Company's
Management Bonus Plan. Performance Bonus pay for new
equity will be over and above all other payments.
Stock Options The Company will issue a Non-Qualified Stock Option
("Retention Options") under the new Employee
Incentive Plan to purchase 100,000 shares of New
Common Stock. Such shares shall be granted on the
Effective Date of the Plan of Reorganization or the
first date the Board of Directors authorizes the
granting of Employee Stock Options under the new
Employee Incentive Plan. Such shares shall have a
price no greater than the price provided in the Plan
of Reorganization. All shares will vest over three
years.
Brian Herrman
Page 2
Number of Options
Available For Exercise
Date On or After Date
---- ----------------
As of the Effective Date 0
One Year Following the Effective Date 33,334
Two Years Following the Effective Date 33,333
Three Years Following the Effective Date 33,333
Additionally, you will be eligible for up to 25,000
Performance Options to be granted by the Company
based on attainment of certain objectives to be set
by the Board of Directors appropriate to your role as
Chief Financial Officer. This will be accomplished
within the first 180 days of your employment.
In the event of a Change of Control, as defined in
the Bio-Plexus, Inc. Non-Statutory Stock Option
Agreement to be signed between you and the Company,
you will become fully vested in all Retention
Options. Performance Options will become fully vested
and exercisable at the discretion of the Board of
Directors unless otherwise provided in the
Performance Option Agreement to be signed between you
and the Company. For clarity, "Change of Control" is
defined below.
Vacation Four weeks annually.
Employee Health and 1. You will become eligible for our Medical,
Other Benefits Life, AD&D, and flexible spending account
benefits on the first day of the month after
your hire date.
2. After ninety days of employment you will be
eligible for Dental coverage and eligible to
participate in the 401k plan.
Severance Less than or Equal to One Year of Service: you will
be entitled to receive six (6) months of salary
continuation upon termination of your employment by
the Company other than for cause.
More than One Year of Service: you will be entitled
to receive up to one (1) year of salary continuation
by upon termination of your employment by the Company
during the Employment Term other than for cause.
You will be entitled to receive severance upon your
termination by the Company during the Employment Term
for any reason other than for cause. Only the
following shall constitute "cause" for such
termination: "Cause" means (i) any felony conviction
or admission of guilt, (ii) any breach or
nonobservance by Employee of any material covenant
set forth herein, (iii) any willful, intentional or
deliberate disobedience or neglect by Employee of the
lawful and reasonable orders or directions of the
Company or its Board of Directors, or (iv) any
willful or deliberate misconduct by employee that is
materially injurious to the Company.
To receive the salary continuation severance of six
months or one year, you will be required to sign a
Severance Agreement and General Release and
Non-Compete Agreement. The non-compete period would
be coterminous with the salary continuation period.
Contingencies This offer is contingent upon your passing a drug
test, providing documentation that you have the right
to live and work in the United States, execution of
other standard employee documents and agreements and
successful completion of references to the
satisfaction of Bio-Plexus.
Brian Herrman
Page 3
You should understand that all employees are employed at the will of the Company
for an indefinite period. Employees may resign from the Company at any time, for
any reason, and may be terminated by the Company at any time, for any reason,
with or without notice.
Definition:
"Change in Control" means any (i) consolidation or merger involving
the Company, if the shareholders of the Company immediately before such merger
or consolidation do not own, directly or indirectly, immediately following such
merger or consolidation, more than fifty percent (50%) of the combined voting
power of the outstanding voting securities of the corporation or other entity
resulting from such merger or consolidation in substantially the same proportion
as their ownership of the shares of Common Stock immediately before such merger
or consolidation; (ii) sale, lease, license, exchange or other transfer (in one
transaction or a series of related transactions) of all, or substantially all,
of the business and/or assets of the Company or assets representing over 50% of
the operating revenue of the Company; or any (iii) person (as such term is used
in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act")), other than Appaloosa Management, L.P. and its affiliates
and/or related funds, who is not, as of June 14, 2001, a controlling person (as
defined in Rule 405 under the Securities Act of 1933, as amended) (a
"Controlling Person") of the Company becomes (x) the beneficial owner (within
the meaning of Rule 13d-3 under the Exchange Act) of over 50% of the Company's
outstanding Common Stock or the combined voting power of the Company's then
outstanding voting securities entitled to vote generally or (y) a Controlling
Person of the Company.
Upon acceptance of this offer, please immediately return this signed letter in
the enclosed pre-addressed envelope. A copy will be provided to you upon
request. This offer of employment will be valid for one week from the date of
this letter.
Brian, we look forward to you joining us at Bio-Plexus. We believe you will
bring significant contributions to the company and also be a valuable member of
the executive management team.
Sincerely,
John S. Metz
President and Chief Executive Officer
I have read and accepted the above offer:
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Brian J. Herrman Date