Attached files
file | filename |
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10-Q - FORM 10-Q - OMNI BIO PHARMACEUTICAL, INC. | c21308e10vq.htm |
EX-31.1 - EX-31.1 - OMNI BIO PHARMACEUTICAL, INC. | c21308exv31w1.htm |
EX-10.5 - EX-10.5 - OMNI BIO PHARMACEUTICAL, INC. | c21308exv10w5.htm |
EX-10.2 - EX-10.2 - OMNI BIO PHARMACEUTICAL, INC. | c21308exv10w2.htm |
EX-31.2 - EX-31.2 - OMNI BIO PHARMACEUTICAL, INC. | c21308exv31w2.htm |
EX-10.6 - EX-10.6 - OMNI BIO PHARMACEUTICAL, INC. | c21308exv10w6.htm |
EX-32.1 - EX-32.1 - OMNI BIO PHARMACEUTICAL, INC. | c21308exv32w1.htm |
EX-10.1 - EX-10.1 - OMNI BIO PHARMACEUTICAL, INC. | c21308exv10w1.htm |
EX-10.3 - EX-10.3 - OMNI BIO PHARMACEUTICAL, INC. | c21308exv10w3.htm |
Exhibit 10.4
July 15, 2011
Dr. James Crapo, MD
4650 S. Forest Street
Englewood, CO 80113
4650 S. Forest Street
Englewood, CO 80113
Subject: Employment Terms
Dear James:
On behalf of the Board of Directors of Omni Bio Pharmaceutical, Inc. (the Board), I would like to
clarify and further explain certain terms of your employment as outlined in your original offer
letter dated February 23, 2011. This letter outlines the terms of your employment relationship
with Omni, and supersedes and replaces the February 23rd letter in its entirety.
This letter confirms the Boards approval of your compensation as CEO of Omni Bio Pharmaceutical,
Inc. (Omni or Company).
Below is a summary of certain other terms of your employment with Omni.
Start date:
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March 1, 2011 | |
Position:
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Chief Executive Officer, reporting to the Board | |
Cash Compensation:
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$10,000 per month salary, plus $2,000 allowance per month for health insurance and other fringe benefits. | |
Confidentiality Agreement:
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In connection with the execution of this letter, as a condition of your employment with Omni, you will sign the Confidentiality and Inventions Assignment Agreement attached hereto as Exhibit A (the Confidentiality Agreement). | |
At-Will Employment:
|
Your employment with the Company is not for a specific period of time. Rather, your employment with the Company is at will, meaning that it could be terminated at any time, for any or no reason, at the option of either you or the Company. Notwithstanding the foregoing, the Company agrees that it shall not terminate you in bad faith in order to avoid payment of any Incentive Bonus (as defined below. You also should understand that the compensation and benefits described in this letter are subject to change during your employment at the discretion of the Company. |
Company Policies:
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You are expected to follow all applicable policies and procedures adopted by the Company from time to time, including without limitation policies relating to business ethics, conflict of interest, non-discrimination, confidentiality and protection of trade secrets. | |
Restricted Stock Units:
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300,000 restricted stock units (RSUs), vesting over three years as follows: 100,000 as of March 1, 2012, 100,000 as of March 1, 2013 and 100,000 as of March 1, 2014. Automatic vesting of all unvested RSUs upon change of control. Details regarding this restricted stock unit grant will be provided to you in a separate RSU agreement. | |
Restrictions:
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The Board recognizes that you will also be the chief executive officer of BioMimetix Pharmaceutical, Inc. (BioMimetix) and acknowledges that certain corporate opportunity and conflict of interest situations may arise out of such role. Therefore, you agree that you will not assist or participate in raising additional capital for BioMimetix until the earlier of: (1) the Company raising a total of $7 million; (2) 12 months from the date of the Companys initial investment in BioMimetix; (3) the Company executing an agreement with a strategic partner resulting in payments made to the Company; or (4) permission of the Board. | |
Incentive Bonus:
|
You will be eligible to receive an incentive bonus (the Incentive Bonus) in connection with the occurrence of a Liquidity Event (as defined below), so long as either (i) you have been continuously employed by the Company from your Start Date through the effective date of the Liquidity Event, or (ii) the Liquidity Event occurs with one or more parties introduced by you to the Company for purposes of a Liquidity Event prior to 12 months from the effective date of termination of your services other than for Cause (as defined below) (the Tail Period). For the avoidance of doubt, if (1) your employment with the Company terminates other than for Cause prior to the occurrence of a Liquidity Event or (2) the Liquidity Event occurs after the expiration of the Tail Period, you will not be entitled to receive payment of any Incentive Bonus. |
Bonus Calculation and Payment. The Incentive Bonus amount payable to you in connection with the
occurrence of a Liquidity Event will be equal to the Net Proceeds (defined below) multiplied by the
Applicable Percentage (defined below). Subject to the paragraph below dealing with escrows and
hold-backs, any Incentive Bonus payable hereunder will be paid to you in a single lump sum payment
as soon as administratively practicable after the occurrence of the Liquidity Event giving rise to
such payment, but in no event later than the 15th day of the third calendar month after
the close of the calendar year in which the Liquidity Event occurred. Payment of any Incentive
Bonus hereunder will be made from the general assets of the Company.
Definitions. The following definitions will apply for purposes of this Agreement.
(a) | Applicable Percentage means the percentage specified in the table below corresponding to
the amount of Net Proceeds received in connection with a Liquidity Event: |
Applicable | ||
Percentage | Net Proceeds | |
1.0% |
Less than or equal to $100 million | |
1.5% |
Greater than $100 million, less than or equal to $200 million | |
2.0% |
Greater than $200 million, less than or equal to $300 million | |
3.0% |
Greater than $300 million |
(b) Cause means, except to the extent specified otherwise by the Board, a finding by the Board
that the you (i) have breached the terms of your employment or service agreement with the Company,
(ii) has engaged in disloyalty to the Company, including, without limitation, fraud, embezzlement,
theft, commission of a felony or proven dishonesty in the course of your employment or service,
(iii) have disclosed trade secrets or confidential information of the Company to persons not
entitled to receive such information or (iv) have engaged in such other behavior detrimental to the
interests of the Company as the Board determines.
(c) | Liquidity Event means the consummation of: |
(1) | the sale (including in one or a series of related transactions) of all or
substantially all of the Companys consolidated assets to a person or a group of
persons acting in concert (other than a person or group affiliated with the Company); |
(2) | the sale or transfer (including in one or a series of related transactions)
to a person or a group of persons acting in concert (other than a person or group
affiliated with the Company) of Company equity securities
representing more than 50% of the combined voting power of the Companys then
outstanding equity securities entitled to vote generally in the election of
directors; |
(3) | the merger or consolidation of the Company with or into another entity,
unless immediately following such transaction, all or substantially all of the persons
who were the beneficial owners of the Companys outstanding voting securities
immediately before the transaction beneficially own, directly or indirectly, more than
50% of the combined voting power of the then outstanding voting securities (or
comparable equity interests) of the surviving or resulting entity (or its parent
entity); or |
(4) | the sale (including in one or a series of related transactions) of the
Companys intellectual property related to the use of the FDA approved drug Alpha-1
Antitrypsin to a person or a group of persons acting in concert (other than a person
or group affiliated with the Company). Net Proceeds will be aggregated over any
series of applicable transactions, and any difference due to an increase in the
Applicable Percentage as a result of such aggregation will be paid in connection with
the most recent transaction. |
By way of illustration for (4), if the Company sells applicable intellectual
property in a transaction with Net Proceeds of $50 million, assuming you are
eligible to receive an Incentive Bonus for the transaction, the Applicable
Percentage would be 1% and you would receive an Incentive Bonus of $0.5 million. If
the Company subsequently sells other applicable intellectual property in a second
transaction with Net Proceeds of $75 million, then, assuming you are eligible to
receive an Incentive Bonus for this transaction, the Applicable Percentage would be
1.5% (instead of 1%) on the aggregate Net Proceeds of $125 million, and the
aggregate Incentive Bonus would be $1.875 million. Therefore, in connection with
the second transaction, you would receive an Incentive Bonus of $1.375 million.
(d) | Net Proceeds means the fair market value, as of the date of the Liquidity Event and as
determined in good faith by the Board, of the aggregate consideration (whether cash, notes,
stock or other securities) actually received by the Company or its stockholders as a result of
the Liquidity Event, less all transaction fees and expenses incurred by the Company in
connection with such Liquidity Event, including legal, accounting and investment banking fees. |
Escrow or Hold-Back. Notwithstanding the foregoing, if any portion of the proceeds from a
Liquidity Event are deposited into an escrow account (whether established by the Company or any
purchaser or acquirer) or are subject to a hold-back by the purchaser or acquirer for distribution
upon the occurrence or satisfaction of any event, that portion of the proceeds shall be included in
calculating Net Proceeds, but a comparable portion of the incentive bonus amount shall be withheld
and released to you only as and when that
portion of the Liquidity Event proceeds are released from any escrow or hold-back arrangement.
Term of Bonus Arrangement. This Incentive Bonus arrangement will remain in effect until the
earlier of (i) until your employment by the Company is terminated for Cause or (ii) until the
expiration of the Tail Period, if any. The Company may modify this Incentive Bonus arrangement if
any such modification is, in the discretion of the Company, necessary or desirable to ensure the
compliance of this arrangement with the requirements of the Internal Revenue Code, including
Section 409A thereof, or any other applicable law or regulation.
Successors. All obligations of the Company under this Incentive Bonus arrangement will be binding
upon any successor to the Company, whether the existence of such successor is the result of merger,
consolidation, purchase of all or substantially all of the business or assets of the Company, or
otherwise.
Please acknowledge and accept the terms of your employment as outlined above by countersigning
below.
The Board is extremely excited about having you join our team.
Sincerely,
Vicki Barone
Chairperson
Chairperson
On Behalf of the Board of Directors of Omni Bio Pharmaceutical, Inc.
Agreed to:
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Exhibit A
Confidentiality and Inventions Assignment Agreement
[See attached]
Exhibit A
EMPLOYEE CONFIDENTIALITY
AND ASSIGNMENT OF INVENTIONS AGREEMENT
AND ASSIGNMENT OF INVENTIONS AGREEMENT
This Employee Confidentiality and Assignment of Inventions Agreement (the Agreement), dated
as of July 13, 2011, is intended to formalize in writing certain understandings and procedures
which are and will be in effect during the time Dr. James Crapo, MD (Employee) is employed by
Omni Bio Pharmaceutical, Inc., a Colorado corporation (the Company). In return for such
employment by the Company, Employee and the Company agree that:
1. At-Will Employment; No Conflict. Employee will perform for the Company such duties
as may be designated by the Company from time to time. Employee agrees that Employees employment
with the Company is for no specified term, and may be terminated by the Company at any time, with
or without cause, and with or without notice. Similarly, Employee may terminate employment with
the Company at any time, with or without cause and with or without notice. During Employees
period of employment by the Company, Employee will devote Employees best efforts to the interests
of the Company and will not engage in any other employment or in any activities determined by the
Company to be detrimental to the best interests of the Company without the prior written consent of
the Company.
2. Prior Work. All previous work, if any, done by Employee for the Company relating
in any way to the conception, design, development or support of products for the Company is the
property of the Company.
3. Proprietary Information. Employees employment creates a relationship of
confidence and trust in Employee for the benefit of the Company with respect to any information:
(a) Applicable to the business of the Company; or
(b) Applicable to the business of any client or customer of the Company, which may be
disclosed to Employee by the Company or by any client or customer of the Company, or learned by
Employee in such context during the period of Employees employment.
All of such information has commercial value in the business in which Company is engaged and
is referred to as Company Proprietary Information in this Agreement. By way of illustration, but
not limitation, Company Proprietary Information includes any and all technical and non-technical
information including patents, copyrights, trade secrets, and proprietary information, techniques,
sketches, drawings, models, inventions, know-how, processes, apparatus, equipment, algorithms,
software programs, software source documents, and formulae related to the current, future and
proposed products and services of the Company, and includes, without limitation, its respective
information concerning research, experimental work, development, design details and specifications,
engineering, financial information, procurement requirements, purchasing manufacturing, customer
lists, business forecasts, sales and merchandising and marketing plans and information. Third
Party Proprietary Information
includes proprietary or confidential information of any third party who may disclose such
information to the Company or Employee in the course of the Companys business.
4. Nondisclosure of Proprietary Information. All Company Proprietary Information is
the sole property of the Company, its assigns, and the Company, its assigns and its customers will
be the sole owner of all patents, copyrights, maskworks, trade secrets and other rights in
connection therewith. Employee hereby assigns to the Company any rights Employee may have or
acquire in such Company Proprietary Information. At all times, both during Employees employment
by the Company and after termination of such employment, Employee will keep in confidence and trust
all Company Proprietary Information and Third Party Proprietary Information, and Employee will not
use or disclose any Company Proprietary Information or Third Party Proprietary Information or
anything directly relating to it without the written consent of the Company, except as may be
necessary in the ordinary course of performing Employees duties as an employee of the Company.
Notwithstanding the foregoing, it is understood that, at all such times, Employee is free to use
information which is generally known in the trade or industry not as a result of a breach of this
Agreement. Outside of employment by the Company and after termination of employment with the
Company, Employee may use the general skill, knowledge, know-how and experience acquired during
employment with the Company, provided that such use (a) does not relate (i) directly to the
business of the Company or (ii) to the Companys actual or demonstrably anticipated research or
development or (b) does not result from any work performed by Employee for the Company.
5. Return of Materials. Upon termination of Employees employment or at the request
of the Company before termination, Employee will deliver to the Company all written and tangible
material and copies of all intangible records (e.g., in electronic form) in Employees possession
incorporating any Company Proprietary Information or otherwise relating to the Companys business.
6. Inventions, Ideas, and Expressions of Ideas. As used in this Agreement, (i) the
term Inventions, Ideas, and Expressions of Ideas means any and all new or useful art, discovery,
improvement, technical development, or invention, whether or not patentable, and all related
know-how, designs, maskworks, trademarks, formulae, processes, manufacturing techniques, trade
secrets, ideas, artwork, software or other copyrightable or patentable works, and (ii) the term
Specified Inventions means any Inventions, Ideas and Expressions of Ideas arising out of or
related to alpha-1 antitrypsin (AAT), including, but not limited to, compositions, therapies,
kits and methods of use thereof including, but not limited to, AAT, any derivative thereof, any
peptide thereof, any fragment thereof, any fusion protein thereof, any mutant thereof, any antibody
or antibody fragment derived thereof, any aptamer derived thereof, any primer or other molecule for
generating thereof, and any compositions (e.g. therapeutic drug, therapeutic use or otherwise) or
combinations therapeutic or otherwise thereof comprising, in each case including, incorporating or
otherwise making, purifying, generating, using or commercializing related to any Specified
Invention thereto.
7. Disclosure of Prior Inventions. Employee has identified on Exhibit A all
Inventions, Ideas, and Expressions of Ideas relating in any way to the Companys business or
demonstrably anticipated research and development related to the Specified Inventions that were
made by Employee prior to employment with the Company (Prior Inventions), and Employee
represents that such list is complete. Employee represents that Employee has no rights in any
such Inventions, Ideas, and Expressions of Ideas other than those Prior Inventions specified in
Exhibit A. If there is no such list on Exhibit A, Employee represents that Employee has made no
such Prior Inventions at the time of signing this Agreement.
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8. Ownership of Company Inventions; License of Prior Inventions. Employee
acknowledges that all original works of authorship related to the Specified Inventions that are
made by Employee (solely or jointly with others) within the scope of employment and that are
protectable by copyrights are works made for hire as that term is defined in the United States
Copyright Act (17 USCA § 101). Employee hereby agrees promptly to disclose and describe to the
Company, and hereby assigns and agrees to assign to the Company or its designee, Employees entire
right, title, and interest in and to all Specified Inventions and any associated intellectual
property rights that Employee may solely or jointly conceive, develop or reduce to practice during
the period of employment with the Company (a) that relate at the time of conception or reduction to
practice of the invention to the Companys business or actual or demonstrably anticipated research
or development, or (b) that were developed on any amount of the Companys time or with the use of
any of the Companys equipment, supplies, facilities or trade secret information, or (c) that
resulted from any work Employee performed for the Company (Company Inventions). Employee agrees
to grant the Company or its designees a royalty free, irrevocable, worldwide license (with rights
to sublicense through multiple tiers of distribution) to practice all applicable patent and patent
applications, know-how, copyright and other intellectual property rights relating to any Prior
Inventions that Employee incorporates, or permits to be incorporated, in any Company Inventions.
Notwithstanding the foregoing, Employee agrees that Employee will not incorporate, or permit to be
incorporated, such Prior Inventions in any Company Inventions without the Companys prior written
consent.
9. Future Inventions. Employee recognizes that Company Inventions or Company
Proprietary Information relating to Employees activities while working for the Company and
conceived or made by Employee, alone or with others, within one year after termination of
employment may have been conceived in significant part while employed by the Company. Accordingly,
Employee agrees that such post employment inventions and proprietary information will be presumed
to have been conceived during employment with the Company and are to be assigned and are hereby
assigned to the Company unless and until Employee has established the contrary.
10. Inventions, Ideas, and Expression of Ideas. Notwithstanding any other language in
this Agreement, the Company will have rights to all Inventions, Ideas, and Expression of Ideas
related to AAT and AAT recombinant. Inventions, Ideas and Expression of Ideas in all other fields
including metalloporphyrins remain the exclusive property of the Employee.
11. Cooperation in Perfecting Rights to Inventions.
(a) Employee agrees to perform, during and after employment, all acts deemed necessary or
desirable by the Company to permit and assist it, at its expense, in obtaining and enforcing the
full benefits, enjoyment, rights and title throughout the world in the Inventions, Ideas, and
Expressions of Ideas hereby assigned to the Company. Such acts may include, but are not limited
to, execution of documents and assistance or cooperation in the
registration and enforcement of applicable patents, copyrights, maskworks or other legal
proceedings.
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(b) In the event that the Company is unable for any reason to secure my signature to any
document required to apply for or execute any patent, copyright, maskwork or other applications
with respect to any Inventions, Ideas, and Expressions of Ideas (including improvements, renewals,
extensions, continuations, divisions or continuations in part thereof), Employee hereby irrevocably
designates and appoints the Company and its duly authorized officers and agents as Employees
agents and attorneys-in-fact to act for and on Employees behalf and instead of Employee, to
execute and file any such application and to do all other lawfully permitted acts to further the
prosecution and issuance of patents, copyrights, maskworks or other rights thereon with the same
legal force and effect as if executed by Employee.
12. No Violation of Rights of Third Parties. Employee agrees that performance of all
the terms of this Agreement and as an employee of the Company does not and will not breach any
agreement to keep in confidence proprietary information, knowledge or data acquired by Employee
prior to employment with the Company, and Employee will not disclose to the Company, or induce the
Company to use, any confidential or proprietary information or material belonging to any previous
employer or others. Employee is not a party to any other agreement that will interfere with
Employees full compliance with this Agreement. Employee agrees not to enter into any agreement,
whether written or oral, in conflict with the provisions of this Agreement.
13. Survival. This Agreement (a) will survive Employees employment by the Company,
(b) does not in any way restrict Employees right or the right of the Company to terminate
Employees employment at any time, for any reason or for no reason, (c) inures to the benefit of
successors and assigns of the Company, and (d) is binding upon Employees heirs and legal
representatives.
14. Post-Employment Disclosure. Employee agrees to disclose promptly in writing to
the Company all Inventions, Ideas, and Expressions of Ideas made or conceived by Employee during
the term of employment by the Company and for one year thereafter, whether or not Employee believes
such Inventions, Ideas, and Expressions of Ideas are subject to this Agreement, to permit a
determination by the Company as to whether or not the Inventions, Ideas, and Expressions of Ideas
are the property of the Company.
15. Injunctive Relief. A breach of any of the promises or agreements contained herein
will result in irreparable and continuing damage to the Company for which there will be no adequate
remedy at law, and the Company shall be entitled to injunctive relief and/or a decree for specific
performance, and such other relief as may be proper (including monetary damages if appropriate).
16. Notices. Any notice required or permitted by this Agreement must be in writing
and must be delivered as follows with notice deemed given as indicated: (a) by personal delivery
when delivered personally; (b) by overnight courier upon written verification of receipt; (c) by
telecopy, facsimile or other electronic transmission upon acknowledgement of receipt of such
transmission; or (d) by certified or registered mail, return receipt requested, upon verification
of
receipt. Notices to Employee may be sent to the most recent address of Employee in the
Companys records or such other address as Employee may specify in writing. Notices to the Company
will be sent to the Companys President or to such other address as the Company may specify in
writing.
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17. Governing Law. This Agreement will be governed in all respects by the laws of the
United States of America and by the laws of the State of Colorado, as such laws are applied to
agreements entered into and to be performed entirely within Colorado without regards to the
conflict of laws provisions thereof.
18. Severability. Should any provisions of this Agreement be held by a court of law
to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining
provisions of this Agreement will not be affected or impaired thereby.
19. Waiver. The waiver by the Company of a breach of any provision of this Agreement
by Employee will not operate or be construed as a waiver of any other or subsequent breach by
Employee.
20. Entire Agreement; Amendment. This Agreement represents the entire understanding
of the parties with respect to the subject matter of this Agreement and supersedes all previous
understandings, written or oral. This Agreement may be amended or modified only with the written
consent of both Employee and the Company. No oral waiver, amendment or modification shall be
effective under any circumstances whatsoever.
[The remainder of this page is intentionally left blank.]
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The parties certify and acknowledge that they have carefully read all of the provisions of
this Agreement and they understand and will fully and faithfully comply with such provisions.
OMNI BIO PHARMACEUTICAL, INC. | EMPLOYEE: | |||||||||
By:
|
By: | |||||||||
Name: | Dr. James Crapo, MD | |||||||||
Title: | 4650 S. Forest Street | |||||||||
Englewood, CO 80113 |
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Exhibit A
PRIOR INVENTIONS
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