AGREEMENT, made this 21st day of June, 2004, by and between NeuroMetrix,
corporation (the "Company") and Shai N. Gozani (the Delaware
WHEREAS, the parties wish to set forth their understanding and agreement
regarding the employment of the Executive by the Company.
WHEREAS, the Executive is currently President and Chief Executive Officer
of the Company and the Company desires to continue to benefit from the
Executive's knowledge, experience, and abilities, and to ensure the Executive's
present and continued employment and service to the Company as President and
Chief Executive Officer and to compensate him therefor.
NOW THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
SECTION 1. EMPLOYMENT SERVICES.
During the Employment Period (as defined herein), the Executive will serve
as the Company's President and Chief Executive Officer, and will have such
duties and responsibilities as would normally attach to those positions,
including such duties and responsibilities as are customary among persons
employed in similar capacities for similar companies, subject to the authority
of the Board of Directors of the Company (the "Board"). The Executive will
faithfully and diligently carry out his duties and responsibilities and comply
with all of the reasonable and lawful directives of the Board, to which the
Executive will report. The Executive will, if so elected, serve as a director of
the Company and an officer or director of any subsidiary or affiliate of the
Company without compensation in addition to that provided in this Agreement. For
purposes of this Agreement, an "affiliate" of the Company means any corporation,
limited partnership, limited liability company or other entity engaged in the
same business as the Company, or a related business, and which is controlled by
or is under common control with the Company.
SECTION 2. TERM.
The Company shall employ the Executive, and the Executive accepts such
employment, continuing from the date first above written and ending at such time
as this Agreement has terminated under the provisions of Section 5 hereof (the
SECTION 3. PERFORMANCE.
During the Employment Period, the Executive shall devote his best efforts
and all of his business time and attention (except for vacation periods and
reasonable periods of illness or other incapacity) to the business of the
Company and its affiliates and will not engage in consulting
work or in any other trade or business for his own account or for or on behalf
of any other person, firm or corporation without the written consent of the
Board of Directors in each case, which shall not be granted if any such
activity, in the opinion of the Board of Directors, competes, conflicts or
interferes with the performance of his duties hereunder in any material way.
SECTION 4. COMPENSATION AND BENEFITS.
(a) SALARY. For services to the Company rendered by the
Executive in any capacity during the Employment Period, including without
limitation, services as a manager, officer, director or member of any
committee of the Company or of any subsidiary, affiliate or division
thereof, the Company will pay or cause to be paid to the Executive a base
salary at the rate of not less than $250,000 per annum (or such higher
amount as the Compensation Committee of the Board may establish from time
to time). The Executive's base salary for any partial year will be prorated
based upon the number of days elapsed in such year. The Executive's base
salary will be payable periodically in accordance with the Company's
customary payroll practices for its executives. Such base salary shall be
reviewed at least annually after the end of each fiscal year, starting with
the fiscal year ending
December 31, 2004, and may be increased based on the
Executive's performance, but not decreased, by the Board of Directors of
the Company (or the Compensation Committee thereof) in its discretion, to
be effective in the first pay period of the ensuing January, starting with
January 2005. The term "base salary" shall not include any payment or other
benefit which is denominated as or is in the nature of a bonus, incentive
payment, profit-sharing payment, performance share award, stock option,
stock appreciation right, retirement or pension accrual, insurance benefit,
other fringe benefit or expense allowance, whether or not taxable to the
Executive as income.
(b) ANNUAL PERFORMANCE BONUS. The Executive will be eligible to
receive an annual cash performance bonus of up to 50% of his then base
salary (the "Annual Performance Bonus"). The Compensation Committee shall
consider and make a bonus determination not later than 60 days after the
end of each fiscal year during the Employment Period, starting with the
fiscal year ending
December 31, 2004. Bonus awards shall be based upon the
performance by the Executive as measured against objective and reasonable
criteria mutually agreed and approved in advance by the Executive, and the
Compensation Committee of the Board of Directors. To the extent that less
than all of the criteria are achieved, the Executive shall be paid a pro
rata percentage of the Annual Performance Bonus. Notwithstanding the
foregoing, the Executive shall be entitled to the full Annual Performance
Bonus for any year in which a
(as defined in Subsection (e) below) is Sale
(c) OPTION GRANT. The Executive concurrently with entering into
this Agreement will be granted a non-qualified option (the "NSO Option") by
the Company to purchase 1,500,000 shares of the Company's Common Stock. The
terms of the NSO Option will be as set forth in the form of non-qualified
option attached hereto as EXHIBIT A.
(d) OTHER BENEFITS. In addition to the compensation described in
this Section 4, and such other amounts, not constituting base salary, as
may be provided to the Executive from time to time by the Board, the
Executive will be entitled during the Employment Period to participate in
any retirement plans, bonus plans, welfare benefit plans and other employee
benefit plans of the Company that may be in effect from time to time with
respect to executives of the Company generally, to the extent the Executive
is eligible under the terms of those plans. Executive shall also be
entitled to 15 days of paid vacation per year and receive a monthly
automobile allowance of no less than $600. The Company shall also reimburse
the Executive for all reasonable and necessary business expenses incurred
by him in the course of performing his duties hereunder.
(e) DEFINITIONS. A "
" shall mean the sale of all or Sale
substantially all of the Company's assets, a merger or combination with or
into another entity, unless such merger or combination does not result in a
change in ownership of the Company's voting securities of more than 50%, or
the sale or transfer of more than 50% of the Company's voting securities.
SECTION 5. TERMINATION.
The Executive's employment hereunder shall terminate under the following
(a) DEATH OR DISABILITY. This Agreement shall terminate upon the
death or disability of the Executive. "Disability" shall mean that the
Executive is no longer able to perform the essential functions of the
President and Chief Executive Officer of the Company for a continuous
period of six (6) months or a total of nine (9) months in any one-year
period. If any question arises as to whether the Executive has been so
disabled, the Executive shall submit to an examination by a physician
mutually acceptable to the Board of Directors of the Company and the
Executive and following such examination, the physician shall submit to the
Company and to the Executive a report in reasonable detail setting forth
his or her opinion as to whether the Executive was so disabled. Such report
shall for the purposes of this Agreement be conclusive of the issue.
Notwithstanding the foregoing, in the event of a disability (as defined
above), the Company shall take no action that violates the applicable
provisions of the Americans With Disabilities Act. If this Agreement
terminates due to the death or disability of the Executive, the Company
shall promptly pay to the Executive's estate or to the Executive any and
all amounts then owed to the Executive, including all accrued salary,
vacation pay, other benefits, and any applicable portion of the Annual
(b) TERMINATION BY THE COMPANY WITHOUT CAUSE. The Company may at
any time by action of a majority of the entire membership of its Board of
than the Executive, terminate the Executive's employment without Cause (as
defined below) by giving the Executive notice of the effective date of
termination (which effective date may be the date of such notice) (the
"Date of Termination"). A voluntary termination by the Executive within
sixty (60) days after the Company has reduced his status, reduced his
responsibilities, reduced his salary, relocated the Company's corporate
offices more than 35 miles from its current location, or breached any
provision of this Agreement (a "Deemed Termination Event") will be deemed
to be termination by the Company without Cause. The Executive will provide
ten (10) days prior written notice to the Company of any such voluntary
termination by reason of a Deemed Termination Event, and during such 10-day
period the Company shall have an opportunity to cure the Deemed Termination
Event. If a cure is effected within such 10-day period, the provisions of
this Section 5(b) shall no longer be applicable with respect to the Event
so cured. If the Company shall terminate the Executive without Cause
hereunder or if Executive terminates his employment due to a Deemed
Termination Event, the Company shall have the obligation to pay the
Executive the following:
(1) Through the Date of Termination the Company shall pay
the Executive his full base salary at his then current annual
rate of pay, and continue any benefits in effect at the time
notice of termination is given (except if the termination is due
to a reduction in salary, then the annual base salary used to
calculate the severance payment will be the base salary in effect
prior to the decrease in base).
(2) The Company shall, as severance payment, continue to
pay the Executive his then current annual base salary (except if
the termination is due to a reduction in salary, then the annual
base salary used to calculate the severance payment will be the
base salary in effect prior to the decrease in base) for the one
year period following the Date of Termination (less required
withholding), payable in periodic intervals consistent with those
then in effect for payment of salaries to the Company's
(3) The Company shall pay the Executive any and all amounts
then owed to the Executive, including all accrued salary,
vacation pay, other benefits and any applicable portion of the
Annual Performance Bonus.
(c) TERMINATION BY THE COMPANY FOR CAUSE. The Company may at any
time by action of a majority of the entire membership of its Board of
Directors, other than the Executive, terminate the Executive's employment
effective immediately for any of the following reasons (each of which is
referred to herein as "Cause") by giving the Executive written notice which
specifically identifies the Cause in reasonable detail:
(1) the willful breach of any provision of Section 3
(including but not limited to a continuing refusal to follow
reasonable and lawful directives of the Board);
(2) any act of intentional fraud or dishonesty with respect
to any aspect of the Company's or any affiliate's business; or
(3) conviction of a felony.
If the Executive's employment is terminated by the Company pursuant to this
Section 5(c), then the Company shall have no further obligations hereunder
accruing from and after the effective date of termination and shall have
all other rights and remedies available under this or any other agreement
and at law or in equity. Notwithstanding the foregoing, the Company shall
pay to the Executive on the effective termination date any and all amounts
then owed to the Executive, including all accrued salary, vacation pay,
other benefits and any applicable portion of the Annual Performance Bonus.
(d) TERMINATION BY THE EXECUTIVE. The Executive may terminate
this Agreement at any time upon thirty (30) days prior written notice to
the Company. The Board of Directors of the Company may in such event elect
to waive the period of notice, or any portion thereof, in which event the
Executive's date of termination shall be that date within the thirty (30)
day notice period determined by the Board. Upon termination of this
Agreement by the Executive for any reason other than the occurrence of a
Deemed Termination Event under Subsection 5(b) hereof, the Company shall
have no further obligations hereunder accruing from and after the effective
date of termination. Notwithstanding the foregoing, the Company shall pay
to the Executive on the effective termination date any and all amounts then
owed to the Executive, including all accrued salary, vacation pay, other
benefits and any applicable portion of the Annual Performance Bonus.
SECTION 6. NONCOMPETITION, NONDISCLOSURE AND INVENTIONS.
The Executive agrees that as a condition of his employment he will reaffirm
simultaneously herewith and be bound by the terms of a Noncompetition,
Nondisclosure and Inventions Agreement (the "Nondisclosure and Inventions
Agreement") in substantially the form set forth as EXHIBIT B hereto, the terms
of which are incorporated herein by reference. The Executive's obligations under
the Nondisclosure and Inventions Agreement shall survive the termination of this
Agreement as set forth therein.
SECTION 7. INDEMNIFICATION.
In addition to any indemnification provided to the Executive by the
Company's Certificate of Incorporation and/or By-laws, the Company will enter
into an indemnification agreement with the Executive in the form of EXHIBIT C.
SECTION 8. CONFLICTING AGREEMENTS.
The Executive hereby warrants and covenants that his employment by the
Company will not result in a breach of the terms, conditions or provisions of
any agreement to which the Executive is subject, and that he has not made and
will not make any agreements in conflict with this Agreement.
SECTION 9. SUCCESSORS AND ASSIGNS.
This Agreement is intended to bind and inure to the benefit of and be
enforceable by the Executive and the Company, except that the Executive may not
assign any of his rights or obligations under this Agreement and the Company may
not assign any of its rights or obligations under this Agreement without the
prior written consent of the other party.
SECTION 10. SEVERABILITY.
Whenever possible, each provision of this Agreement will be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under applicable law or rule in any jurisdiction, such invalidity,
illegality or unenforceability will not affect such provision in any other
jurisdiction, but this Agreement will be reformed, construed and enforced in
such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
SECTION 11. NOTICE.
Any notice provided for in this Agreement must be in writing and must be
either personally delivered, mailed by first class mail (postage prepaid and
return receipt requested), sent by facsimile transmission or sent by reputable
overnight courier service, to the recipient at the address indicated below:
To the Company: NeuroMetrix, Inc.
Waltham, MA 02451
Facsimile: (781) 890-1556
With a copy to: Goodwin Procter LLP
Boston, MA 02109
Attn: H. David Henken, P.C.
To the Executive: Shai N. Gozani, M.D., Ph.D.
187 Mason Terrace
Brookline, MA 02446
or to such other address or to the attention of such other person as the
recipient party shall have specified by prior written notice to the sending
party. Any notice under this Agreement will be deemed to have been given when so
delivered or sent or if mailed, five days after so mailed.
SECTION 12. AMENDMENTS AND WAIVERS.
Any provision of this Agreement may be amended or waived only with the
prior written consent of the Executive and a majority of the Compensation
Committee of the Board of
Directors of the Company. Notwithstanding the foregoing, the failure of either
party to require the performance of any term or obligation of this Agreement, or
the waiver by either party of any breach of this Agreement, shall not prevent
any subsequent enforcement of such term or obligation or be deemed a waiver of
any subsequent breach.
SECTION 13. ENTIRE AGREEMENT.
This Agreement and the exhibits hereto embody the complete agreement and
understanding between the parties and supersede and preempt any prior
understandings, agreements or representations by or between the parties, written
or oral, which may have related to the subject matter hereof in any way,
including the Employment Contract, dated
June 3, 1996, by and between the
Company and the Executive (the "Prior Employment Agreement"), which will be
treated as if it was amended and restated in its entirety as of the date hereof
by this Agreement, except with respect to Section 10(a) and, to the extent it
relates thereto, Section 10(c) of the Prior Employment Agreement, which will
continue in full force and effect following the date of this Agreement.
SECTION 14. GOVERNING LAW.
All questions concerning the construction, validity and interpretation of
this agreement will be governed by the internal law, and not the law of
conflicts, of the
. Commonwealthof Massachusetts
SECTION 15. REMEDIES.
Each of the parties to this Agreement will be entitled to enforce his or
its rights under this Agreement specifically, to recover damages (including,
without limitation, reasonable fees and expenses of counsel) by reason of any
breach of any provision of this Agreement and to exercise all other rights
existing in his or its favor. The parties hereto agree and acknowledge that
money damages may not be an adequate remedy for any breach or threatened breach
of the provisions of this Agreement and that any party may in his or its sole
discretion apply to any court of law or equity of competent jurisdiction for
specific performance and/or injunctive relief in order to enforce or prevent any
violations of the provisions of this Agreement.
SECTION 16. CAPTIONS.
The captions set forth in this Agreement are for convenience only, and
shall not be considered as part of this Agreement or as in any way limiting or
amplifying the terms and provisions hereof.
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In witness whereof, the parties have signed, sealed and delivered this
Agreement as of the date first above written.
By:/s/ Nicholas Alessi
Name: Nicholas Alessi
Title: Director of Finance and Treasurer
/s/ Shai N. Gozani
Shai N. Gozani, M.D., Ph.D.
First Amendment (“Amendment”) made as of December 31, 2008 to the Employment Agreement (“Employment Agreement”) dated as of June 21, 2004, by and between NeuroMetrix, Inc., a Delaware corporation with its principal executive office in Waltham, Massachusetts (the “Company”), and Shai N. Gozani (the “Executive”).
WHEREAS, the parties hereto desire to amend the Employment Agreement to comply with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended; and
WHEREAS, the parties hereto desire that this Amendment be deemed a modification and an amendment to the Employment Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the Company and the Executive agree as follows:
1. Subsection 4(b) of the Employment Agreement is hereby amended by replacing the second sentence of such subsection with the following:
“The Compensation Committee shall consider and make a bonus determination not later than 60 days after the end of each fiscal year during the Employment Period, starting with the fiscal year ending December 31, 2004, and the Company will pay the Annual Performance Bonus to the Executive after the end of such fiscal year and on or before the 15th day of the third month of the following fiscal year (e.g., a bonus determined within 60 days after the end of the fiscal year ending December 31, 2008 will be paid sometime between January 1, 2009 and March 15, 2009).”
2. Subsection 5(a) of the Employment Agreement is hereby amended by replacing the last sentence of such subsection with the following:
“If this Agreement terminates due to the death or disability of the Executive, the Company shall promptly, but in any case within 30 days of such termination, pay to the Executive’s estate or to the Executive any and all amounts then owed to the Executive, including all accrued salary, vacation pay, other benefits, and any applicable portion of the Annual Performance Bonus.”
3. Subsection 5(b)(2) of the Employment Agreement is hereby amended by replacing the second, third and fourth sentences of such subsection with the following:
“A voluntary termination by the Executive within sixty (60) days after the Company has materially reduced his authority, duties or responsibilities, materially reduced his salary, materially changed the geographic location at which the Executive must perform
services under this Agreement, or materially breached any provision of this Agreement (a “Deemed Termination Event”) will be deemed to be termination by the Company without Cause; provided that prior to such termination the Executive has given the Company thirty (30) days prior written notice of the occurrence of the Deemed Termination Event, and during such 30-day period the Company has not cured the Deemed Termination Event.”
4. Subsection 5(b)(3) of the Employment Agreement is hereby amended by deleting the subsection in its entirety and substituting therefore the following:
“(3) Within 30 days of the Date of Termination, the Company shall pay the Executive any and all amounts owed to the Executive as of the Date of Termination (other than the payments provided for in Subsection 5(b)(2) above), including all accrued salary, vacation pay, other benefits and any applicable portion of the Annual Performance Bonus.”
5. Section 5 of the Employment Agreement is hereby amended by adding the following subsection (e) to the end of such section:
“(e) Section 409A. Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive’s separation from service within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), the Company determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.”
6. All other provisions of the Employment Agreement shall remain in full force and effect according to their respective terms, and nothing contained herein shall be deemed a waiver of any right or abrogation of any obligation otherwise existing under the Employment Agreement except to the extent specifically provided for herein.
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IN WITNESS WHEREOF, this Amendment has been executed as a sealed instrument by the Company and by the Executive as of the date first above written.
/s/ Shai N. Gozani
Name: Shai N. Gozani
Title: President and CEO
/s/ Shai N. Gozani
Shai N. Gozani