Employment Agreement, dated June 19, 2020, by and between the Company and Alex Monteith
THIS EMPLOYMENT AGREEMENT (this “Agreement”) is entered into by and between BioSpecifics Technologies Corp. (the “Company”) and Alex Monteith (the “Executive”) as of June 19, 2020.
WHEREAS, the Company desires to employ the Executive as the Company’s Senior Vice President and Chief Business Officer and the Executive desires to serve in such capacity.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements hereinafter set forth, the Company and the Executive hereby agree as follows:
Notwithstanding the foregoing, if and to the extent required by Section 409A of the Code, if a Change of Control does not constitute a “change in control event” as defined by Section 409A of the Code or the lump sum payment in Section 7(a) would otherwise cause the Executive to incur penalties under Section 409A of the Code, such payment shall not be paid in a lump sum but shall be paid in equal installments in accordance with the payroll practices over the twelve (12)-month period following Executive’s termination date.
With regard to any event constituting Cause pursuant to clauses (1), (3), (4) or (6), the Executive shall have a period of 15 days after receiving written notice from the Company of such event in which he may correct such event if it is reasonably subject to cure (“Cure Period”). Cause shall not exist for purposes of this Section 13(a) unless the Board determines that: (i) the event constituting Cause is not subject to cure or (ii) after the Cure Period, the Executive has failed to cure the event constituting Cause.
(1)A material diminution by the Company of the Executive’s authority, duties or responsibilities;
(2) The requirement that the Executive report to any individual other than the CEO, another “C-Suite” executive or member of the Board;
(3)A material change in the geographic location at which the Executive must perform services under this Agreement, excluding for the avoidance of doubt, any travel for business in the course of performing the Executive’s duties for the Company;
(4)A material diminution in the Executive’s Base Salary, except for any diminution that is part of a broad-based diminution of base salary applicable to a majority of officers of the Company; or
(5)Any action or inaction that constitutes a material breach by the Company of this Agreement.
The Executive must provide written notice of termination for Good Reason to the Company within 45 days after the event constituting Good Reason. The Company shall have a period of 30 days in which it may correct the act or failure to act that constitutes the grounds for Good Reason as set forth in the Executive’s notice of termination. If the Company does not correct the act or failure to act, the Executive’s employment will terminate for Good Reason on the first business day following the Company’s 30-day cure period.
If to the Company, to:
BioSpecifics Technologies Corp.
Delaware Corporate Center II
2 Righter Parkway, Suite 200
Wilmington, DE 19803
Attn: Chair of the Board of Directors
With a copy (which shall not constitute notice) to:
Carl A. Valenstein
Morgan, Lewis & Bockius LLP
One Federal Street, Boston MA 02110-1726
If to the Executive, to the most recent address on file with the Company (with a copy to, which shall not constitute notice, Jeri L. Abrams, Giordano Halleran & Ciesla, 125 Half Mile Road, Red Bank, NJ 07701 ***@***), or to such other names or addresses as the Company or the Executive, as the case may be, shall designate by notice to each other person entitled to receive notices in the manner specified in this Section.
(Signature Page Follows)
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
BIOSPECIFICS TECHNOLOGIES CORP.
/s/ Joseph Truitt
Name: Joseph Truitt
Title: Chief Executive Officer
/s/ Alex Monteith
Name: Alex Monteith
SEPARATION OF EMPLOYMENT AGREEMENT AND GENERAL RELEASE
BioSpecifics Technologies Corp. (the “Company”) and Alex Monteith, his heirs, executors, administrators, successors, and assigns (collectively referred to throughout this Agreement as “you” or “your”), hereby enter into this Separation Agreement and General Release (the “Agreement”) to settle all issues in connection with all issues arising out of, or related to, your employment and termination of employment with the Company. You and the Company agree that:
1.Last Day of Employment. Your last day of work for the Company will be [DATE] (such date is your “Separation Date”). You will continue to receive your salary at your current regular rate of pay through the Separation Date or while you remain employed by the Company, and your current benefits will continue through that date.
2.Severance Payments. Provided you timely execute (and do not revoke) this Agreement (which includes a general release and waiver of claims and other promises herein), and otherwise comply with its terms, the Company will provide you with the following severance benefits: [Applicable severance benefits to be inserted here].
3.Taxes and Withholdings. All payments and benefits set forth in the Agreement will be paid or provided, less applicable withholding taxes, normal payroll deductions and amounts required by law to be withheld.
In consideration of the severance benefits set forth in Paragraph 2, to the fullest extent permitted by law you waive, release and forever discharge the Company and each of its respective past and current parents, subsidiaries, affiliates, and each of its and their respective past and current directors, officers, members, trustees, employees, representatives, agents, attorneys, employee benefit plans and such plans’ administrators, fiduciaries, trustees, recordkeepers and service providers, and each of its and their respective successors and assigns, each and all of them in their personal and representative capacities (collectively the “Company Releasees”) from any and all claims legally capable of being waived, grievances, injuries, controversies, agreements, covenants, promises, debts, accounts, actions, causes of action, suits, arbitrations, sums of money, attorneys’ fees, costs, damages, or any right to any monetary recovery or any other personal relief, whether known or unknown, in law or in equity, by contract, tort, law of trust or pursuant to federal, state or local statute, regulation, ordinance or common law, which you now have, ever have had, or may hereafter have, based upon or arising from any fact or set of facts, whether known or unknown to you, from the beginning of time until the date of execution of this Agreement, arising out of or relating in any way to your service with the Company, or the termination thereof (the “Released Claims”).
Without limiting the generality of the foregoing, this waiver, release, and discharge includes any claim or right, to the extent legally capable of being
waived, based upon or arising under any federal, state or local fair employment practices or equal opportunity laws, including, but not limited to, the Age Discrimination in Employment Act (“ADEA”), the Older Workers Benefit Protection Act (“OWBPA”), the Rehabilitation Act of 1973, the Worker Adjustment and Retraining Notification Act, 42 U.S.C. Section 1981, Title VII of the Civil Rights Act of 1964, the Equal Pay Act, the Employee Retirement Income Security Act (“ERISA”) (including, but not limited to, claims for breach of fiduciary duty under ERISA), the Uniformed Services Employment and Reemployment Rights Act of 1994, the Americans With Disabilities Act, the Family and Medical Leave Act of 1993, [ADD APPLICABLE STATE LAWS]
You also agree to waive any right to bring, maintain, or participate in a class action, collective action, or representative action against the Company and/or the Company Releasees to the fullest extent permitted by law. You agree that you may not serve as a representative of a class action, collective action, or representative action, may not participate as a member of a class action, collective action, or representative action, and may not recover any relief from a class action, collective action, or representative action. You further agree that if you are included within a class action, collective action, or representative action, you will take all steps necessary to opt-out of the action or refrain from opting in, as the case may be. You are not waiving any right to challenge the validity of this Paragraph 4(b) on any grounds that may exist in law and equity. However, the Company and the Company Releasees reserve the right to attempt to enforce this Agreement, including this Paragraph 4(b), in any appropriate forum.
You hereby represent and warrant that you are not aware of any claims you have or might have against the Company and/or the Company Releasees that are not included in the Released Claims.
Notwithstanding the generality of the foregoing, nothing herein constitutes a release or waiver by you of, or prevents you from making or asserting: (i) any claim or right you may have under COBRA; (ii) any claim or right you may have for unemployment insurance or workers’ compensation benefits (other than for retaliation under workers’ compensation laws); (iii) any claim to vested benefits under the written terms of a qualified employee pension benefit plan; (iv) any claim related to your rights (if any) as an equity holder of the Company or any of its Affiliates, (v) any claim or right you may have to indemnification and/or coverage under the Company’s insurance policies, (vi) any medical claim incurred during your employment that is payable under applicable medical plans or an employer-insured liability plan; (vii) any claim or right that may arise after the execution of this Agreement; (viii) any claim or right you may have under this Agreement; or (ix) any claim that is not otherwise waivable under applicable law. Further, nothing in this Agreement shall alter your rights with respect to any vested stock options or other vested equity awards granted pursuant to the Equity Plan and/or any successor equity plan, which rights shall
be governed by the terms of the Equity Plan and/or successor equity plan and the terms of the applicable award agreements.
5.No Additional Entitlements. You agree and represent that you have received all entitlements due from the Company relating to your service with the Company, including but not limited to, all wages earned, including without limitation all commissions and bonuses, sick pay, vacation pay, overtime pay, and any paid and unpaid personal leave for which you were eligible and entitled, and that no other entitlements are due to you other than as set forth in this Agreement.
6.Return of Property. Upon termination of your employment, you agree to promptly return to the Company all of its property, including, but not limited to, computers, cell phones, files, and documents, including any correspondence or other materials containing trade secrets of the Company, identification cards, credit cards, keys, equipment, software and data, however stored. To the extent you have any Company information or material stored on any PDA, personal computer, personal email, hard drive, thumb drive, cloud or other electronic storage device, you agree to cooperate with the Company in permanently deleting such information from such devices, subject to any Company litigation preservation directive then in effect.
7.Continuing Obligations. In consideration of the severance benefits set forth in Paragraph 2 of this Agreement, and subject to paragraph 9, you reaffirm and agree to remain bound by the terms and conditions of Section 15 of your Employment Agreement with the Company dated June 19, 2020 (the “Restrictive Covenants”), and you represent that you have not breached the Restrictive Covenants, which are incorporated herein by reference and expressly made part of this Agreement.
8.Confidentiality of the Agreement. Except as permitted in Paragraph 9 of this Agreement or if otherwise required by law, you agree that you shall not disclose the terms of this Agreement, or the circumstances giving rise to this Agreement, to any person other than your attorney, immediate family members, accountant, or financial advisor. Should you disclose any of the terms of this Agreement to your attorneys, immediate family members, accountants, or financial advisors, you agree to use your reasonable best efforts to ensure that those individuals abide by the confidentiality terms of this section. In the event that an action is brought pursuant to this section, all of the remaining provisions of this Agreement shall remain in full force and effect.
Nothing in this Agreement prohibits or prevents you from filing a charge with or participating, testifying, or assisting in any investigation, hearing, or other proceeding before the U.S. Equal Employment Opportunity Commission or a similar agency enforcing federal, state or local anti-discrimination laws. However, to the maximum extent permitted by law, you agree that if such an administrative claim or charge is made to such an anti-discrimination agency, you shall not be entitled to recover any individual monetary relief or other individual remedies in connection with such claim or charge, and in the event you obtain such monetary relief the Company will be entitled to an offset for the payments made pursuant to this Agreement. In addition, nothing in this Agreement restricts or prohibits you from initiating communications directly
with, responding to any inquiries from, providing testimony before, providing confidential information to, reporting possible violations of law or regulation to, or from filing a claim or assisting with an investigation directly with a self-regulatory authority or a government agency or entity, including without limitation, the U.S. Department of Labor, the National Labor Relations Board, the U.S. Department of Justice, the U.S. Securities and Exchange Commission, the U.S. Commodities Futures Trading Commission, the Financial Industry Regulatory Authority, the Occupational Safety and Health Administration, the U.S. Congress, any other federal, state, or local government agency or commission, and any agency Inspector General (collectively, the “Regulators”), or from making other disclosures that are protected under the whistleblower provisions of federal, state, or local law or regulation. You do not need the prior authorization of the Company to engage in conduct protected by this paragraph, and you do not need to notify the Company that you have engaged in such conduct. This agreement does not limit your right to receive an award from any Regulator that provides awards for providing information relating to a potential violation of the law. You recognize and agree that, in connection with any such activity outlined above, you must inform the Regulators, your attorney, a court or a government official that the information you are providing is confidential. Despite the foregoing, you are not permitted to reveal to any third-party, including any governmental, law enforcement, or regulatory authority, information you came to learn during the course of your service with the Company that is protected from disclosure by any applicable privilege, including but not limited to the attorney-client privilege and/or attorney work product doctrine. The Company does not waive any applicable privileges or the right to continue to protect its respective privileged attorney-client information, attorney work product, and other privileged information.
Additionally, pursuant to the federal Defend Trade Secrets Act of 2016, you shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that: (i) is made (1) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (2) solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made to your attorney in relation to a lawsuit for retaliation against you for reporting a suspected violation of law; or (iii) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Nor does this Agreement require you to obtain prior authorization from the Company before engaging in any conduct described in this paragraph, or to notify the Company that you have engaged in any such conduct.
10.Non-Disparagement: Except as permitted in Paragraph 9 of this Agreement, you covenant and agree that you shall not make any disparaging, false or abusive remarks or communications, written or oral, regarding the Company or its products, brands, trademarks, directors, officers, employees, consultants, advisors, licensors, licensees, customers, vendors or others with whom or with which they have a business relationship. The Company covenants and agrees that it will instruct each member of the Board not to make any disparaging, false or abusive
remarks or communications, written or oral, regarding you after the date on which your employment with the Company terminates for any reason.
11.Non-Admission. It is understood and agreed that neither the execution of this Agreement nor the terms of this Agreement constitute an admission of liability to you by the Company or the Company Releasees, and such liability is expressly denied. It is further understood and agreed that no person shall use the Agreement, or the consideration paid pursuant thereto, as evidence of an admission of liability, inasmuch as such liability is expressly denied
12.Notice to Company. Subject to paragraph 9 above, upon service on you, or anyone acting on your behalf, of any order or other legal process requiring you to divulge information prohibited from disclosure under this Agreement, you shall (unless legally prohibited from doing so) immediately notify the [Chair of the Company’s Board of Directors], of such service and of the content of any testimony or information to be provided pursuant to such order or process and will cooperate with the Company at reasonable times and places, taking into account your professional obligations, if the Company shall contest or seek to quash such order or other legal process.
13.Cooperation. You agree that upon the Company’s reasonable notice to you, you shall cooperate with the Company and its counsel (including, if necessary, preparation for and appearance at depositions, hearings, trials or other proceedings) at reasonable times and places, taking into account your professional obligations, with regard to matters that in its sole discretion the Company determines relate to or arise out of matters about which you have knowledge or with which you were involved during your service with the Company. In the event that such cooperation is required, you will be reimbursed for any reasonable lost income and reasonable travel expenses incurred in connection therewith.
14.Review of Separation Agreement: You acknowledge that:
you have been provided at least twenty-one (21) calendar days to review and consider this Agreement and, if you knowingly and voluntarily choose to do so, you may accept the terms of this Agreement before the twenty-one (21) day consideration period has expired;
you agree that changes to the Company’s offer contained in this Agreement, whether material or immaterial, will not re-start the twenty-one (21) day consideration period provided for above;
you may revoke this Agreement within seven (7) calendar days of signing this document by giving written notice to the undersigned. Any revocation must be submitted in writing, and state: “I hereby revoke my acceptance of our agreement” or words to that effect. The revocation must be personally delivered to, or mailed to the undersigned and postmarked within seven (7) calendar days after you sign this Agreement;
the Company advises you to consult with an attorney of your choice prior to signing this Agreement;
you fully understand the significance of all of the terms and conditions of this Agreement; and
you are signing this Agreement voluntarily and of your own free will and agree to all of the terms and conditions contained in it.
15.Complete Agreement. This Agreement sets forth the entire agreement between you and the Company with respect to the subject matter hereof and supersedes all prior negotiations, understandings and agreements, whether written or oral, relating to such subject matter, between you and the Company except for the Restrictive Covenants, Sections 16, 21, 22, 23, 24 and 25 of your Employment Agreement with the Company dated June 19, 2020, any equity award documents or agreements to which the Company is a party, and the Company’s insider trading plan or policy, each of which are incorporated herein by reference and remain in full force and effect, except as otherwise specifically provided herein. You acknowledge that neither the Company nor the Company Releasees or their agents or attorneys have made any promise, representation or warranty whatsoever, either express or implied, written or oral, which is not contained in this Agreement for the purpose of inducing you to execute the Agreement, and you acknowledge that you have executed this Agreement in reliance only upon such promises, representations and warranties as are contained herein, and that you are executing this Agreement voluntarily, free of any duress or coercion.
16.Governing Law. This Agreement shall be construed, performed, enforced and in all respects governed in accordance with the laws of the State of New York, without giving effect to the principles of conflicts of law thereof.
17.Severability. The provisions of this Agreement are severable, and if any part of it is found to be invalid or unenforceable, the other parts shall remain fully valid and enforceable. Specifically, should a court, arbitrator, or government agency conclude that a particular claim may not be released as a matter of law, it is the intention of the parties that the general release and the waiver of claims set forth above shall otherwise remain effective to release any and all other Released Claims.
18.Modification; Counterparts; Facsimile/PDF Signatures. It is expressly agreed that this Agreement may not be altered, amended, modified, or otherwise changed in any respect except by another written agreement that specifically refers to this Agreement, executed by authorized representatives of each of the parties to this Agreement. This Agreement may be executed in any number of counterparts, each of which shall constitute an original and all of which together shall constitute one and the same instrument. Execution of a facsimile or PDF copy shall have the same force and effect as execution of an original, and a copy of a signature will be admissible in any legal proceeding as if an original.
19.Breach. You acknowledge that if you materially breach your commitments to the Company agreed upon in Paragraphs 4, 6, 7, 8, 10, 12 or 13 you will forfeit the severance benefits set forth in Paragraph 2 and be subject to suit by the Company for damages and equitable relief relating to such breach. You further acknowledge that any breach by you of Paragraphs 7, 8 or 10 will cause irreparable damage to the Company and that in the event of such breach the Company
shall have, in addition to any and all remedies at law, the right to an injunction, specific performance or other equitable relief to prevent the violation of your obligations hereunder.
20.Waiver. A waiver by either party hereto of a breach of any term or provision of the Agreement shall not be construed as a waiver of any subsequent breach.
This Agreement is intended to comply with section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and its corresponding regulations, or an exemption thereto, and payments may only be made under this Agreement upon an event and in a manner permitted by section 409A of the Code, to the extent applicable. Severance benefits under this Agreement are intended to be exempt from section 409A of the Code under the “short-term deferral” exception, to the maximum extent applicable, and then under the “separation pay” exception, to the maximum extent applicable. Notwithstanding anything in this Agreement to the contrary, if required by section 409A of the Code, if you are considered a “specified employee” for purposes of section 409A of the Code and if payment of any amounts under this Agreement is required to be delayed for a period of six months after separation from service pursuant to section 409A of the Code, payment of such amounts shall be delayed as required by section 409A of the Code, and the accumulated amounts shall be paid in a lump-sum payment within 10 days after the end of the six-month period. If you die during the postponement period prior to the payment of benefits, the amounts withheld on account of section 409A of the Code shall be paid to the personal representative of your estate within sixty (60) days after the date of your death.
All payments to be made under this Agreement may only be made upon a “separation from service” under section 409A of the Code. For purposes of section 409A of the Code, each payment hereunder shall be treated as a separate payment, and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. In no event may you, directly or indirectly, designate the taxable year of a payment. Notwithstanding any provision of this Agreement to the contrary, in no event shall the timing of your execution of this Agreement, directly or indirectly, result in you designating the taxable year of payment of any amounts of deferred compensation subject to section 409A of the Code, and if a payment that is subject to execution of this Agreement could be made in more than one taxable year, payment shall be made in the later taxable year.
All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of section 409A of the Code, including, where applicable, the requirement that (i) any reimbursement be for expenses incurred during the period specified in this Agreement, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during a fiscal year not affect the expenses eligible for
reimbursement, or in-kind benefits to be provided, in any other fiscal year, (iii) the reimbursement of an eligible expense be made no later than the last day of the fiscal year following the year in which the expense is incurred, and (iv) the right to reimbursement or in-kind benefits not be subject to liquidation or exchange for another benefit.
22.Effective Date: This Agreement is effective on the eighth (8th) day after you sign and do not revoke this Agreement (the “Effective Date”).
23.Expiration of Offer: The offer set forth in this Agreement expires at 11:59 p.m. Eastern time on the later of (i) the twenty-first (21st) day after delivery of this Agreement to you, i.e., [INSERT DATE 21 DAYS FROM DELIVERY OF AGREEMENT]; or (ii) the seventh (7th) day after your Separation Date. If you fail to execute and return this Agreement to the Company within the time specified in this paragraph, the promises and agreements made by the Company herein will be revoked.
If the above accurately states our agreement, including the waiver and release, kindly sign below and return the original Agreement to me. Thank you for your efforts on behalf of the Company and I wish you the best in your future endeavors. If you should have any questions, please call me.
[signature page below]
BIOSPECIFICS TECHNOLOGIES CORP.
Chief Executive Officer