Posner Employment Agreement
January 30, 2019
Mr. Brian Posner
On behalf of ElectroCore, Inc., a Delaware corporation (the Company), I am pleased to offer you a position as Vice President Finance for the Company effective as of March 11, 2019 (the Start Date); provided that effective as of April 1, 2019 you will assume the role of Chief Financial Officer. This offer and your employment are subject to the successful completion of the Companys standard background check. In this role, you will report directly to the Companys Chief Executive Officer.
This letter, when signed by you, will constitute our agreement (the Agreement) concerning your role as an employee of the Company.
1. Duties; Termination. During the term of this Agreement, you hereby agree to serve in the capacities noted above (or such other capacity as we shall mutually hereafter agree) and to perform such services as are customarily required of such positions and as are assigned to you by the Companys Chief Executive Officer or Board of Director.
As of the Start Date, and through the remainder of your term of employment with the Company, you shall devote your full business time to your duties to the Company or its affiliates and you shall not engage in any other business activities without the prior written consent of the Company. Either party may terminate this Agreement at any time by providing the other with written notice of such termination.
2. Compensation. As full compensation for your service to the Company hereunder and in consideration of the other covenants contained herein, you shall receive:
(a) during the term of your employment, an annual salary of $325,000, less applicable withholding taxes and other deductions, paid semi-monthly in accordance with the Companys customary payroll practices (as such amount may be adjusted from time to time at the Companys discretion);
(b) during the term of your employment, an annual target discretionary bonus of 40% of your annual base salary payable at the discretion of the Companys Board of Directors or Compensation Committee thereof. You must be employed with the Company at the time of the payout date in order to receive any such bonus payout;
(c) during the term of your employment, healthcare benefits as may be provided from time to time by the Company to its employees generally; participation in the Companys 401(k) plan; and paid time off (PTO) annually in accordance with the Companys policies in effect from time to time. A package describing certain of these benefits will be provided to you; and
(d) subject to the approval by the Compensation Committee of the Companys Board of Directors, a one-time grant of a stock option to purchase 105,000 shares of the Companys common stock, such options to vest 25% on the one year anniversary of your Start Date and the balance to vest in equal quarterly installments over the succeeding three year period (subject to your being employed by the Company on any applicable vesting date). Such option grant will be made pursuant to the Companys standard Stock Option Agreement (a copy of which will be provided to you after grant and which you will be required to execute as a condition to such grant) and its Omnibus Equity Incentive Plan and have an exercise price per share equal to the fair market value of the Companys common stock on the Start Date (based on the closing price of the Companys common stock on the Nasdaq Stock Market or such other national market on which the Companys stock then trades).
3. At-Will Employment. You acknowledge and agree that your employment with the Company is at will, meaning that either you or the Company (acting through its Board of Directors or an officer expressly authorized to so act) may terminate your employment with the Company at any time and for any reason (or no reason) upon notice to the other party.
4. Confidential Information and IP Assignment; Executive Severance Policy. You hereby agree to execute and be bound by the Companys standard Employee Confidentiality and Assignment Agreement, a copy of which has been provided to you. You acknowledge that such agreement contains certain post-employment restrictions, including a non-compete and non-solicitation agreement. As additional consideration for such covenants, the Company agrees that you shall be covered by the Companys Executive Severance Policy, as such policy may be in effect from time to time (the Severance Policy); provided, that, notwithstanding anything in the Severance Policy to the contrary, the Severance Period for all purposes of Section 2.24 of the Severance Policy as it applies to you shall be 12 months (and not 6 months) and the Severance Multiple payable to you for all purposes of Section 4.01 of the Severance Policy shall be 1.0 (instead of 0.5). A copy of the such policy, as currently in effect, has been provided to you. You acknowledge and agree that the Company reserves the right to amend such policy from time to time or to terminate such policy; provided, that no such amendment or termination shall reduce the amount of severance benefits payable to you upon an involuntary termination of employment without your prior consent.
5. Miscellaneous. This Agreement, together with the documents referred to herein, contains the entire agreement of the parties with respect to the subject matter hereof and may be amended only by a written instrument signed by you and the Company. Because of the personal nature of the services to be rendered by you under this Agreement, you may not assign this agreement without the prior written consent of the Company. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.
6. Governing Law; Jurisdiction. This Agreement shall be governed in accordance with the laws of the State of New Jersey. The parties hereto consent to the jurisdiction of the courts of the State of New Jersey for all disputes arising pursuant to this Agreement.
If you agree with the foregoing terms, please indicate such agreement by signing the enclosed duplicate original of this letter in the space provided and returning it to the Company.
Very truly yours,
|By:||/s/ Francis R. Amato|
Name: Francis R. Amato
Title: Chief Executive Officer
|Acknowledged and Agreed:|
|/s/Brian M. Posner|
|Brian M. Posner|
Employee Confidentiality and Assignment Agreement
In consideration and as a condition of my employment or continued employment by electroCore, Inc. and its affiliates (collectively, the Company), I agree as follows:
I UNDERSTAND THAT THIS AGREEMENT AFFECTS IMPORTANT RIGHTS. BY SIGNING BELOW, I CERTIFY THAT I HAVE READ IT CAREFULLY AND AM SATISFIED THAT I UNDERSTAND IT COMPLETELY.
IN WITNESS WHEREOF, the undersigned has executed this agreement as a sealed instrument as of the date set forth below.
|Signed:||/s/ Brian M. Posner|
|Brian M. Posner|
|Date:||January 30, 2019|