Employment Agreement with Ben Chang dated September 6, 2013
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the “Agreement”) is made and entered into as of September 6, 2013 by and between Rich Pharmaceuticals, Inc., a Nevada corporation (the “Company”) and Ben Chang (the “Employee”).
A. Employee has served as the Chief Executive Officer, Chief Financial Officer, Secretary and President of the Company since July 18, 2013, and the Company desires to enter into this Agreement to retain the services of the Employee in such capacities, and the Employee desires to continue to provide services to the Company in such capacities.
B. The Employee is willing to be employed by the Company on the terms and subject to the conditions set forth in this Agreement.
THE PARTIES AGREE AS FOLLOWS:
1. Positions and Duties.
1.1 Title. The Employee shall be employed by the Company as its Chief Executive Officer, Chief Financial Officer and President, and the Company agrees to employ and retain the Employee in such capacity. The Employee shall report to, and serve at the pleasure of, the Company’s Board of Directors (the “Board”).
1.2 Duties. Employee shall devote the majority of his business time, energy, and skill to the affairs of the Company to perform the duties required and necessary for a chief executive officer, chief financial officer and president of a public company in the Company’s industry, and shall ensure that Employee’s other business, charitable or professional activities do not materially interfere with the Employee’s performance of services under this Agreement. Employee’s duties as Secretary shall cease upon the Company’s appointment of a Secretary.
1.3 Term of Employment. The term of Employee's employment pursuant to this Agreement commenced on September 6, 2013 (the “Effective Date”), and shall expire on September 6, 2015, unless renewed or extended by the agreement of the parties hereto, or terminated earlier as provided herein.
1.4 Employee Indemnification. The Employee shall be entitled to all rights to indemnification as a Company officer as provided under the laws of the State of Nevada, the Company’s Certificate of Incorporation, the Company’s Bylaws, and the Company’s insurance policies.
2. Terms of Employment.
2.1 Definitions. For purposes of this Agreement, the following terms shall have the following meanings:
(a) “Accrued Compensation” shall mean any accrued Total Compensation, any benefits under any plan of the Company in which the Employee is a participant to the full extent of Employee’s rights under such plans, any accrued vacation pay, and any appropriate business expenses incurred by the Employee in connection with the performance of Employee’s duties hereunder, all to the extent unpaid on the date of termination.
(b) “Base Compensation” shall have the meaning set forth in Sections 3.1 and 3.2 hereof.
(c) “Change of Control” shall mean the consummation of an acquisition, a merger or consolidation of the Company with or into another entity or any other corporate reorganization, if more than 50% of the combined voting power of the continuing or surviving entity's securities outstanding immediately after such acquisition, merger, consolidation or other reorganization is owned by persons who in the aggregate owned less than 20% of the Company's combined voting power represented by the Company's outstanding securities immediately prior to such acquisition, merger, consolidation or other reorganization.
(d) “Death Termination” shall mean termination of the Employee’s employment because of the death of the Employee.
(e) “Disability Termination” means termination by the Company of the Employee’s employment by reason of the Employee’s incapacitation due to disability. The Employee shall be deemed to be incapacitated due to disability if at the end of any month the Employee is unable to perform substantially all of his or her duties under this Agreement in the normal and regular manner due to illness, injury or mental or physical incapacity, and has been unable so to perform for either (i) three consecutive full calendar months then ending, or (ii) 90 or more of the normal working days during the 12 consecutive full calendar months then ending. Nothing in this paragraph shall alter the Company’s obligations under applicable law, which may, in certain circumstances, result in the suspension or alteration of the foregoing time periods.
(f) “Termination For Cause” means termination by the Company of the Employee’s employment by reason of the Employee’s (i) dishonesty or fraud, (ii) gross negligence in the performance of his or her duties hereunder, (iii) material breach of this Agreement, (iv) intentional engagement in acts seriously detrimental to the Company’s operations, (v) conviction of a felony involving moral turpitude, or (vi) failure to comply with any lawful orders or directions of the Board that are not incompatible with his position with the Company or manifestly unreasonable or unethical, provided that the Board delivers to Employee a written notification specifying in sufficient detail such order or direction and the Employee has thirty (30) days within which to comply with such order or direction (or such reasonably shorter period of time if such ordered or directed task by its nature requires completion in less than thirty (30) days)).
(g) “Termination Other Than For Cause” means termination by the Company of the Employee’s employment for any reason other than as specified in Sections 2.1(c), (d), (e) or (i) hereof.
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(h) “Total Compensation” shall mean the Employee’s Base Salary (as defined in Section 3.1).
(i) “Voluntary Termination” means termination of the Employee’s employment by the voluntary action of the Employee other than by reason of a Disability Termination or a Death Termination.
2.2 Termination For Cause. The Company shall have the right to effect a Termination For Cause as provide in Section 2.1(f). Upon Termination For Cause, the Company shall pay the Employee Accrued Compensation, if any.
2.3 Termination Other Than For Cause. The Company shall have the right to effect a Termination Other Than For Cause upon thirty (30) days prior notice to the Employee. In the event of a Termination Other Than For Cause before the expiration of the Employment Agreement, the Company shall pay the Employee all Accrued Compensation, if any, and all Severance Compensation as provided in Section 2.6.
2.4 Disability Termination. The Company shall have the right to effect a Disability Termination by giving written notice thereof to the Employee. Upon Disability Termination, the Company shall pay the Employee all Accrued Compensation, if any.
2.5 Death Termination. In the event of the Employee’s death during the term of this Agreement, the Employee’s employment shall be deemed to have terminated as of the last day of the month during which his or her death occurs, and the Company shall promptly pay to the Employee’s estate Accrued Compensation, if any.
2.6 Severance Payments. In the event of the termination of Employee resulting from (i) a Change of Control; or (ii) Termination Other Than For Cause at any time during the first twelve (12) months of employment, Employee shall be paid severance payments equal to three (3) months of Base Salary. In the event of the termination of Employee resulting from (i) a Change of Control; or (ii) Termination Other Than For Cause at any time during the second twelve (12) months of employment, Employee shall be paid severance payments equal to six (6) months of Base Salary. The severance payment shall be paid pursuant to the Company’s normal payroll schedule for the applicable monthly period following the termination date.
3. Compensation and Benefits.
3.1 Base Salary. As payment for the services to be rendered by the Employee as provided in Section 1 and subject to the provisions of Section 2 of this Agreement, the Company shall pay the Employee a “Base Salary” at the rate of $22,916.66 per month (equivalent to $275,000 per year), payable on the Company’s normal payroll schedule. Employee and Company agree that the amount of $68,749.98 is due and payable by the Company to Employee as of the date of this Agreement as a bonus for services performed on behalf of the Company.
3.2 Option Compensation. As payment for the services to be rendered by the Employee as provided in Section 1 and subject to the provisions of this Agreement, the Company shall issue to Employee options to purchase up to 7,200 shares of Company common stock pursuant to the terms of the Company’s 2013 Stock Option Plan and the Plan award documents. The material terms of the options shall be as follows: (i) $8.00 exercise price; (ii) vesting 50% on grant/50% monthly for 24 months; and (iii) rights of cashless exercise. The number of options and exercise price shall be adjusted upon the effective date of the Company’s planned 416.7 to one forward stock split such that the number of options shall be 5,000,000 and the exercise price shall be $.0191984.
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3.2 Fringe Benefits.
(a) Fringe Benefits. The Employee shall not be eligible to participate in any of the Company’s benefit plans as are now generally available or later made generally available to senior officers of the Company, including, without limitation, medical, dental, life, and disability insurance plans, if any.
(b) Expense Reimbursement. The Company agrees to reimburse the Employee for all reasonable, ordinary and necessary travel and entertainment expenses incurred by the Employee in conjunction with Employee’s services to the Company consistent with the Company’s standard reimbursement policies. The Company shall pay travel costs incurred by the Employee in conjunction with his or her services to the Company consistent with the Company’s standard travel policy.
(c) Vacation. The Employee shall be entitled, without loss of compensation, to two (2) weeks of vacation per year. Unused vacation may be accrued by the Employee up to a maximum of four (4) weeks, when it will cease accruing until the Employee reduces the accrued, unused amount through use of vacation time.
3.3 Code Section 409A; Employee Taxes.
(a) To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A of the Code (together with Department of Treasury regulations and other official guidance issued thereunder, “Section 409A”). Notwithstanding any provision of this Agreement to the contrary, in the event that the Company determines in good faith that any compensation or benefits payable under this Agreement may not be either exempt from or compliant with Section 409A, the Company shall consult with Employee and, subject to the written consent of Employee, adopt such amendments to this Agreement or adopt other policies or procedures (including amendments, policies and procedures with retroactive effect), or take any other commercially reasonable actions necessary or appropriate to (i) preserve the intended tax treatment of the compensation and benefits payable hereunder, to preserve the economic benefits of such compensation and benefits, and/or to avoid less favorable accounting or tax consequences for the Company and/or (ii) to exempt the compensation and benefits payable hereunder from Section 409A or to comply with the requirements of Section 409A and thereby avoid the application of penalty taxes thereunder; provided, however, that this Section 3.3(a) does not, and shall not be construed so as to, create any obligation on the part of the Company to adopt any such amendments, policies or procedures or to take any other such actions or to indemnify Employee for any failure to do so.
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(b) Notwithstanding anything herein to the contrary, Employee acknowledges and agrees that in the event that any tax is imposed under Section 409A in respect to any compensation or benefits payable to Employee, whether under this Agreement or otherwise, then (i) the payment of such tax shall be solely Employee’s responsibility, and (ii) neither the Company, or their subsidiaries or affiliates, nor any of their respective past or present directors, officers, employees or agents shall have any liability for any such tax.
(c) Employee shall be solely responsible for the payment of all state and federal income tax related to his compensation under this Agreement and the Option Agreement.
4. Proprietary Information. The Employee shall as of the Effective Date or promptly thereafter execute and deliver to the Company the Company Employee Confidential Information and Inventions Agreement.
5. Miscellaneous.
5.1 Waiver. The waiver of the breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach of the same or other provision hereof.
5.2 Notices. All notices and other communications under this Agreement shall be in writing and shall be given by personal or courier delivery, facsimile or first class mail, certified or registered with return receipt requested, and shall be deemed to have been duly given upon receipt if personally delivered or delivered by courier, on the date of transmission if transmitted by facsimile, or three days after mailing if mailed, to the addresses of the Company and the Employee contained in the records of the Company at the time of such notice. Any party may Change such party’s address for notices by notice duly given pursuant to this Section 5.2.
5.3 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California applicable to contracts entered into and wholly to be performed within the State of California by California residents.
5.4 Survival of Obligations. This Agreement shall be binding upon and inure to the benefit of the executors, administrators, heirs, successors, and assigns of the parties; provided, however, that except as herein expressly provided, this Agreement shall not be assignable either by the Company (except to an affiliate or successor of the Company) or by the Employee without the prior written consent of the other party.
5.5 Counterparts. This Agreement may be executed in one or more counterparts and delivered by facsimile or PDF/electronic transmission, all of which taken together shall constitute one and the same Agreement.
5.6 Withholding. All sums payable to the Employee hereunder shall be reduced by all federal, state, local, and other withholdings and similar taxes and payments required by applicable law.
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5.7 Enforcement. If any portion of this Agreement is determined to be invalid or unenforceable, such portion shall be adjusted, rather than voided, to achieve the intent of the parties to the extent possible, and the remainder shall be enforced to the maximum extent possible.
5.8 Entire Agreement; Modifications. Except as otherwise provided herein or in the exhibits hereto, this Agreement represents the entire understanding among the parties with respect to the subject matter of this Agreement, and this Agreement supersedes any and all prior and contemporaneous understandings, agreements, plans, and negotiations, whether written or oral, with respect to the subject matter hereof. All modifications to the Agreement must be in writing and signed by each of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Employment Agreement as of the date set forth in the first paragraph.
RICH PHARMACUETICALS, INC.
By: /s/ David Chou
David Chou, a Director
EMPLOYEE
/s/ Ben Chang
Ben Chang
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