Employment Agreement between Avalon Pharmaceuticals, Inc. and David D. Muth (Executive Vice President and Chief Business Officer)
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Summary
Avalon Pharmaceuticals, Inc. offers David D. Muth the position of Executive Vice President and Chief Business Officer, starting September 21, 2006, with a base salary of $280,000 per year and eligibility for stock options and bonuses. The agreement outlines benefits, relocation assistance, and terms for termination, including severance and accelerated stock vesting under certain conditions. Employment is at-will, and specific definitions are provided for termination with or without cause, as well as for resignation for good reason, especially in the event of a change in control of the company.
EX-10.1 2 exhibit1.htm EX-10.1 EX-10.1
Exhibit 10.1
September 12, 2006
Via Federal Express
David D. Muth
611 SW 15th Street
Boca Raton, Florida 33486
Dear Dave:
On behalf of Avalon Pharmaceuticals, Inc. I am pleased to offer you the following position as an employee of the Company:
Job Title: | Executive Vice President and Chief Business Officer | |
Reporting to: | Kenneth C. Carter, President & CEO | |
Starting Date: | September 21, 2006 | |
Initial Starting Salary: | $280,000 per annum, subject to adjustment from time to time in the Company’s discretion | |
Classification: | Exempt | |
Equity: | Subject to the approval of the Compensation Committee of the Company’s Board of Directors, the Company will grant you options for 120,000 shares of Avalon Pharmaceuticals, Inc. Common Stock under the Company’s Stock Option Plan. These options will vest over a four (4) year period, effective the date of grant. The options will be available to you retroactively only upon the successful completion of the 90-day Introductory Period. The terms and conditions for any options will be those in the Company’s Plan, or as set by the Board. | |
Bonus Plan: | Eligibility and distribution of bonus is based on the achievement of corporate and individual objectives in accordance with the approved Avalon Pharmaceuticals Compensation Plan. You will be eligible for a bonus up to 35% of your base pay depending upon the completion of the approved goals. The bonus for 2006 will be prorated. | |
Benefits: | The Company provides a comprehensive benefits program, which includes standard medical and dental benefits, long- and short-term disability coverage, a 401(K) plan, and Employee Assistance Program, and a flexible benefits plan. Paid time off is also available to all employees. These programs will be provided in accordance with the terms and conditions set forth in each plan, and are subject to change at the Company’s discretion. Provided that underwriting approves your application, you will also receive benefit of Avalon’s salary continuation plan for executives. | |
Relocation: | The Company will pay for your moving expenses as outlined in Attachment A. | |
Termination: | Upon termination for any reason, the Company shall pay you within two weeks of such termination, your current base salary earned through the termination date, plus accrued vacation, if any, and other benefits or payments, if any, to which you are entitled as provided in accordance with the terms and conditions of such benefit plan. In the event you are terminated by the Company after the 90-day Introductory Period without “Cause” (as herein defined), or if you terminate your employment with the Company for “Good Reason” (as hereinafter defined), the Company shall immediately vest one half (1/2) of any shares granted to you under the Company’s Stock Option Plan that has not vested as of the date of your termination, shall continue to pay you your bi-weekly rate in effect at the time of termination for a period of six (6) months (“Severance”); provide you with outplacement services; provide and pay the Company’s portion of your health insurance for a period of six (6) months following such termination. You shall not be required to mitigate damages by seeking employment elsewhere. If you are terminated with cause, the Company shall pay you only your current base salary earned through the termination date, plus accrued vacation, if any, to which you are entitled as provided in accordance with the terms and conditions of such benefit plan. “Cause” shall include (i) your conviction of a felony, either in connection with the performance of your obligations to the Company or otherwise, which adversely affects your ability to perform such obligations or materially adversely affects the business activities, reputation, goodwill or image of the Company, (ii) your willful disloyalty, deliberate dishonesty, breach of fiduciary duty to the company (iii) your breach of the terms of this Agreement, or your failure or refusal to use your best efforts to carry out any material tasks that do not violate any other term of this agreement, provided such tasks are assigned to you by the Company in accordance with the terms hereof, which breach or failure continues for a period of more than thirty (30) days after your receipt of written notice thereof from the Company, (iv) the commission by you of any act of fraud, embezzlement or deliberate disregard of a rule or policy of the Company known | |
to you o te a majority of | r contained in a policy and procedure manual provided to you which results in material loss, damage or injury to the Company, or (v) the material breach by you of any of the material provisions of the Confidentiality Assignment of Inventions and Non-Competition Agreement. Termination of your employment by you shall constitute termination for “Good Reason” if such termination occurs (a) within eighteen months of a “Change in Control” (as hereinafter defined) (b) within three months of a material diminution in your responsibilities as Chief Business Officer, provided that such diminution is not in connection with the termination of your employment for Cause, (c) within three months of your principal work location changing to be more than 50 miles from your then current residence; or (d) in the event you should die while an employee of the Company. The Company shall notify you, within 10 days of receipt of your notice of intent to terminate your employment for Good Reason, if the Company disagrees with your intent to terminate pursuant to this paragraph. A “Change in Control” shall be deemed to have occurred if either: (i) any “person” (including, without limitation, any individual, sole proprietorship, partnership, trust, corporation, association, joint venture, or other entity, whether or not incorporated), or “group” of persons (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), becomes, after the date hereof, the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing fifty percent (50%) or more of the combined voting power of the Company’s then outstanding securities; (ii) during any two (2) year period, individuals who constitute the Board of Directors at the beginning of such period, together with any new directors elected or appointed during the period whose election or appointment resulted from a vacancy on the Board of Directors caused by the retirement, death, or disability of a director and whose election or appointment was approved by a vote of at least a majority of the directors then still in office who were directors at the beginning of the period, cease for any reason to constitu the Board of Directors; (iii) the Company sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of its assets to any person; (iv) the Company consolidates with, or merges with or into another entity, or any entity consolidates with, or merges with or into, the Company (a “Merger”), in which the owners of outstanding voting stock of the Company immediately prior to such Merger do not represent at least a majority of the voting power in the surviving entity after the Merger; or (v) the stockholders of the Company approve a plan of liquidation or dissolution. | |
Conflict: | You hereby acknowledge that you are not a party to any agreement that in any way prohibits or imposes any restrictions on your employment with the Company, and your acceptance hereof will not breach any agreements to which you are a party. | |
Employment Requirements And Period: | If you accept this position, you will be an employee at will, meaning you are not obligated to remain employed at the Company for any specific period of time. Likewise, the Company is not obligated to employ you for any specific period. | |
Other Provisions: | Employment will be contingent upon your signing the Avalon Pharmaceuticals, Inc. Confidentiality, Assignment of Inventions and Non-Competition Agreement. You also agree to be bound by all personnel policies that may be adopted from time to time. |
I look forward to having you as part of the team and believe you will play an important role in the growth of the Company.
Sincerely,
ON BEHALF OF AVALON PHARMACEUTICALS, INC.:
/s/ Kenneth C. Carter | September 21, 2006 | |
Kenneth C. Carter President & CEO | Date | |
ACCEPTED: | ||
/s/David D. Muth | September 21, 2006 | |
David D. Muth | Date |
Attachment A
Moving Assistance & Relocation
David Muth
September 2006
Sale of house
| • | Realtor fees, not to exceed 6% unless authorization is obtained for a higher rate |
| • | Closing costs, including attorney fees and stamp taxes |
Move
| • | Moving costs, including packing, unpacking, transportation, declared value insurance |
Employee must submit 3 bids from moving companies to Avalon
Avalon will provide insurance on the declared value of your household goods
| • | One week of temporary housing during your first week of employment plus reimbursement of up to $7,800 additional temporary housing. The Company is not obligated to pay this allowance if it is not utilized |
Does not include cost of phone, food or utilities
| • | Storage of household goods, if necessary, for up to 90 days while in temporary housing |
Purchase of new house
| • | Closing costs of new home |
| • | Reimbursement for up to 3 round trip flights and related expenses for your spouse to come to Maryland for house hunting trips. |
| • | Additional reimbursable fees include: title search, customary legal, notary, recording, transfer, necessary pre-purchase home inspections and other approved closing fees |
| • | Reimbursement up to a maximum of $1,000 for miscellaneous one-time expenses associated with moving into a new house (e.g. cost of re-keying the house, fees to establish telephone, gas, electric, cable services, etc.) |
| • | Reimbursement of origination fees not to exceed $2,000.00 |
| • | Discount points will be excluded |
Avalon Pharmaceuticals will gross-up relocation expenses, which are not deductible pursuant to Federal income tax law. In addition to the Federal income tax liability, Avalon Pharmaceuticals will gross-up certain reimbursed relocation expenses which you are unable to deduct in full or in part pursuant to state income tax law. If you are subject to additional FICA tax due to reimbursement of non-deductible relocation expenses, you will be grossed-up for the appropriate amount.
Initials
/s/KCC
/s/DDM
