SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): January 13, 2017
(Exact Name of Registrant as Specified in Charter)
(State or Other Jurisdiction
120/121 Baggot Street Lower
Dublin 2 Ireland
(Address of Principal Executive Offices)(Zip Code)
+353 (1) 659 9446
Registrants Telephone Number
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
|☐||Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)|
|☐||Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)|
|☐||Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))|
|☐||Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))|
|Item 5.02||Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.|
On January 13, 2017, Presbia PLC (the Company) and Vladimir Feingold, Chief Technology Officer and a director of the Company reached a mutual agreement by which Mr. Feingold resigned as Chief Technology Officer and transitioned to become a consultant effective as of January 13, 2017. Mr. Feingold will continue to serve as a member of the Companys board of directors.
In connection with Mr. Feingolds resignation, the Company and Mr. Feingold entered into a Separation and General Release Agreement and a Consulting Agreement. The Separation and General Release Agreement provides for, among other things, (i) the payment of his 2016 annual bonus in the range of $20,472 to $40,944 depending on the Boards determination of the achievement of certain 2016 personal development and corporate goals, (ii) January 13, 2017 as the last date of employment, (iii) general release by Mr. Feingold and (iv) a consulting agreement. The Consulting Agreement, provides for, among other things, (i) an initial one-year term, which shall automatically renew for successive one-year terms, unless terminated in accordance with the provisions of the Consulting Agreement, (ii) a $35,000 monthly consulting fee for the services specified in the applicable statement of work, including services related to regulatory and IP-related matters, (iii) termination by the Company upon sixty days notice and termination by Mr. Feingold upon thirty days notice, and (iv) the payment of the balance of the consulting fees for the initial term (as defined in the Consulting Agreement), if the Company terminates the Consulting Agreement without cause (as defined in the Consulting Agreement) during the initial term.
The above descriptions of the terms of the Separation and General Release Agreement and Consulting Agreement do not purport to be complete and are qualified in their entirety by reference to the full text of such agreements, copies of which are filed as exhibits to this Current Report on Form 8-K.
Item 9.01. Financial Statements and Exhibits.
10.1 Separation and General Release Agreement dated January 13, 2017, by and between Presbia PLC and Vladimir Feingold.
10.2 Consulting Agreement dated January 13, 2017, by and between Presbia PLC and Vladimir Feingold.
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
|Title:||Chief Financial Officer|
Dated: January 18, 2017
7700 Irvine Center Drive, Suite 700
Irvine, CA 92618
January 13, 2017
Mr. Vladimir Feingold
c/o PresbiBio, LLC
7700 Irvine Center Drive, Suite 700
Irvine, CA 92618
|RE:||Separation and General Release Agreement|
Further to our on-going discussions of a potential transition from an executive officer role to a more limited consulting role, while continuing to serve on the board of directors of Presbia PLC, we mutually agree that your employment with PresbiBio, LLC, a subsidiary of Presbia PLC (hereafter Company) ended effective as of January 13, 2017. This Separation and General Release Agreement (the Agreement) confirms the terms of the separation of your employment, including the payment and consulting opportunity described in paragraph 3 below that you will receive if you sign and return this Agreement to the Company no later than 21 days from today and do not revoke this Agreement during the 7-day revocation period described below in paragraph 6.
By signing, delivering and not revoking this Agreement, you will be entering into a binding agreement with the Company and will be agreeing to the terms and conditions in the numbered paragraphs below, including the general release of claims in paragraphs 4, 5, and 6. Therefore, you are advised to consult with an attorney of your choice before signing this Agreement. If you choose not to sign and return this Agreement within the required time-period or if you revoke your acceptance of this Agreement, you will not receive the payment or consulting opportunity described in paragraph 3.
1. Last Day of Employment. You acknowledge that you resigned from your employment with the Company as of January 13, 2017 (the Separation Date). You shall remain on the Companys health insurance plan through January 13, 2017, at which time you will be eligible for COBRA at your own expense. Information about COBRA will follow under separate cover. Participation in all other Company benefits ends as of the Separation Date.
2. Final Salary/Wages; Vacation Pay. You have received your final pay check as of the Separation Date, which includes payment for all salary/wages that you earned through the Separation Date, less applicable withholdings and deductions. All unused and accrued vacation shall be paid to you upon execution of this Agreement. You will receive these payments even if you do not enter into this Agreement.
3. Consideration. If you choose to sign and return this Agreement within the required time-period, do not revoke this Agreement and abide by the other terms of this Agreement, the Company agrees to provide you with the following: (a) 25% of your available bonus for achievement of your personal development goals for 2016, which equates to not less than $20,472; (b) 25% of your available bonus which may range from $0 to $20,472 if, and to the extent that, the Company achieved its corporate goals for 2016 as set
forth in the Companys internal bonus plan measured in the first quarter of 2017, such sum, if any, to be paid to you by March 31, 2017, and to be calculated and paid consistent with the bonus treatment of other of the Companys senior executives; and (c) the consulting opportunity available to you as set forth in the annexed Independent Contractor Services Agreement (the Consulting Agreement). You acknowledge that you are not otherwise entitled to this payment or consulting opportunity and that the Company would not agree to provide you with the payment or consulting opportunity as set forth in the annexed Consulting Agreement without your general release of claims and other promises in this Agreement. You agree that the terms of the Consulting Agreement constitute good and valuable consideration for your general release of claims and other promises in this Agreement.
4. General Release of Claims. In exchange for the consideration described in paragraph 3 above to which you are not otherwise entitled, you (for yourself and your heirs, executors, administrators, beneficiaries, personal representatives and assigns) hereby completely, forever, irrevocably and unconditionally release and discharge, to the maximum extent permitted by law, the Company, the Companys past, present and future parent organizations, subsidiaries, affiliated entities, managers, related companies and divisions and each of their respective past, present and future officers, directors, employees, shareholders, trustees, members, partners, attorneys and agents (in each case, individually and in their official capacities) and each of their respective employee benefit plans (and such plans fiduciaries, agents, administrators and insurers, individually and in their official capacities), as well as any predecessors, future successors or assigns or estates of any of the foregoing (the Released Parties) from any and all claims, actions, charges, controversies, causes of action, suits, rights, demands, liabilities, obligations, damages, costs, expenses, attorneys fees, damages, and obligations of any kind or character whatsoever, that you ever had, now have or may in the future claim to have by reason of any act, conduct, omission, transaction, agreement, occurrence or any other matter whatsoever occurring up to and including the date you sign this Agreement. This general release of claims includes, without limitation, any and all claims:
|||of discrimination; harassment; retaliation; or wrongful termination;|
|||for breach of contract, whether oral, written, express and implied; breach of covenant of good faith and fair dealing, both express and implied; promissory estoppel; negligent or intentional infliction of emotional distress; fraud; negligent or intentional misrepresentation; negligent or intentional interference with contract or prospective economic advantage; unfair business practices; defamation; libel or slander; negligence; assault; battery; invasion of privacy; personal injury; compensatory or punitive damages, or any other claim for damages or injury of any kind whatsoever;|
|||for violation or alleged violation of any federal, state, local or municipal statute, rule, regulation or ordinance, including, but not limited to, the Age Discrimination in Employment Act of 1967, the Older Workers Benefit Protection Act of 1990, Title VII of the Civil Rights Act of 1964, the Civil Rights Acts of 1991, the Americans with Disabilities Act, the Fair Labor Standards Act, the Equal Pay Act, the Lilly Ledbetter Fair Pay Act, the Fair Credit Reporting Act, the Worker Adjustment and Retraining Notification Act, the Family & Medical Leave Act, the Sarbanes-Oxley Act of 2002, the federal False Claims Act, the Genetic Information Nondiscrimination Act, the California Fair Employment and Housing Act, the California Family Rights Act, the California Labor Code, the California Business and Professions Code, the California Military Leave Law, the California Whistleblower Protection Act, and the California Equal Pay Law, in each case as such laws have been or may be amended;|
|||for employee benefits, including, without limitation, any and all claims under the Employee Retirement Income Security Act of 1974 (excluding COBRA);|
|||except as set forth in the Consulting Agreement, any non-vested ownership interest in the Company, contractual or otherwise, including, but not limited to, claims to stock, options, or other equity securities or interests;|
|||arising out of or relating to any promise, agreement, offer letter, contract (whether oral, written, express or implied), understanding, personnel policy, or employee handbook;|
|||relating to or arising from your employment with the Company, the terms and conditions of that employment, and the termination of that employment, including, without limitation, any and all claims for discrimination, harassment, retaliation or wrongful discharge under any common law theory, public policy or any federal state or local statute or ordinance not expressly listed above; and|
|||any and all claims for monetary recovery, including, without limitation, attorneys fees, experts fees, medical fees or expenses, costs and disbursements.|
You expressly acknowledge that this general release of claims includes any and all claims arising up to and including the date you sign this Agreement which you have or may have against any of the Released Parties, whether such claims are known or unknown, suspected or unsuspected, asserted or unasserted, disclosed or undisclosed. By signing this Agreement, you expressly waive any right to assert that any such claim, demand, obligation or cause of action has, through ignorance or oversight, been omitted from the scope of this release and you further waive any rights under statute or common law principles that otherwise prohibits the release of unknown claims.
This general release of claims does not apply to, waive or affect: any rights or claims that may arise after the date you sign this Agreement; any claim for workers compensation benefits (but it does apply to, waive and affect claims of discrimination and/or retaliation on the basis of workers compensation status); claims for unemployment benefits; claims for indemnification in connection with your service as an officer and/or director; or any other claims or rights that by law cannot be waived in a private agreement between an employer and employee; or your rights to any vested benefits to which you are entitled under the terms of the applicable employee benefit plan (the Excluded Claims). This general release of claims also does not apply to, waive, affect, limit or interfere with your rights under paragraph 11 below.
5. Further Release By You Of the Released Parties. You expressly acknowledge that, in further consideration of the payment and consulting opportunity set forth in paragraph 3, you waive all rights afforded by Section 1542 of the Civil Code of the State of California (Section 1542), or any other law or statute of similar effect in any jurisdiction with respect to the released Claims, with respect to the Released Parties. Section 1542 states: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. Notwithstanding the provisions of Section 1542 and for the purpose of implementing a full and complete release of all Claims, you expressly acknowledge and agree that this Agreement releases all Claims existing or arising prior to your execution of this Agreement which you have or suspect you may have against the Released Parties whether such claims are known or unknown and suspected or unsuspected by you and you forever waive all inquiries and investigations into any and all such claims. You understand and acknowledge that the significance and consequence of this waiver of Civil Code §1542, is that even if you should suffer additional injuries or damages arising out of the released Claims, you will not be permitted to make any claim for those injuries or damages.
6. Waiver of Claims under ADEA; Time to Consider/Revoke. You acknowledge, understand and agree that that the general release of claims in paragraphs 4 and 5 above includes, but is not limited to, a waiver and release of all claims that you may have under the Age Discrimination in Employment Act of 1967, as amended (the ADEA) arising up to and including the date that you sign this Agreement. As required by the Older Workers Benefit Protection Act of 1990, you are hereby advised that:
|||you are not waiving any rights or claims, including any rights under the ADEA, that may arise after the date that you sign this Agreement;|
|||you should consult with an attorney of your choice concerning your rights and obligations under this agreement before signing this Agreement;|
|||you should fully consider this Agreement before signing it;|
|||nothing in this Agreement prevents or precludes you from challenging (or seeking a determination of) the validity of the waiver under the ADEA;|
|||you have 21 days from the date you received this Agreement to consider whether or not you want to sign this Agreement. You also should understand that you may use as much or as little of the 21-day period as you wish before deciding whether or not to sign this Agreement;|
|||if you do not sign and return this Agreement within the required time period, then the Companys offer to provide you with the payment and consulting opportunity described in paragraph 3 above, will automatically terminate;|
|||at any time within 7 days after signing this Agreement, you may change your mind and revoke your acceptance of this Agreement. To be effective, your revocation must be in writing and either hand-delivered or sent by facsimile to the Company within the 7-day period.|
|||this Agreement is not effective or enforceable until (and if) the revocation period has passed without a revocation;|
|||if you exercise your right to revoke, this Agreement (including, without limitation, the Companys offer to provide you with the payment and consulting opportunity described in paragraph 3 and your release of claims in paragraphs 4 and 5 above) will not be enforceable; and|
|||if you do not revoke your acceptance of this Agreement, the eighth day following that date that you sign this Agreement will be the effective date.|
7. No Pending Claims. You represent and warrant that you have no charges, lawsuits, or actions pending in your name against any of the Released Parties relating to any claim that has been released in this Agreement. You also represent and warrant that you have not assigned or transferred to any third party any right or claim against any of the Released Parties that you have released in this Agreement.
8. Covenant not to Sue. Except as provided in paragraph 11 below, you covenant and agree that you will not report, institute or file a charge, lawsuit or action (or encourage, solicit, or voluntarily assist or participate in, the reporting, instituting, filing or prosecution of a charge, lawsuit or action by a third party) against any of the Released Parties with respect to any claim that has been released in this Agreement.
9. Cooperation with Investigations/Litigation. You agree, at the Companys request, to reasonably cooperate, by providing truthful information, documents and testimony, in any Company investigation, litigation, arbitration, or regulatory proceeding regarding events that occurred during your employment with the Company. Your requested cooperation may include, for example, making yourself reasonably available to consult with the Companys counsel, providing truthful information and documents, and to appear to give truthful testimony. The Company will, to the extent permitted by applicable law and court rules, reimburse you for reasonable out-of-pocket expenses that you incur in providing any requested cooperation, so long as you provide advance written notice to the Company of your request for reimbursement and provide satisfactory documentation of your expenses. Following the later of the
termination of the Consulting Agreement or your tenure as a director, the Company will also compensate you for your time to the extent permitted by applicable law and court rules, at a mutually agreed upon rate. Nothing in this paragraph is intended to, and shall not, preclude or limit your protected rights under paragraph 11 below or restrict or limit you from providing truthful information in response to a subpoena, other legal process or valid governmental inquiry.
10. Non-Disparagement. The Companys Officers and Directors, on the one hand, and you, on the other hand, hereby agree not to at any time make any disparaging or derogatory statements concerning each other, or the Companys business, products and services. However, nothing in this paragraph is intended to, and shall not, restrict or limit you from (a) exercising your protected rights described in paragraph 11, or (b) providing truthful information in response to a subpoena, other legal process or valid governmental inquiry. The Company agrees to instruct its officers and directors not to make any disparaging or derogatory statements concerning you.
11. Fiduciary Duties; Corporate Governance; Restricted Stock. You acknowledge that the termination of your employment has no impact on your continuing fiduciary duties to the Company, stemming from your continued service on the Companys board of directors. You further acknowledge that as long as you are a member of the board you continue to be subject to the Companys code of business conduct, insider trading policy and other corporate governance policies in the same manner as any member of the board of directors. Provided that there is an open window under the Companys insider trading policy at the time of such request, the Company hereby agrees to instruct its counsel to issue opinions to remove restrictive legends from shares held by you upon presentation by you of selling stockholder representation letters and broker representation letters, each in a form reasonably satisfactory to such counsel, that such shares are eligible to be sold under Rule 144 of the Securities Act of 1933, as amended (Rule 144). In addition, the Company hereby agrees that ninety (90) days after your resignation from the Board of Directors of the Company, it will instruct its counsel to issue opinions to remove all restrictive legends from shares held by you for at least one year, upon presentation by you of selling stockholder representation letter(s), each in a form reasonably satisfactory to such counsel, certifying that (i) you are not, and have not been within the past three months, an affiliate of the Company and (ii) you have held the shares for at least one year, so that such shares are eligible to be sold under Rule 144 without any restrictions.
12. Acknowledgments. You and the Company acknowledge and agree that:
(A) By entering in this Agreement, you do not waive any rights or claims that may arise after the date that you sign and deliver this Agreement to the Company;
(B) This Agreement is not intended to, and shall not in any way prohibit, limit or otherwise interfere with your protected rights under federal, state or local law to without notice to the Company: (i) communicate or file a charge with a government regulator; (ii) participate in an investigation or proceeding conducted by a government regulator; or (iii) receive an award paid by a government regulator for providing information;
(C) Notwithstanding anything set forth in this Agreement to the contrary, nothing in this Agreement shall affect or be used to interfere with your protected right to test in any court, under the Older Workers Benefit Protection Act, or like statute or regulation, the validity of the waiver of rights under ADEA as set forth in this Agreement; and
(D) Nothing in this Agreement shall preclude you from exercising your rights, if any (i) under Section 601-608 of the Employee Retirement Income Security Act of 1974, as amended, popularly known as COBRA, or (ii) the Companys 401(k) plan.
13. No Other Pay or Benefits. You acknowledge and agree that upon the Companys payment of the amounts described in paragraph 2, you will have been paid for all work performed including, without limitation, all salary/wages, bonuses, overtime, commissions and any earned, but unused, vacation time due to you up through and including the last day of your employment. You acknowledge and agree that, except for Companys obligation to provide the payment and consulting opportunity provided in paragraph 3, you are entitled to no other payments or benefits whatsoever (other than COBRA) and the Released Parties have no further obligations to you whatsoever, whether arising out of your employment with the Company, your separation from the Company or otherwise.
14. No Admission. Nothing contained in this Agreement will constitute or be treated as an admission by you, the Company or any of the other Released Parties of any liability, wrongdoing or violation of law.
(A) This Agreement, together with the Employee Non-Disclosure and Invention Assignment Agreement (referred to herein as the Covenants Agreement), contains the entire agreement and understanding between you and the Company concerning the subject matter of this Agreement and supersedes any and all prior agreements or understandings (both written and oral) between you and the Company concerning the subject matter of this Agreement. This Agreement may only be modified by a written document signed by you and an authorized officer of the Company.
(B) This Agreement and the Covenants Agreement shall inure to the benefit of the Company and the other Released Parties and shall be binding upon Company and its successors and assigns. This Agreement also shall inure to the benefit of, and be binding upon, you and your heirs, executors, administrators, beneficiaries, personal representatives and assigns. This Agreement is personal to you and you may not assign or delegate your rights or duties under this Agreement, and any such assignment or delegation will be null and void.
(C) The provisions of this Agreement and the Covenants Agreement are severable. If any provision in this Agreement or the Covenants Agreement is held to be invalid, illegal or unenforceable, the remaining provisions will remain in full force and effect and the invalid, illegal and unenforceable provision shall be reformed and construed so that it will be valid, legal and enforceable to the maximum extent permitted by law.
(D) The Company and you shall each bear their own costs, fees (including, without limitation, attorneys fees) and expenses in connection with the negotiation, preparation and execution of this Agreement.
(E) The failure of the Company to seek enforcement of any provision of this Agreement or the Covenants Agreement in any instance or for any period of time shall not be construed as a waiver of such provision or of the Companys right to seek enforcement of such provision in the future.
(F) This Agreement and the Covenants Agreement will be governed and interpreted under the laws of the State of California, without giving effect to choice of law principles. The Company and you irrevocably consent to the exclusive jurisdiction of the federal and state courts in the State of California for the resolution of any disputes arising under or respect to this Agreement or the Covenants Agreement.
(G) Given the full and fair opportunity provided to each of party to consult with their respective counsel regarding terms of this Agreement, ambiguities shall not be construed against either party by virtue of such party having drafted the subject provision.
(H) The headings in this Agreement are included for convenience of reference only and shall not affect the interpretation of this Agreement.
16. Opportunity to Review. You represent and warrant that you:
|||have had sufficient opportunity to consider this Agreement;|
|||have carefully read this Agreement and understand all of its terms;|
|||are not incompetent and have not had a guardian, conservator or trustee appointed for you;|
|||have entered into this Agreement of your own free will and volition and that, except for the promises expressly made by the Company in this Agreement, no other promises or agreements of any kind have been made to you by any person or entity whatsoever to cause you to sign this Agreement;|
|||understand that you are responsible for your own attorneys fees and costs;|
|||have been advised and encouraged by the Company to consult with your own independent counsel before signing this Agreement;|
|||have had the opportunity to review this Agreement with counsel of your choice or have chosen voluntarily not to do so;|
|||understand that you have been given twenty-one (21) days to review this Agreement before signing this Agreement and understand that you are free to use as much or as little of such 21-day period as you wish or consider necessary before deciding to sign it; and|
|||understand that this Agreement is valid, binding, and enforceable against you and the Company according to its terms.|
If you wish to accept this Agreement, please sign, date and return it no later than twenty-one (21) days after you receive it.
|Very truly yours,|
|By: Presbia USA, Inc., its Manager|
|Title: President and CEO|
|READ, UNDERSTOOD, AND AGREED:|
|EMPLOYEE SIGNATURE||DATE SIGNED 1/13/2017|
INDEPENDENT CONTRACTOR SERVICES AGREEMENT
THIS CONSULTING AGREEMENT (the Consulting Agreement) is made by Presbia PLC, an Irish public limited company, together with its affiliates (the Company) and Vladimir Feingold (Consultant) as of January 13, 2017 (the Effective Date). In consideration of the mutual obligations specified in this Consulting Agreement and the Monthly Fee set forth on Exhibit A, to be paid as compensation to Consultant for his services, the receipt and sufficiency of which is hereby acknowledged, and as good and valuable consideration for the terms and conditions of the Separation and General Release Agreement between Consultant and PresbiBio, LLC, the parties agree to the following:
1. Work, Payment and Equity Interests. Consultant agrees to use his reasonable best efforts and act in all cases in the best interest of the Company to perform the services for the Company set forth on the Statement of Work attached hereto as Exhibit B and any subsequent Statements of Work mutually agreed to by the Company and the Consultant (the Services). Consultant shall receive the Monthly Fee set forth in the Statement of Work for the Services, following the presentation of an invoice at the end of each calendar month in accordance with Companys policies for independent contractors as are in effect from time to time. Consultant may not assign his obligation to perform the Services without the Companys prior written consent; provided however that Consultant may assign this agreement to a loan-out company with Companys consent, not to be unreasonably withheld, provided that Consultant continues to provide the Services and be responsible for all of Consultants obligations hereunder. Until the end of the Initial Term and any renewal Terms, all Restricted Share Units granted to Consultant on April 28, 2016 and all Stock Options granted to Consultant on January 28, 2015 shall continue to vest in accordance with their respective agreements and the Companys Incentive Plan.
2. Term. This Consulting Agreement shall commence on the Effective Date and shall continue through December 31, 2017 (the Initial Term). Thereafter, unless or until terminated as provided in Section 6, the term of this Consulting Agreement shall automatically renew for another 12 month term.
3. Confidentiality. While performing the Services, Consultant may develop or acquire knowledge in his work or from directors, officers, employees, agents or Contractors of the Company or otherwise of Confidential Information relating to the Company, its business, potential business or that of its customers, clients, and suppliers. Confidential Information includes all trade secrets, know-how, show-how, theories, technical, operating, financial, and other business information, whether or not reduced to writing or other medium and whether or not marked or labeled confidential, proprietary or the like, specifically including, but not limited to, information regarding actual or prospective customer lists, source codes, software programs, computer systems, algorithms, formulae, concepts, creations, costs, plans, materials, enhancements, research, specifications, works of authorship, techniques, documentation, models and systems, sales and pricing techniques, designs, inventions, discoveries, products, improvements, modifications, methodology, processes, concepts, records, files, memoranda, reports, plans, proposals, price lists, customer, client, and supplier lists and information, product development and project procedures. Confidential Information does not include (a) general skills, experience, or information that is generally available to the public, other than information that has become generally available as a result of Consultants direct or indirect act or omission; (b) information that is required to be disclosed pursuant to any applicable law, regulation, judicial or administrative order or decree, or request by any other regulatory organization having authority pursuant to law; provided, however, that Consultant shall have first given prompt written notice to Company to afford it a reasonable opportunity to obtain a protective order requiring that the Confidential Information not be disclosed and, in the event such protective order is not obtained, Consultant shall disclose only that portion of the Confidential Information that Consultant is legally obligated to disclose; (c) was in the possession of Consultant at the time the information was disclosed to Consultant; (d) was lawfully received by Consultant from a third party without any breach by any person of a duty of confidentiality or fiduciary duty; or (e) was developed independently by
Consultant without reference to the Confidential Information and not at the direction of the Company and/or an affiliate, employee, director, partner, manager or customer of the Company; provided that nothing contained herein shall be deemed to limit or diminish any of the Companys rights or any of Consultants obligations under the Covenants Agreement (as defined below). Consultant will not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret if Consultant makes such disclosure in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney and such disclosure is made solely for the purpose of reporting or investigating a suspected violation of law; or such disclosure was made in a complaint or other document filed in a lawsuit or other proceeding if such filing is made under seal. With respect to Confidential Information of the Company and its clients, customers, and suppliers:
(a) Consultant will use Confidential Information only in the performance of the Services for Company. Consultant will not use Confidential Information at any time for his/her own personal benefit, for the benefit of any other individual or entity, or in any manner adverse to the interests of the Company or its clients, customers, or suppliers;
(b) Consultant will not disclose Confidential Information at any time (during or after Consultants engagement by Company) except to authorized Company personnel, unless Company consents in advance in writing or unless the Confidential Information indisputably becomes of public knowledge or enters the public domain (other than through Consultants direct or indirect act or omission);
(c) Consultant will safeguard the Confidential Information by all reasonable steps and abide by all policies and procedures of Company in effect from time to time regarding storage, copying, destruction, and handling of documents;
(d) Consultant acknowledges that Company may be required to sign non-disclosure or confidentiality agreements with clients, customers, or suppliers, prospective clients, customers, or suppliers, and other third parties in which the Company agrees that its employees and agents will not disclose Confidential Information of such clients, customers, or suppliers, prospective clients, customers, or suppliers, or other third parties. By executing this Consulting Agreement, Consultant acknowledges and agrees that the Company may rely, and will rely, on this Consulting Agreement for purposes of entering into such other agreements. Further, Consultant will execute and abide by all confidentiality agreements reasonably requested by the Companys clients, customers, or suppliers, prospective clients, customers, or suppliers, and other third parties; and
(e) Consultant will return all materials containing and/or relating to Confidential Information, together with all other property of the Company and its clients, customers, and suppliers to Company when Consultants consulting relationship with Company terminates or otherwise at any other time upon demand and, at that time Consultant will certify to Company, in writing, that Consultant has complied with this Consulting Agreement. Consultant will not retain any copies or reproductions of correspondence, memoranda, reports, notebooks, drawings, photographs, databases, diskettes, or other documents or electronically stored information of any kind relating in any way to the business, potential business or affairs of the Company and its clients, customers, and suppliers.
This Section 3 shall survive the termination of this Consulting Agreement for any reason, including the expiration of the Term. The obligations in this Section 3 are in addition to, and not instead of, any obligations that Consultant has under the Employee Non-Disclosure and Invention Assignment Agreement he previously signed during his employment with the Company (referred to herein as the Covenants Agreement), the terms and conditions of which are hereby ratified and confirmed.
4. Ownership of Work Product.
|(i)||Intellectual Property Rights means any and all intellectual property rights throughout the world, including, without limitation, any and all patents, patent applications, copyrights, copyright applications, moral rights, trademarks, trade secret rights, rights to know-how, inventions and algorithms, and any and all similar or equivalent rights.|
|(ii)||Work Product means all deliverables, materials, works in progress, drawings, photographs, and other works of authorship (whether or not fixed in a tangible medium of expression); any invention (whether or not patentable) and all related know-how, designs, mask works, formulae, processes, manufacturing techniques, trade secrets, and ideas; trademarks, service marks, and logos; software (in both object and source code); and all other copyrightable or patentable works conceived, developed, reduced to practice, made, or created (or caused to be conceived, developed, reduced to practice, made, or created) by Consultant (solely or jointly with others) as part of or in connection with the providing of the Services to Company under this Agreement, but excluding all Consultant Materials (as defined below).|
(b) All information and materials, including computer software, provided to Company by Consultant or otherwise used by Consultant in connection with the Services, that Consultant developed or acquired prior to or independently of this Agreement (the Consultant Materials) are and shall remain the property of Consultant or its licensors, which shall retain all Intellectual Property Rights therein. Consultant shall not incorporate any Consultant Materials into the Work Product without the prior, written consent of Company in each instance. To the extent Company approves such incorporation, Consultant hereby grants to Company a nonexclusive, irrevocable, world-wide, perpetual, fully paid-up, and royalty-free license to use, reproduce, distribute, create derivative works of, publicly perform, publicly display, modify, maintain, support, and otherwise exploit such Consultant Materials without restriction. For the avoidance of doubt, any information, work product, or other materials created by Consultant under the Covenants Agreement shall be governed by the Covenants Agreement and shall not constitute Consultant Materials hereunder.
(c) The Parties agree that all Work Product, all Intellectual Property Rights in and thereto, and derivative works created therefrom shall be the sole and exclusive property of Company. Consultant hereby irrevocably assigns and agrees to assign in the future to Company all right, title, and interest and any and all Intellectual Property Rights in and to the Work Product. Consultant acknowledges and agrees that all aspects of the Work Product that are protectable by copyright shall be deemed works made for hire, as that term is defined in the United States Copyright Act (17 USCA, Section 101). Consultant agrees not to challenge the validity of Companys ownership of the Work Product and hereby waives any and all claims and rights of any nature whatsoever (including any moral rights) that Consultant may now or hereafter have with respect to the Work Product. In the event that Consultant has any Intellectual Property Rights in the Work Product that cannot be assigned or waived, then Consultant hereby unconditionally and irrevocably grants to Company an exclusive, worldwide, irrevocable, fully-paid, royalty-free, perpetual license (with the right to sublicense through multiple tiers) to use, reproduce, distribute, create derivative works of, publicly perform, and publicly display such Work Product in any medium or format, whether now known or later developed. Consultant shall not use the Work Product for any purpose other than the performance of its obligations under this Agreement except to the extent that the Parties may otherwise expressly agree in writing.
(d) Consultant shall make full and appropriate written disclosure to Company (or any person designated by Company) about any portion of the Work Product that would constitute an invention promptly after any such invention is conceived, developed, reduced to practice, made, or created and promptly after any request therefor by Company. Consultant hereby agrees to execute (and deliver to Company) such further documents and instruments (including without limitation an Assignment of Intellectual Property in the form provided by Company to Consultant) and to take such further actions that Company reasonably deems necessary or desirable in order to effect the assignment to Company of all of Consultants right, title, and interest in and to the Work Product, promptly after any request therefor by Company, at Companys sole expense.
(e) No employee, consultant, or contractor of Consultant shall participate in the providing of the Services or any development work under this Agreement unless such employee, consultant, or contractor has first entered into an appropriate written agreement with Consultant that covers the assignment to Consultant all of the Intellectual Property Rights in and to such Services and/or development work. Consultant shall deliver to Company copies of such signed agreements promptly after any request therefor by Company.
(f) The obligations under this Section 4 are in addition to, and not instead of, those to which Consultant already is bound under the Covenants Agreement with respect to the ownership of work product.
5. No Conflicts. Consultant will refrain from any activity, and will not enter into any agreement or make any commitment that is inconsistent or incompatible with Consultants obligations under this Consulting Agreement, including Consultants ability to perform the Services. Consultant represents and warrants that Consultant is not subject to any contract or duty that would be breached by Consultants entering into or performing Consultants obligations under this Consulting Agreement or that is otherwise inconsistent with this Consulting Agreement. Consultant will not disclose to Company, will not bring into Companys facilities, and will not induce Company to use any confidential or proprietary Confidential Information of any third party. Consultant will indemnify and hold harmless Company and its affiliates, employees, and agents from and against any and all liabilities, losses, damages, costs, and other expenses (including attorneys and expert witnesses costs and fees) arising from or relating to any breach of any representation, warranty, covenant, or obligation of Consultant in this Consulting Agreement or any intentional misconduct or negligence by Contactor in performing the Services.
(a) This Consulting Agreement is terminable by Company or Consultant upon sixty (60) or thirty (30) days, respectively, with prior written notice (including by electronic mail) to the other party in accordance with the provisions set forth in Section 11 below.
(b) (A) If Company terminates this Consulting Agreement during the Initial Term without Cause (as hereinafter defined), and contingent upon the Consultant signing the Companys usual and customary form of general release agreement and reasonably cooperating in the transition of the Services, the Company shall be required to pay Consultant the balance of any fees due through the conclusion of the Initial Term in equal monthly installments. The Company shall have no obligation to pay any fee to Consultant other than the pro-rated amount of any Monthly Fee for the Services rendered through the date of termination if Company were to terminate this Consulting Agreement either (i) for Cause during the Initial Term or (ii) with or without Cause at any time after the Initial Term. For purposes of this Section 6(b), Cause means that (x) Consultant has breached his obligations under the Separation and General Release Agreement, this Consulting Agreement, or the Covenants Agreement, or (y) Consultant has engaged in fraud, gross negligence or willful misconduct in the performance of the Services.
(B) No termination for Cause under subsection 6(b) above shall be effective unless the Company has given Consultant written notice of the intention to terminate this Consulting Agreement for Cause stating the grounds for such purported termination. If such breach is capable of being cured, the Consultant shall then have fifteen (15) business days to respond and attempt to cure the purported breach.
(c) If Consultant were to terminate this Consulting Agreement during the Initial Term or any time thereafter (a Resignation Event), the Company shall have no obligation to pay any Fee to Consultant beyond the pro-rated amount of any Monthly Fee for the Services rendered through the date of the Consultants resignation. If there is a Resignation Event, Consultant also agrees that he shall offer his resignation from the Companys board of directors at the same time.
7. Independent Contractor. Consultant is an independent contractor, is not an agent or employee of Company and is not authorized to act on behalf of Company except as expressly authorized by the Companys Chief Executive Officer (CEO). Consultant shall report to and take sole direction from the CEO. Company shall carry no workers compensation insurance or any health or accident insurance to cover Consultant. Company shall not pay any contributions to Social Security, unemployment insurance, federal, or state withholding taxes, or provide any other contributions or benefits that might be expected in an employer-employee relationship and Consultant expressly waives any right to such participation or coverage.
8. General. The parties rights and obligations under this Consulting Agreement will bind and inure to the benefit of their respective successors, heirs, executors, and administrators and permitted assigns. This Consulting Agreement and its Exhibits attached hereto and hereby incorporated herein constitute the parties final, exclusive and complete understanding and agreement with respect to the subject matter hereof, and supersede all prior and contemporaneous understandings and agreements relating to its subject matter. This Consulting Agreement may not be waived, modified, amended or assigned unless mutually agreed upon in writing by both parties. In the event any provision of this Consulting Agreement is found to be legally unenforceable, such unenforceability shall not prevent enforcement of any other provision of the Consulting Agreement.
9. Expenses. Consultant shall be responsible for all expenses incurred in the performance of the Services with the exception of any specific expenses that Company pre-approves in writing. Company agrees that Consultant will be permitted to travel in business class or higher (if business class is not available), provided Consultant agrees to obtain advance written approval from the Company before engaging in business travel on the Companys behalf.
10. Enforcement; Indemnification.
(a) Consultant understands and agrees that if he breaches this Consulting Agreement, the Company would suffer irreparable harm and damages would be an inadequate remedy. Accordingly, Consultant acknowledges that, in the event of any breach or threatened breach by him of any of the provisions of this Consulting Agreement, Company shall be entitled to temporary, preliminary and permanent injunctive or other equitable relief in any court of competent jurisdiction without being obligated to post a bond or other collateral and to an equitable accounting of all earnings, profits and other benefits proven in such court of competent jurisdiction to arise from such violation, which rights shall be cumulative and in addition to rather than instead of any other rights or remedies to which the Company may be entitled at law or in equity. In addition to and not instead of those rights, Consultant further covenants that he shall be responsible for payment of the fees and expenses of the Companys attorneys
and experts, as well as the Companys court costs, pertaining to any suit, arbitration, mediation, action or other proceeding, including the costs of any investigation related thereto, arising out of his violation of any of the provisions of this Consulting Agreement if a court of competent jurisdiction determines that Consultant has breached this Consulting Agreement.
(b) The Obligations of (i) the Company under the Deed of Indemnification dated as of January 14, 2015 by and between the Company and the Consultant, and (ii) Presbia USA, Inc. under the Indemnity Agreement dated as of March 20, 2014 by and between Presbia USA, Inc. and the Consultant, previously entered into during the Consultants employment with the Company, are hereby ratified and confirmed and incorporated herein by reference.
11. Notices. Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement must be in writing and will be deemed to have been delivered: (i) upon receipt, when delivered personally; (ii) upon receipt, when sent by facsimile or email (provided, confirmation of transmission is mechanically or electronically generated and kept on file by the sending party); or (iii) one Business Day after deposit with an overnight courier service, in each case properly addressed to the party to receive the same. The addresses and facsimile numbers for such communications shall be:
If to the Company:
|8845 Irvine Center Drive, Suite 100|
|Irvine, California 92618|
|Attention:||Mr. Todd Cooper|
|Chief Executive Officer|
With a copy (for informational purposes only) to:
|Lowenstein Sandler LLP|
|1251 Avenue of the Americas|
|New York, New York 10020|
|Attention:||David L. Goret, Esq.|
If to the Consultant:
|23016 Lake Forest Drive|
|Laguna Hills, California 92653|
With a copy (for informational purposes only) to:
|Davidoff Hutcher & Citron LLP|
|605 Third Avenue|
|New York, New York 10158|
|Attention:||Elliot H. Lutzker, Esq.|
Any dispute between the parties arising out of this Consulting Agreement, including, but not limited, to any dispute regarding any aspect of this Agreement, its formation, validity, interpretation, effect, performance or breach, or the Consultants Services (Arbitrable Dispute) shall be submitted to arbitration in the City of Irvine, Orange County, California, pursuant to the Rules of the American Arbitration Association, before a single experienced arbitrator who is either licensed to practice law in California, or is a retired judge having practiced law in California. The arbitrators decision and/or award will be fully enforceable and subject to entry of judgment by any court of competent jurisdiction.
(a) This Consulting Agreement, together with the Covenants Agreement, the Deed of Indemnification Agreement and the Indemnity Agreement, each of which that the Consultant previously signed during his employment with the Company as well as the Separation and General Release Agreement that Consultant signed upon his separation of employment from the Company, contain the entire agreement and understanding between Consultant and the Company concerning the subject matter hereof and supersedes any and all prior agreements or understandings (both written and oral) between Consultant and the Company concerning the subject matter of this Consulting Agreement. This Consulting Agreement may only be modified by a written document signed by you and an authorized officer of the Company.
(b) This Consulting Agreement shall inure to the benefit of and shall be binding upon Company and its successors and assigns. This Agreement also shall inure to the benefit of, and be binding upon, Consultant and his heirs, executors, administrators, beneficiaries, personal representatives and assigns. This Consulting Agreement is personal to Consultant and neither party may assign or delegate its rights or duties under this Consulting Agreement, and any such assignment or delegation will be null and void.
(c) The provisions of this Consulting Agreement are severable. If any provision in this Consulting Agreement is held to be invalid, illegal or unenforceable, the remaining provisions will remain in full force and effect and the invalid, illegal and unenforceable provision shall be reformed and construed so that it will be valid, legal and enforceable to the maximum extent permitted by law.
(d) The Company and Consultant shall each bear their own costs, fees (including, without limitation, attorneys fees) and expenses in connection with the negotiation, preparation and execution of this Consulting Agreement.
(e) The failure of the Company to seek enforcement of any provision of this Consulting Agreement in any instance or for any period of time shall not be construed as a waiver of such provision or of the Companys right to seek enforcement of such provision in the future.
(f) This Consulting Agreement will be governed and interpreted under the laws of the State of California, without giving effect to choice of law principles.
(g) Given the full and fair opportunity provided to each of party to consult with their respective counsel regarding terms of this Consulting Agreement, ambiguities shall not be construed against either party by virtue of such party having drafted the subject provision.
IN WITNESS WHEREOF, the parties hereto have executed this Consulting Agreement as of the date first set forth above.
|Title: President and CEO||Vladimir Feingold|
Consultant shall receive a monthly fee of $35,000.00 (the Monthly Fee) for Services rendered, with the prorated payment Monthly Fee for the first month and the Monthly Fee for the last month to be paid upon execution of this Agreement, after which Monthly Fees will be paid in ten (10) additional installments, upon presentation of an invoice at the end of each calendar month by Consultant to Company with a description of the services rendered
Company will issue a Form 1099 to Consultant for all fees received, and Consultant shall have full responsibility for any federal, state or local taxes due to any taxing authority.
STATEMENT OF WORK
This Statement of Work is incorporated into the Independent Contractor Services Agreement dated as of January 1, 2017 by and between Company and the Consultant (as defined in such Independent Contractor Services Agreement) (for the purposes of this Statement of Work, the Consulting Agreement). This Statement of Work describes Services to be performed and provided by Consultant pursuant to the Consulting Agreement. If any item in this Statement of Work is inconsistent with the Consulting Agreement prior to such incorporation, the terms of this Statement of Work will control, but only with respect to the Services to be performed under this Statement of Work. All capitalized terms used and not expressly defined in this Statement of Work will have the meanings given to them in the Consulting Agreement.
The Consultants engagement, and all services to be provided hereunder, will be subject to the oversight of the Companys Chief Executive Officer or his designee. Subject to such oversight and ongoing consultation with the Company, the Consultant will:
|||assist and advise in the direction of the Companys Manufacturing and R&D functions;|
|||assist and advise in the activities related to the planned FDA approval of the Presbia Microlens including R&D, Manufacturing, Regulatory and Clinical Affairs;|
|||assist and advise on research, development, operations, manufacturing, clinical and other Company projects.|
|||support the development of the Companys Intellectual Property Rights (as defined in the Consulting Agreement);|
|||support physician relations and training; and|
|||assist and advise with the transition of the Companys new Vice President of Clinical Affairs.|
The Consultant will provide the Services from his home or from an office of his choice as the Consultant will determine. However, to the extent the Company reasonably requests that certain of the Services should be provided at the Companys premises, the Company will provide a visitors office at the Companys premises for such purpose.