Attached files
file | filename |
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8-K - FORM 8-K - BAXANO SURGICAL, INC. | g21764e8vk.htm |
EX-99.1 - EX-99.1 - BAXANO SURGICAL, INC. | g21764exv99w1.htm |
EX-99.2 - EX-99.2 - BAXANO SURGICAL, INC. | g21764exv99w2.htm |
EX-99.3 - EX-99.3 - BAXANO SURGICAL, INC. | g21764exv99w3.htm |
Exhibit 10.1
December 11, 2009
Ken Reali
5213 Atherton Bridge Rd
Raleigh, NC 27613
5213 Atherton Bridge Rd
Raleigh, NC 27613
Re: Offer of Employment with TranS1 Inc.
Dear Ken:
On behalf
of TranS1 Inc., a Delaware corporation (the
Company), I am pleased to
invite you to join the Company as its President and Chief Operating
Officer. The first day of your employment
will be no later than Monday, January 18, 2010, or such other date as you and the Company mutually
agree in writing (Effective Date).
The terms of this offer of employment are as follows:
1. At-Will Employment; Position and Duties.
(a) At-Will Employment. You should be aware that your employment with the Company is for no
specified period and constitutes at-will employment. As a result, either you or the Company may
terminate your employment with the Company at any time and for any or no reason. We request that
you give the Company at least thirty (30) days notice in the event of a resignation without Good
Reason (as defined under Section 6 below).
(b) Position and Duties. As of the Effective Date, you will serve as the Chief Operating
Officer of the Company, reporting directly to me, the Companys Chief Executive Officer. In this
position, you will be expected to devote your full business time, attention and energies to the
performance of your duties with the Company.
2. Compensation. The Company will pay you a salary at the rate of $340,000.00 per year
payable in accordance with the Companys standard payroll policies, including compliance with
applicable withholding (the Base Salary). Any increased or decreased Base Salary shall
serve as the Base Salary for future employment under this offer letter. The first and last
payment by the Company to you will be adjusted, if necessary, to reflect a commencement or
termination date other than the first or last working day of a pay period.
3. Stock Option.
Ken Reali
December 11, 2009
Page 2
December 11, 2009
Page 2
(a) Grant. Subject to approval by the Companys Board of Directors, you will be
granted an option pursuant to the Companys 2005 Stock Plan (the Plan) to purchase
300,000 shares of the Companys Common Stock at an exercise price equal to the fair market value
per share of the Companys Common Stock on the date the Board of Directors approves the option
grant (the Option Grant). The Option Grant shall be subject to the terms and conditions
of the Plan and the Companys standard form of stock option agreement.
(b) Vesting Schedule; Exercise Terms. One-fourth (1/4th) of the shares subject to the Option
Grant will vest on the first anniversary of the Effective Date and an additional one thirty-sixth
(1/36th) of the remaining number of such shares will vest each month thereafter, subject
to your continued employment with the Company on each such date. The Option Grant shall be
exercisable up to the number of vested shares according to the vesting schedule set forth in the
preceding sentence.
(c) Change of Control. In the event of a Change of Control, if you are not employed by the
successor of our business as the Chief Operating Officer, or your then existing position with the
Company, for the Spine business of the successor all then-unvested options under the Option Grant
shall vest and become exercisable on the effective date of such Change of Control. If you are so
employed as the Chief Operating Officer or such higher position as you should then hold with the
Company of the successors Spine business and the successor assumes or replaces your Options, then
your Options will continue to vest as provided above. If your are so employed and your employment
with the successor is terminated by the successor without Cause or by you for Good Reason within
twelve months of the effective date of such Change of Control your Options shall vest and become
exercisable.
4. Bonus.
(a) Annual Bonus. You will be eligible to earn a bonus of up to fifty percent (50%) of your
Base Salary, based upon the achievement of Company and individual goals that will be determined by
the Companys Board of Directors. The bonus, if any, will be determined and paid on an annual
basis at the sole discretion of the Board of Directors, at the time and manner to be determined by
the Board of Directors. You must be employed on the date that your bonus, if any, is to be paid in
order to earn and be eligible to receive the bonus.
(b) Signing Bonus. On March 1, 2010, following commencement of your employment with the
Company, you shall be paid a bonus in the amount of at least $115,000, less deductions as required
by law. Such bonus shall be increased by up to $50,000 in the event your current employer
determines that you must reimburse them for all or a portion of the relocation cost that they
incurred upon your joining that company. The Company shall reimburse such payment by you to your
former employer for up to $50,000. In the event you have no such reimbursement obligation to your
former employer, or your reimbursement amount is less than $15,000, then the Company shall pay such
lower reimbursement amount plus an amount to cause the signing bonus plus reimbursement amount
hereunder to be increased by an additional $15,000.
5. Benefits.
Ken Reali
December 11, 2009
Page 3
December 11, 2009
Page 3
(a) Standard. During the term of your employment, you will be eligible to participate in the
Companys standard vacation and benefits covering Company employee executives at your level, as
such may be in effect from time to time.
(b) Apartment. The Company shall provide you with an apartment in Wilmington, North Carolina
for such time as you have not moved your family to Wilmington, North Carolina during the term of
your employment with the Company.
6. Definitions.
(a) Cause. For purposes of this offer letter, Cause shall mean: (1) your gross
negligence in the performance of or failure to perform the duties and obligations of your position
with the Company or under this offer letter (for reasons other than death or Disability), which
gross negligence, if curable within the discretion of the Companys Board of Directors, is not
cured to the reasonable satisfaction of the Companys Board of Directors within thirty (30) days
after receipt of written notice from the Board of Directors of such failure; (ii) any act of
personal dishonesty, fraud, embezzlement, misrepresentation, or any unlawful act committed by you
that results in your substantial gain or personal enrichment at the expense of the Company; (iii)
your violation of a federal or state law or regulation applicable to the Companys business; (iv)
your violation of or a plea of nolo contendere or guilty to, a felony under the laws of the United
States or any state; or (v) your material breach of the terms of this offer letter or the
Confidentiality Agreement.
(b) Change of Control. For purposes of this offer letter, Change of Control shall
mean the occurrence of any of the following events:
(i) Any person (as such term is used in Sections 13(d) and 14(d) of the Exchange Act)
becomes the beneficial owner (as defined in Rule 13d-3 of the Exchange Act), directly or
indirectly, of securities of the Company representing fifty percent (50%) or more of the total
voting power represented by the Companys then outstanding voting securities, except that any
change in the beneficial ownership of the securities of the Company as a result of an equity
financing of the Company that is approved by the Companys Board of Directors, shall not be deemed
to be a Change in Control; or
(ii) The consummation of the sale or disposition by the Company of all or substantially all of
the Companys assets; or
(iii) The consummation of a merger or consolidation of the Company with any other corporation,
other than a merger or consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by remaining outstanding or
by being converted into voting securities of the surviving entity or its parent) at least fifty
percent (50%) of the total voting power represented by the voting securities of the Company or such
surviving entity or its parent outstanding immediately after such merger or consolidation.
(c) Disability. For purposes of this offer letter, Disability shall mean
that you, at the time notice is given have been unable to substantially perform your duties of your
position with the Company or under this offer letter for not less than one-hundred and twenty (120)
work days within a twelve (12) consecutive month period as a result of your incapacity due to a
physical or
Ken Reali
December 11, 2009
Page 4
December 11, 2009
Page 4
mental condition and, if reasonable accommodation is required by law, after any
reasonable accommodation.
(d) Good Reason. For purposes of this offer letter and prior to a Change of Control, Good
Reason shall mean, without your written consent: (i) there is a material reduction of the level
of your compensation (excluding any bonuses) (except where there is a general reduction applicable
to the management team generally); (ii) there is a material reduction in your overall
responsibilities or authority, or scope of duties; or (iii) there is a material change in the
geographic location at which you must perform your services; provided however, that in no instance
will such a relocation to an office location fifty (50) miles or less from the Companys current
office location or a relocation that does not require you to move from your present home in
Raleigh, North Carolina be deemed material for purposes of this offer letter. For purposes of this
offer letter and after a Change of Control but prior to the expiration of the twelve months after
the Change of Control, Good Reason shall mean, without your written consent: (i) there
is a material reduction of the level of your compensation (excluding any bonuses) below the amount
set forth in the first sentence of Section 2 above; (ii) you are not the Chief Operating Officer of
the successors spine business; or (iii) there is a material change in the geographic location at
which you must perform the your services after the Change of Control; provided however, that in no
instance will such a relocation to an office location fifty (50) miles or less from the Companys
office location immediately preceding the Change of Control or a relocation that does not require
you to move from your present home in Raleigh, North Carolina be deemed material for purposes of
this offer letter.
7. Immigration Laws. For purposes of federal immigration laws, you will be required to
provide to the Company documentary evidence of your identity and eligibility for employment in the
United States. Such documentation must be provided within three (3) business days of the effective
date of your employment, or your employment relationship with the Company may be terminated. You
understand and agree that any termination under this Section 10 for failure to properly provide the
requested documentation shall be considered the same as a termination for Cause under this offer
letter.
8. Employee Proprietary Information Agreement. As a condition of this offer of employment,
you will be required to complete, sign and return the Companys standard form of At-Will Employee
Confidential and Proprietary Information Agreement (the Confidentiality Agreement). A
copy of the Confidentiality Agreement is attached hereto as Exhibit A.
9. General. This offer letter, the Confidentiality Agreement and the stock option agreement (as
approved by the Board of Directors) covering the Option Grant, when signed by you, set forth the
terms of your employment with the Company and supersede any and all prior representations and
agreements, whether written or oral. In the event of a conflict between the terms and provisions
of this offer letter and the Confidentiality Agreement and the stock option agreement, the terms
and provisions of the Confidentiality Agreement and the stock option agreement will
control. Any amendment of this offer letter or any waiver of a right under this offer
letter must be in a writing signed by you and an officer of the Company or a member of the
Companys Board of Directors (other than yourself). North Carolina law will govern this offer
letter.
Ken Reali
December 11, 2009
Page 5
December 11, 2009
Page 5
We look forward to you joining the Company. If the foregoing terms are agreeable, please
indicate your acceptance by signing this offer letter and returning it to me, along with your
completed and signed Confidentiality Agreement
[Signature pages to follow]
Sincerely, TRANS1 INC. |
||||
By: | /s/ Richard Randall | |||
Richard Randall, Chief Executive Officer | ||||
AGREED TO AND ACCEPTED:
Employee
/s/ Ken Reali | ||||
Ken Reali | ||||
Signature Page to Employment Offer Letter
Exhibit A
Confidentiality Agreement