UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
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FORM 8-K
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CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 3, 2016
PERNIX THERAPEUTICS HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
Maryland |
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001-14494 |
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33-0724736 |
(State or Other Jurisdiction |
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(Commission File Number) |
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(IRS Employer Identification No.) |
10 North Park Place, Suite 201, Morristown, NJ |
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07960 |
(Address of principal executive offices) |
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(Zip Code) |
Registrant's telephone number, including area code: (800) 793-2145 |
(Former Name or Former Address, if Changed Since Last Report.) |
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 ( see General Instruction A.2. below):
o
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)o
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)o
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))o
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.
(d)
On November 4, 2016, the Board of Directors (the "Board") of Pernix Therapeutics Holdings, Inc. (the "Company") increased the size of the Board from three to five
members and, upon the recommendation of the Nominating Committee of the Board, appointed Graham G. Miao, Ph.D., the Company's President and Chief Financial Officer, and Dennis H.
Langer, M.D., J.D. to fill the newly-created vacancies on the Board, effective immediately. The Board also appointed Dr. Langer to the Audit, Compensation and Nominating Committees of
the Board, effective immediately. With Dr. Langer's appointment to the Audit Committee, the Company has regained compliance with the "three independent member audit
committee" requirement of NASDAQ Listing Rule 5605(c)(2)(A) within the specified cure period.
In connection with his appointment to the Board, Dr. Langer and the Company entered into an offer letter, dated October 27, 2016 (the "Offer Letter"). Pursuant to the Offer
Letter, Dr. Langer is entitled to the same compensation and benefits made available to other non-employee directors of the Company and will also receive the same compensation provided to
members of the Board's Audit, Compensation and Nominating Committees. As a non-employee director, Dr. Langer also received an initial option grant for 4,000 shares of the Company's
common stock ("Common Stock") with an exercise price equal to the closing price of the Common Stock as reported on The NASDAQ Stock Market LLC the day immediately
preceding the date of the grant. This initial option grant will vest over a four-year period, with 25% vesting on each year of the anniversary of the date of the grant.
The foregoing description of the Offer Letter is not complete and is qualified in its entirety by reference to the Offer Letter, which is attached hereto as Exhibit 10.1, and is incorporated
herein by reference.
There is no arrangement or understanding between either Dr. Miao or Dr. Langer and any other person pursuant to which either Dr. Miao or Dr. Langer was elected as director of the
Company. There are no relationships or transactions in which either Dr. Miao or Dr. Langer has or will have an interest, or was or is a party, requiring disclosure under Item 404(a) of
Regulation S-K.
On November 7, 2016, the Company issued a press release announcing the appointments of Dr. Miao and Dr. Langer to the Board. A copy of such press release relating to these
appointments is attached hereto as Exhibit 99.1.
(e)
On November 3, 2016 (the "Effective Date"), the Company entered into employment agreements with each of John A. Sedor, the Company's Chief Executive Officer (the
"Sedor Employment Agreement") and Dr. Miao, the Company's President and Chief Financial Officer (the "Miao Employment Agreement").
Sedor Employment Agreement
Pursuant to the Sedor Employment Agreement, Mr. Sedor will continue to serve as the Chief Executive Officer of the Company for a term beginning on the Effective Date and
ending on the third anniversary of the Effective Date, which term automatically will be extended for successive one year periods, unless the Company or Mr. Sedor gives the other party
written notice of non-renewal at least three months' prior to the applicable expiration date (subject to earlier termination as described below). Mr. Sedor also will continue to serve as Chairman
of the Board, subject to the Board's right to elect a different person as Chairman, and, at his option, will continue as a member of the Board during the term of his employment, subject to the
shareholders' election of Mr. Sedor to the Board during each year of his tenure.
Under the Sedor Employment Agreement, Mr. Sedor's annual base salary will continue to be $610,000 per year, which may be increased (but not decreased) annually by the Board or the
Compensation Committee. Mr. Sedor is eligible to receive a sign-on bonus of $125,000, subject to the achievement of the following performance milestones in 2016: (i) achieve the objectives
related to the operational restructuring resulting in a flattening management structure and the achievement of a sales force realignment that reduces and streamlines the two separate
Company sales into one integrated sales force, (ii) ensure compliance with the Company's debt covenants in August and October 2016, and (iii) regain compliance with NASDAQ's listing
requirements prior to the expiration of the grace period. If the performance milestones are achieved, as determined by the Board or the Compensation Committee, the sign-on bonus will be
paid to Mr. Sedor in a cash lump sum no later than December 31, 2016. Mr. Sedor also is eligible to receive an annual bonus with respect to each calendar year, commencing with calendar
year 2016, which will be payable based upon the achievement of certain performance objectives established by the Compensation Committee in consultation with Mr. Sedor. Mr. Sedor's
target annual bonus will be equal to 75% of his base salary. The actual annual bonus payable to Mr. Sedor in any calendar year will be determined by the Board or the Compensation
Committee, in its sole discretion, and may be less than or greater than Mr. Sedor's target annual bonus (but not greater than 200% of his target annual bonus). Commencing with calendar
year 2017, Mr. Sedor will be eligible to receive annual equity awards based on the Company's and Mr. Sedor's actual performance, as determined by the Board or the Compensation
Committee.
Commencing on November 1, 2016 and continuing until the earlier of September 1, 2018 or the end of the term of the Sedor Employment Agreement, the Company will pay Mr. Sedor a
housing allowance of $6,300 per month for a residence located within fifty miles of the Company's offices in Morristown, NJ. Mr. Sedor also is eligible to participate in all employee benefit
plans, practices and programs maintained by the Company on a basis no less favorable than is provided to other senior executives of the Company. Mr. Sedor is entitled to four weeks of
paid vacation, which will be pro-rated in calendar year 2016 based on his partial year of service with the Company.
Under the Sedor Employment Agreement, Mr. Sedor received a one-time equity grant consisting of options to purchase 150,000 shares of the Company's common stock under the
Amended and Restated Pernix Therapeutics Holdings, Inc. 2015 Omnibus Incentive Plan (the "2015 Plan") and 40,000 shares of the Company's common stock under the
Amended and Restated Pernix Therapeutics Holdings, Inc. 2009 Stock Incentive Plan (the "2009 Plan") (the "Sedor Options") and 131,100 restricted stock units under
the 2015 Plan (the "Sedor RSUs"). The Sedor Options and the Sedor RSUs each vest one-third per year, commencing on each anniversary of July 26, 2016, which is the date Mr.
Sedor assumed the role of Chief Executive Officer, and will be subject to the terms of the applicable plan and underlying award agreements (the "Sedor Award Agreements").
Under the Sedor Employment Agreement, if Mr. Sedor's employment is terminated by the Company without "cause," by Mr. Sedor for "good reason" (as such
terms are defined in the Sedor Employment Agreement), or due to the Company's election not to renew the Sedor Employment Agreement, Mr. Sedor will be entitled to (i) an amount equal to
the sum of (x) 150% of his base salary in effect at the time of the termination of his employment, and (y) 150% of his target bonus amount, payable in substantially equal installments over an
18-month period, (ii) an amount equal to the annual cash bonus, if any, that Mr. Sedor would have earned in respect of the calendar year of his termination of employment based on the
achievement of the applicable performance objectives for such year, pro-rated to reflect the number of days he was employed with the Company during such year, and (iii) reimbursements
equal to 150% of the monthly COBRA premium that Mr. Sedor pays for him and his eligible dependents to continue participating in the Company's medical, dental, vision and prescription
drug plans for a period of up to 18 months. If Mr. Sedor's employment terminates for any of the reasons set forth in the preceding sentence within 6 months prior to, or 24 months following, a
"change in control" (as defined in the Sedor Employment Agreement), Mr. Sedor will instead be entitled to (i) an amount equal to two times the sum of his base salary and target
bonus in effect at the time of the termination of his employment, payable in a lump sum, (ii) an amount equal to his target bonus, pro-rated to reflect the number of days he was employed with
the Company during such year, (iii) reimbursements equal to 150% of the monthly COBRA premium that Mr. Sedor pays for him and his eligible dependents to continue participating in the
Company's medical, dental, vision and prescription drug plans for a period of up to 18 months, and (iv) a lump sum cash payment equal to the product of (x) six and (y) an amount equal to
150% of the monthly COBRA premium that would be charged to similarly situated former senior executives of the Company, payable following the eighteen month anniversary of Mr. Sedor's
termination of employment, provided that he is not then eligible to receive coverage from another employer.
In addition to the payments set forth in the preceding paragraph, upon the termination of Mr. Sedor's employment without "cause," for "good reason," or due to the
Company's election not to renew the Sedor Employment Agreement, all of Mr. Sedor's outstanding equity awards will become fully vested as of the date his employment terminates. Mr.
Sedor also will be entitled to receive any earned or accrued amounts and vested benefits that remain unpaid as of the date of his termination of employment. The payments and benefits set
forth above are subject to Mr. Sedor's execution of a release of claims.
Pursuant to the Sedor Employment Agreement, if Mr. Sedor's employment is terminated by the Company for "cause," by Mr. Sedor without "good reason" or by
reason of Mr. Sedor's death or "disability" (as such term is defined in the Sedor Employment Agreement), Mr. Sedor (or his estate or beneficiaries, as applicable) will be entitled to
receive any earned or accrued amounts and vested benefits that remain unpaid as of the date of his termination of employment. In the event of Mr. Sedor's death, his beneficiaries will be
entitled to receive any Company life insurance benefits in which Mr. Sedor was covered at the time of his death. In the event of Mr. Sedor's "disability," he will be entitled to
receive any disability benefits under any applicable long-term disability plan of the Company that covers Mr. Sedor.
Pursuant to the Sedor Employment Agreement, during Mr. Sedor's employment with the Company and for a one-year period thereafter, Mr. Sedor is subject to non-compete and non-
solicit covenants. The Sedor Employment Agreement also contains customary nondisclosure, clawback/recoupment and nondisparagement covenants. The Company also has agreed to pay
to Mr. Sedor's attorneys' fees incurred in connection with the negotiation of the Sedor Employment Agreement.
The foregoing description of the Sedor Employment Agreement and the Sedor Award Agreements is not complete and is qualified in its entirety by reference to the Sedor Employment
Agreement and the Sedor Award Agreements, which are attached hereto as Exhibits 10.2, 10.3, 10.4 and 10.5, and are incorporated herein by reference.
Miao Employment Agreement
Pursuant to the Miao Employment Agreement, Dr. Miao will continue to serve as the President and Chief Financial Officer of the Company for a term beginning on the Effective Date
and ending on the third anniversary of the Effective Date, which term automatically will be extended for successive one year periods, unless the Company or Dr. Miao gives the other party
written notice of non-renewal at least three months' prior to the applicable expiration date (subject to earlier termination as described below). Dr. Miao also will be appointed to the Board and,
at his option, will continue as a member of the Board during the term of his employment, subject to the shareholders' election of Dr. Miao to the Board during each year of his tenure.
Under the Miao Employment Agreement, Dr. Miao's annual base salary will continue to be $501,000 per year, which may be increased (but not decreased) annually by the Board or the
Compensation Committee. Dr. Miao is eligible to receive a sign-on bonus of $100,000, subject to the achievement of the following performance milestones in 2016:
Under the Miao Employment Agreement, Dr. Miao received a one-time equity grant consisting of an option to purchase 95,000 shares of the Company's common stock under the 2009 Plan (the "Miao Option") and 65,500 restricted stock units under the 2015 Plan (the "Miao RSUs"). The Miao Option and the Miao RSUs each vest one-third per year, commencing on each anniversary of July 26, 2016, which is the date Dr. Miao assumed the role of President and Chief Financial Officer, and will be subject to the terms of the applicable plan and underlying award agreements (the "Miao Award Agreements").
Under the Miao Employment Agreement, if Dr. Miao's employment is terminated by the Company without "cause," by Dr. Miao for "good reason" (as such terms are defined in the Miao Employment Agreement), or due to the Company's election not to renew the Miao Employment Agreement, Dr. Miao will be entitled to (i) an amount equal to the sum of (x) 100% of his base salary in effect at the time of the termination of his employment and (y) 100% of his target bonus amount, payable in substantially equal installments over a 12-month period, (ii) an amount equal to the annual cash bonus, if any, that Dr. Miao would have earned in respect of the calendar year of his termination of employment based on the achievement of the applicable performance objectives for such year, pro-rated to reflect the number of days he was employed with the Company during such year, and (iii) reimbursements equal to 150% of the monthly COBRA premium that Dr. Miao pays for him and his eligible dependents to continue participating in the Company's medical, dental, vision and prescription drug plans for a period of up to 12 months. If Dr. Miao's employment terminates for any of the reasons set forth in the preceding sentence within 6 months prior to, or 24 months following, a "change in control" (as such term is defined in the Miao Employment Agreement), Dr. Miao will instead be entitled to (i) an amount equal to two times the sum of his base salary and target bonus in effect at the time of the termination of his employment, payable in a lump sum, (ii) an amount equal to his target bonus, pro-rated to reflect the number of days he was employed with the Company during such year, (iii) reimbursements equal to 150% of the monthly COBRA premium that Dr. Miao pays for him and his eligible dependents to continue participating in the Company's medical, dental, vision and prescription drug plans for a period of up to 18 months, and (iv) a lump sum cash payment equal to the product of (x) six and (y) an amount equal to 150% of the monthly COBRA premium that would be charged to similarly situated former senior executives of the Company, payable following the eighteen month anniversary of Dr. Miao's termination of employment, provided that he is not then eligible to receive coverage from another employer.
In addition to the payments set forth in the preceding paragraph, upon the termination of Dr. Miao's employment without "cause," for "good reason," or due to the Company's election not to renew the Miao Employment Agreement, all of Dr. Miao's outstanding equity awards will become fully vested as of the date his employment terminates. Dr. Miao also will be entitled to receive any earned or accrued amounts and vested benefits that remain unpaid as of the date of his termination of employment. The payments and benefits set forth above are subject to Dr. Miao's execution of a release of claims.
Pursuant to the Miao Employment Agreement, if Dr. Miao's employment is terminated by the Company for "cause," by Dr. Miao without "good reason" or by reason of Dr. Miao's death or "disability" (as such term is defined in the Miao Employment Agreement), Dr. Miao (or his estate or beneficiaries, as applicable) will be entitled to receive any earned or accrued amounts and vested benefits that remain unpaid as of the date of his termination of employment. In the event of Dr. Miao's death, his beneficiaries will be entitled to receive any Company life insurance benefits in which Dr. Miao was covered at the time of his death. In the event of Dr. Miao's "disability," he will be entitled to receive any disability benefits under any applicable long-term disability plan of the Company that covers Dr. Miao.
Pursuant to the Miao Employment Agreement, during Dr. Miao's employment with the Company and for a one-year period thereafter, Dr. Miao is subject to non-compete and non-solicit covenants. The Miao Employment Agreement also contains customary nondisclosure, clawback/recoupment and nondisparagement covenants. The Company also has agreed to pay to Dr. Miao's attorneys' fees incurred in connection with the negotiation of the Miao Employment Agreement.
The foregoing description of the Miao Employment Agreement and the Miao Award Agreements is not complete and is qualified in its entirety by reference to the Miao Employment Agreement and the Miao Award Agreements, which are attached hereto as Exhibits 10.6, 10.7 and 10.8, and are incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
(d) |
Exhibits |
The following exhibits are filed herewith:
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10.1 |
Offer Letter, dated October 27, 2016, by and between Pernix Therapeutics Holdings, Inc. and Dennis H. Langer, M.D., J.D. |
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10.2 |
Employment Agreement, dated November 3, 2016, by and between Pernix Therapeutics Holdings, Inc. and John A. Sedor. |
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10.3 |
Nonqualified Stock Option Agreement under the Amended and Restated Pernix Therapeutics Holdings, Inc. 2009 Stock Incentive Plan, dated November 3, 2016, by and between Pernix Therapeutics Holdings, Inc. and John A. Sedor. |
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10.4 |
Nonqualified Stock Option Agreement under the Amended and Restated Pernix Therapeutics Holdings, Inc. 2015 Omnibus Incentive Plan, dated November 3, 2016, by and between Pernix Therapeutics Holdings, Inc. and John A. Sedor. |
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10.5 |
Restricted Share Unit Agreement under the Amended and Restated Pernix Therapeutics Holdings, Inc. 2015 Omnibus Incentive Plan, dated November 3, 2016, by and between Pernix Therapeutics Holdings, Inc. and John A. Sedor. |
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10.6 |
Employment Agreement, dated November 3, 2016, by and between Pernix Therapeutics Holdings, Inc. and Graham G. Miao, Ph.D. |
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10.7 |
Nonqualified Stock Option Agreement under the Amended and Restated Pernix Therapeutics Holdings, Inc. 2009 Stock Incentive Plan, dated November 3, 2016, by and between Pernix Therapeutics Holdings, Inc. and Graham G. Miao, Ph.D. |
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10.8 |
Restricted Share Unit Agreement under the Amended and Restated Pernix Therapeutics Holdings, Inc. 2015 Omnibus Incentive Plan, dated November 3, 2016, by and between Pernix Therapeutics Holdings, Inc. and Graham G. Miao, Ph.D. |
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99.1 |
Press release by Pernix Therapeutics Holdings, Inc. dated November 7, 2016. |
SIGNATURES
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.
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PERNIX THERAPEUTICS HOLDINGS, INC. |
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Date: November 7, 2016 |
By: |
/s/ John A. Sedor |
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John A. Sedor |
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Chief Executive Officer |
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EXHIBIT INDEX
Exhibit No.
Document
10.1
10.2
10.3
10.4
10.5
10.6
10.7
10.8
99.1
Press release by Pernix Therapeutics Holdings, Inc. dated November 7, 2016.
Exhibit 10.1
10/27/2016
Dennis Langer, M.D., J.D.
8231 Bay Colony Drive, #1804
Naples, FL 34108
Re: Appointment to Pernix Therapeutics Holdings, Inc. Board of Directors
Dear Dr. Langer,
Subject to the Board of Directors (the "Board") of Pernix Therapeutic Holdings, Inc., a Maryland corporation (the "Company"), formally appointing you to the Board, I am pleased to extend an offer to you to serve as a Director on the Board for the remainder of the term that expires at the Company's next annual meeting of shareholders and as for as long thereafter as you are re-elected by the Company's shareholders at each annual meeting. Also, subject to formal appointment by the Board, I am extending an offer to you to Chair the Compensation Committee of the Board and to become a member of the Board's Audit Committee and Nominating Committee. The Company's mission is to identify, develop and commercialize specialty pharmaceutical products that exceed the expectations of patients, customers and shareholders with a high-performance culture and preeminent ethical standards. Dennis, I look forward to your guidance in helping the Company fulfill its mission.
The Company's Director Compensation package provides for an annual cash fee of $40,000 and the following additional cash fees for participating at various committees:
Committee Chairperson | Committee member | |||
Audit Committee: | $24,000 | $12,000 | ||
Compensation Committee: | $15,000 | $7,500 | ||
Governance Committee: | $10,000 | $7,000 |
Additionally, upon your formal appointment to the Board, in accordance with the Company's non-employee director compensation policy, you will receive an initial option grant for 4,000 shares of the Company's common stock with an exercise price equal to the closing price of the common stock as reported on NASDAQ the day immediately preceding the date of the grant. This initial option grant will vest over a four-year period, 25% vests on each year of the anniversary of the date of the grant provided you remain on the Board. Finally, you will receive an annual option grant for 4,000 shares of the Company's common stock, which will vest over a four-year period, 25% on each year of the anniversary of the date of the grant.
By signing this letter below, you hereby accept this appointment to serve of the Company's Board and the Board committees referenced above and agree that during the course of your tenure on the Board and thereafter, that you shall not use or disclose, in whole or in part, any of the Company's or its customers' trade secrets, confidential and proprietary information to any person or any entity for any reason or purpose whatsoever other than in the course of your appointment with the Company. We are excited for this opportunity to work with you on the Board.
As noted above, your official appointment to the Board and the Board committees referenced above is subject to the Board formally approving your appointment to the Board and the Board committees. We will notify you promptly if and when the Board approves your appointment to the Board and the Board committees.
Sincerely yours,
/s/ John A. Sedor
John A. Sedor
Chairman of the Board and Chief Executive Officer
You hereby acknowledge receipt of this letter and accept your appointment to the Board and the Board committees referenced above.
/s/ Dennis H. Langer, M.D., J.D.
______________________________________
Dennis H. Langer, M.D., J.D.
10 Park Place, Suite 201, Morristown, NJ 07960 * www.pernixtx.com
Exhibit 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement"), made as of November 3, 2016, between PERNIX THERAPEUTICS HOLDINGS, INC., a Maryland corporation (the "Company") and John A. Sedor ("Executive").
WITNESSETH :
WHEREAS, Executive currently serves as the Chief Executive Officer of the Company and Chairman of the Board of Directors of the Company (the "Board"); and
WHEREAS, the Company and Executive desire to enter into this Agreement to set out the terms and conditions for the continued employment relationship of Executive with the Company.
NOW, THEREFORE, intending to be legally bound hereby, the Company hereby agrees to continue to employ Executive, and Executive hereby agrees to continue to be employed by the Company, upon the following terms and conditions:
1. Term .
Subject to the terms and provisions of this Agreement, this Agreement shall commence as of the date hereof (the "Effective Date") and shall continue until the third anniversary of the Effective Date; provided, however, on such third anniversary of the Effective Date and on each annual anniversary of the Effective Date thereafter (such third anniversary date and each annual anniversary thereafter, being a "Renewal Date"), this Agreement shall be deemed to be automatically extended, upon the same terms and conditions, for successive periods of one (1) year each, unless the Company or Executive gives written notice to the other party of its intention not to renew this Agreement not less than three (3) months prior to the applicable Renewal Date. The period during which this Agreement is in effect and Executive is employed by the Company hereunder is hereinafter referred to as the "Term."
2. Title, Duties and Responsibilities .
3. Compensation and Benefits .
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the calendar year to which the bonus relates. Executive's target annual cash bonus (the "Target Bonus") shall be equal to 75% of his Base Salary, which for the avoidance of doubt, for 2016 shall be Base Salary not pro-rated to reflect his partial year of service. The exact amount of the bonus payable to Executive for any calendar year during the Term shall be determined by the Board or the Compensation Committee, in its sole discretion, and may be less than or greater than the Target Bonus; provided, that, in no event shall the bonus payable to Executive for any calendar year during the Term be greater than 200% of the Target Bonus. Except as otherwise provided in this Agreement, Executive must remain employed with the Company through the end of a calendar year in order to be eligible to receive an annual cash bonus for such calendar year. Any annual cash bonus earned by Executive shall be payable as soon as practicable after the end of the applicable calendar year but not later than March 15 after the end of such calendar year.
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applicable law. Executive shall be entitled to four (4) weeks of paid vacation, in addition to any Company holidays, subject to reasonable business expectations. Executive's paid vacation entitlement shall be pro-rated in calendar year 2016, based on the number of days in calendar year 2016 from and after the date on which Executive's employment with the Company commenced compared to the total number of days in calendar year 2016. Executive shall be entitled to carry forward up to ten (10) accrued but unused vacation days from calendar year to calendar year during the Term. The Company shall reimburse Executive for all reasonable expenses properly incurred by Executive in the discharge of his duties hereunder upon production of evidence therefor in accordance with the Company's then current policy.
4. Termination of Employment .
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5. Compensation Upon Termination of Employment .
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eligible dependents, for eighteen (18) months or, if earlier, until the date Executive becomes eligible to receive coverage from another employer or is otherwise no longer eligible to receive COBRA continuation coverage, which reimbursements shall be paid to Executive on each Company payroll date that occurs after the monthly premium is due and such reimbursements shall commence on the first payroll date that occurs on or after the Release Effective Date, but in any event within sixty (60) days following Executive's termination date, provided that the initial payment will include a catch-up payment to cover the period between Executive's termination date and the date of such first payment and the remaining amounts shall be paid over the remainder of such eighteen (18) month period.
For the avoidance of doubt, the amounts paid under this Section 5(b) are in lieu of payment to Executive under any other severance agreement, plan, policy, practice or program of the Company.
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For the avoidance of doubt, the amounts paid under this Section 5(c) are in lieu of payment to Executive under any other severance agreement, plan, policy, practice or program of the Company. Notwithstanding anything in Section 5(c)(i) to the contrary, if the Change in Control does not constitute a change in ownership or effective control of the Company, or in the ownership of a substantial portion of the assets of the Company, within the meaning of section 409A(a)(2)(A)(v) of the Code and its corresponding regulations (a "409A Change in Control"), in the event that Executive is entitled to the amounts set forth above in Section 5(c)(i) as a result of a termination of Executive's employment on or within the twenty-four (24) month period following the date of the Change in Control, and any portion of the severance benefit payable to Executive pursuant to Section 5(b)(i) is deemed to constitute deferred compensation subject to the requirements of section 409A of the Code at the time of Executive's termination, such portion that constitutes deferred compensation shall reduce the amount that is paid in a lump sum as provided above and such deferred compensation portion shall instead be paid in substantially equal installments over the installment period as described in Section 5(b)(i). In the event that Executive is entitled to the amounts set forth in Section 5(c)(i) as a result of Executive's termination of employment prior to a Change in Control and a Change in Control occurs within six (6) months following Executive's date of termination, Executive shall receive the amounts set forth in this Section 5(c), less any severance compensation paid to Executive in connection with Section 5(b), paid in the same form and time as provided in Section 5(c), except that the amounts payable pursuant to Section 5(c)(i) shall be paid in a lump sum, within ten (10) days after the date of the Change
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in Control; provided, that if the Change in Control does not constitute a 409A Change in Control and any portion of the severance benefit payable to Executive under Section 5(b)(i) is deemed to constitute deferred compensation subject to the requirements of section 409A of the Code such deferred compensation portion shall not be paid in a lump sum, but instead such deferred compensation portion shall continue to be paid in substantially equal installments over the remainder of the installment period described in Section 5(b)(i).
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more than fifty percent (50%) of the combined voting power of the then outstanding voting securities of the entity resulting from such Business Combination in substantially the same proportion as their ownership of the combined voting power of the voting securities of the Company outstanding immediately before such Business Combination or (y) immediately following the Business Combination, the individuals who comprised the Board immediately prior thereto do not constitute at least a majority of the board of directors of the entity resulting from such Business Combination (or, if the entity resulting from such Business Combination is then a subsidiary, the ultimate parent thereof); or (iv) a complete liquidation or dissolution of the Company or the closing of an agreement for the sale or other disposition of all or substantially all of the assets of the Company. Notwithstanding the foregoing, a Change in Control shall not be deemed to occur solely because fifty percent (50%) or more of the combined voting power of the Company's then outstanding securities is acquired by (A) a trustee or other fiduciary holding securities under one or more employee benefit plans maintained by the Company or any of its subsidiaries or (B) any corporation which, immediately prior to such acquisition, is owned directly or indirectly by the shareholders of the Company in the same proportion as their ownership of shares in the Company immediately prior to such acquisition. In addition, notwithstanding the foregoing, solely to the extent required by Section 409A of the Code, a Change in Control shall be deemed to have occurred only if there occurs a 409A Change in Control.
6. Section 280G .
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7. Confidential Information .
Executive recognizes and acknowledges that: (i) in the course of Executive's employment by the Company it will be necessary for Executive to acquire information which could include, in whole or in part, information concerning the Company's sales, sales volume, sales methods, sales proposals, customers and prospective customers, identity of customers and prospective customers, identity of key purchasing personnel in the employ of customers and prospective customers, amount or kind of customers' purchases from the Company, the Company's sources of supply, computer programs, system documentation, special hardware, product hardware, related software development, manuals, formulae, processes, methods, machines, compositions, ideas, improvements, inventions or other confidential or proprietary information belonging to the Company or relating to the Company's affairs (collectively referred to herein as the "Confidential Information"); (ii) the Confidential Information is the property of the Company; (iii) the use, misappropriation or disclosure of the Confidential Information would constitute a breach of trust and could cause irreparable injury to the Company; and (iv) it is essential to the protection of the Company's good will and to the maintenance of the Company's competitive position that the Confidential Information be kept secret and that Executive not disclose the Confidential Information to others or use the Confidential Information to Executive's own advantage or the advantage of others.
8. Confidentiality, Non-Compete, Non-Solicit and Related Covenants .
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9. Injunctive and other relief .
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10. Clawback/Recoupment . Notwithstanding any other provision in this Agreement to the contrary, to the extent the Company adopts a "clawback" or recoupment policy (i) that is applicable to all senior executives of the Company or (ii) in order to comply with applicable law, rule, or regulation, Executive acknowledges that the Company may require that any incentive compensation payable to Executive pursuant to this Agreement or any other agreement or arrangement, in each such case, the payment of which is based on the level of achievement of financial performance goals, may be subject to such policy; provided that any mandatory repayment by Executive to the Company under such policy will be limited to the excess of the compensation that is paid to Executive as a result of the accounting restatement, unless otherwise required by applicable law, rule or regulation.
11. Attorneys' Fees . In the event that any suit, action or arbitration proceeding is instituted under or in relation to this Agreement, the prevailing party in such dispute shall be entitled to recover from the losing party all fees, costs and expenses of enforcing or defending any right of such prevailing party under or with respect to this Agreement, including without limitation, such reasonable fees and expenses of attorneys and accountants (which shall include, without limitation, all fees, costs and expenses of appeals). All costs of arbitration, including the fees and expenses of the arbitrator, shall be borne by such losing party.
12. Arbitration . Except as excluded below, any legal or equitable claim or controversy arising out of or relating to this Agreement, including but not limited to Executive's employment by the Company or the termination of that employment (whether by Executive or the Company), shall be settled exclusively by binding arbitration in the Borough of Manhattan, City of New York, State of New York (or the regional office of AAA located in the Borough of Manhattan, City of New York, State of New York) before a single arbitrator, conducted in accordance with the Federal Arbitration Act and the National Rules for the Resolution of Employment Disputes of the American Arbitration Association ("AAA") which are then in effect (the "Rules"). A party seeking arbitration must: (i) deliver a written demand for arbitration and the applicable filing fee to the regional office of AAA located in the Borough of Manhattan, City of New York, State of New York and (ii) on the same day, send a copy of that demand to the other party. In accordance with the Rules, the demand must describe all claims the party seeks to arbitrate, and must be received by the AAA and the other party within the applicable statute of limitations governing that claim, or the party seeking arbitration will be barred from pursuing that claim. All aspects of the arbitration process, including the demand for arbitration, the hearing, and the record of the proceeding, shall be confidential and shall not be open to or disclosed to any third party or the public. Notwithstanding the foregoing, this agreement to arbitrate shall not apply to or cover (x) any claim by Executive for workers' compensation benefits or unemployment compensation benefits, (y) claims by Executive relating to employee benefits under any of the Company's insurance, disability, or retirement plans to the extent they must be raised with the administrator of the relevant plan pursuant to the terms of that plan and (z) any claim by the Company for injunctive or equitable relief, including without limitation claims that Executive has violated any part of Section 8 of this Agreement, or involving intellectual property, unfair competition, or trade secrets.
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13. Governing Law .
This Agreement shall be construed and enforced under and be governed in all respects by the laws of the State of New Jersey without regard to the conflict of laws principles thereof. For the purposes of any claim or cause of action in any legal proceeding initiated over any dispute arising out of or relating to this Agreement or any of the transactions contemplated hereby that is not subject to arbitration pursuant to Section 12 above, such claim or cause of action shall be initiated in any federal or state court located within the County of Morris, State of New Jersey, and the parties further agree that venue for all such matters shall lie exclusively in those courts. The parties hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection that they may now or hereafter have, including, without limitation, any claim of forum non conveniens, to venue and any objection to personal jurisdiction or venue in such jurisdiction in the courts located in the County of Morris, State of New Jersey. The parties agree that a judgment in any such dispute may be enforced in other jurisdictions by proceedings on the judgment or in any other manner provided by law.
14. Amendments, waivers, etc.
No amendment of any provision of this Agreement, and no postponement or waiver of any such provision or of any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, shall be valid unless such amendment, postponement or waiver is in writing and signed by or on behalf of the Company and Executive. No such amendment, postponement or waiver shall be deemed to extend to any prior or subsequent matter, whether or not similar to the subject matter of such amendment, postponement or waiver. No failure or delay on the part of the Company or Executive in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
15. Assignment .
The rights and duties of the Company under this Agreement may be transferred to, and shall be binding upon, any person or company which acquires or is a successor to the Company, its business or a significant portion of the assets of the Company by merger, purchase or otherwise, and the Company shall require any such acquirer or successor by agreement in form and substance reasonably satisfactory to Executive, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Company, as the case may be, would be required to perform if no such acquisition or succession had taken place. Regardless of whether such agreement is executed, this Agreement shall be binding upon any acquirer or successor in accordance with the operation of law and such acquirer or successor shall be deemed the "Company", as the case may be, for purposes of this Agreement. Except as otherwise provided in this Section 15, neither the Company nor Executive may transfer any of their respective rights and duties hereunder except with the written consent of the other party hereto.
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16. Notices.
Notices and all other communications provided for in this Agreement shall be in writing and shall be delivered personally or sent by registered or certified mail, return receipt requested, or by overnight carrier to the parties at the addresses set forth below (or such other addresses as specified by the parties by like notice):
If to the Company:
Pernix Therapeutics Holdings, Inc.
10 North Park Place, Suite 201
Morristown, NJ 07960
Attn: Vice President, Human Resources
If to Executive, to such address as shall most currently appear on the records of the Company.
17. Severability.
The invalidity or unenforceability of any one or more provisions of this Agreement shall not affect the validity or enforceability of the other provisions of this Agreement, which shall remain in full force and effect.
18. Interpretation, etc.
The Company and Executive have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Company and Executive and no presumption or burden of proof shall arise favoring or disfavoring the Company or Executive because of the authorship of any of the provisions of this Agreement. The word "including" shall mean including without limitation. The rights and remedies expressly specified in this Agreement are cumulative and are not exclusive of any rights or remedies which either party would otherwise have. The Section headings hereof are for convenience only and shall not affect the meaning or interpretation of this Agreement.
19. Integration; counterparts .
This Agreement constitutes the entire agreement among the parties and supersedes any prior understandings, agreements or representations by or among the parties, written or oral, to the extent they relate to the subject matter hereof, including the letter agreement between Executive and the Company, dated May 9, 2016. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. It shall not be necessary in making proof of this Agreement to produce or account for more than one such counterpart.
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20. Indemnification and Insurance .
The Company shall defend and hold Executive harmless to the fullest extent permitted by applicable law in connection with any claim, action, suit, investigation or proceeding arising out of or relating to performance by Executive of services for, or action of Executive as a director, officer, employee or consultant of the Company, or of any other person or enterprise at the request of the Company. Expenses incurred by Executive in defending a claim, action, suit or investigation or criminal proceeding shall be paid by the Company as such expenses are incurred. The foregoing shall be in addition to any indemnification rights Executive may have by law, contract, charter, by-law or otherwise. Executive shall be covered under any director and officer liability insurance purchased or maintained by the Company on a basis, and at levels, no less favorable than the Company makes available to peer executives and such coverage shall remain in effect covering Executive for the duration of the period while Executive is employed by, or providing services to, the Company, and for the six (6) year period after termination of such employment or service. After the occurrence of a Change in Control, the Company shall maintain in effect and shall provide to Executive director and officer liability insurance coverage that is no less favorable to Executive than that coverage in effect immediately prior to such Change in Control. This Section is intended to provide for the indemnification of, and/or purchase of insurance policies providing for payments of, expenses and damages incurred with respect to bona fide claims against Executive, as a service provider, or the Company, as the service recipient, in accordance with Treas. Reg. Section 1.409A-1(b)(10), pursuant to which this section shall not provide for the deferral of compensation. This Section shall be construed consistently, and limited in accordance with, the provisions of such regulation.
21. Survivorship .
The respective rights and obligations of the parties under this Agreement, including, without limitation the Company's obligations to pay and provide the severance benefits described in Section 5(b) and 5(c) of this Agreement and the Company's indemnification and insurance obligations under Section 20 of this Agreement, shall survive any termination of Executive's employment to the extent necessary to carry out the intentions of the parties under this Agreement.
22. Withholding .
The Company may withhold from any benefit payment or any other payment or amount under this Agreement all federal, state, city or other taxes as shall be required pursuant to any law or governmental regulation or ruling.
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23. Section 409A .
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
PERNIX THERAPEUTICS HOLDINGS, INC.
By:
/s/ Tasos Konidaris
Tasos Konidaris
Director
/s/ John A. Sedor
John A. Sedor
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EXHIBIT A
Release
You, for yourself, your spouse and your agents, successors, heirs, executors, administrators and assigns, hereby irrevocably and unconditionally forever release and discharge Pernix Therapeutics Holdings, Inc. (the " Corporation "), its parents, divisions, subsidiaries and affiliates and its and their current and former owners, directors, officers, stockholders, insurers, benefit plans, representatives, agents and employees, and each of their predecessors, successors, and assigns (collectively, the " Releasees "), from any and all actual or potential claims or liabilities of any kind or nature, including, but not limited to, any claims arising out of or related to your employment and separation from employment with the Corporation and any services that you provided to the Corporation; any claims that you may have for any benefits under the Employee Retirement Income Security Act of 1974 ("ERISA") (except for vested ERISA benefits); any claims that you may have for discrimination, harassment or retaliation of any kind or based upon any legally protected classification or activity; any claims that you may have under Title VII of the Civil Rights Acts of 1964, the Civil Rights Act of 1866 and 1964, as amended, 42 U.S.C. § 1981, the Age Discrimination in Employment Act, the Older Workers Benefit Protection Act, the Americans with Disabilities Act, 42 U.S.C. § 1981, 42 U.S.C. § 1983, the Family Medical Leave Act and any similar state law, the Fair Credit Reporting Act and any similar state law, the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. , the Worker Adjustment and Retraining Notification Act, 29 U.S.C. § 2101, et seq. , the Equal Pay Act and any similar state law, the New Jersey Law Against Discrimination, the New Jersey Conscientious Employee Protection Act, the New Jersey Family Leave Act, the New Jersey Wage Payment Law, the New Jersey Wage and Hour Law, the New Jersey Equal Pay Act, and any retaliation claims that you may have under the New Jersey Workers' Compensation Law, as well as any amendments to any such laws; any claims that you may have for any violation of any federal or state constitutions or executive orders; any claims for wrongful or constructive discharge, violation of public policy, breach of contract or promise (oral, written, express or implied), personal injury not covered by workers' compensation benefits, misrepresentation, negligence, fraud, estoppel, defamation, infliction of emotional distress, contribution and any claims that you may have under any other federal, state or local law, including those not specifically listed in this Release, that you, your heirs, executors, administrators, successors, and assigns now have, ever had or may hereafter have, whether known or unknown, suspected or unsuspected, up to and including the date of your execution of this Release.
For the purpose of implementing a full and complete release and discharge of the Releasees as set forth above, you acknowledge that this Release is intended to include in its effect, without limitation, all claims known or unknown that you have or may have against the Releasees which arise out of or relate to your employment, including but not limited to performance or termination of employment with the Corporation, except for, and notwithstanding anything in this Release to the contrary, claims which cannot be released solely by private agreement. This Release also excludes (i) any claims relating to any right you may have to payments pursuant to Section 5(b) or Section 5(c), as applicable, of the Employment Agreement, entered into as of November 3, 2016, by and between the Corporation and you (the " Employment Agreement "), (ii) any Accrued Obligations (as defined in the Employment Agreement), (iii) any entitlements to vested equity rights, (iv) any claim for workers' compensation benefits and (v) any rights you may have to indemnification or directors' and officers' liability insurance under the Corporation's bylaws or certificate of incorporation, Section 20 of the Employment Agreement, and any indemnification agreement to which you are a party or beneficiary or applicable law, as a result of having served as an officer, director or employee of the Corporation or any of its affiliates. You further acknowledge and agree that you have received all leave, compensation and reinstatement benefits to which you were entitled through the date of your execution of this Release (other than the Accrued Obligations), and that you were not subjected to any improper treatment, conduct or actions as a result of a request for leave, compensation or reinstatement.
You affirm, by signing this Release, that you have not suffered any unreported injury or illness arising from your employment, and that you have not filed with any federal, state or local court any actions against Releasees relating to or arising out of your employment with or separation from the Corporation.
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 the U.S. Equal Employment Opportunity Commission, the Department of Labor, the National Labor Relations Board, the Department of Justice, the Securities and Exchange Commission, the Congress, and any agency Inspector General (collectively, the " Regulators "), or from making other disclosures that are protected under the whistleblower provisions of state or federal law or regulation. However, to the maximum extent permitted by law, you are waiving your right to receive any individual monetary relief from the Company or any others covered by the Release resulting from such claims or conduct, regardless of whether you or another party has filed them, 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. 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 law.
Pursuant to 18 USC § 1833(b), you understand that an individual may not be held liable under any criminal or civil federal or state trade secret law for disclosure of a trade secret: (i) made in confidence to a government official, either directly or indirectly, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law or (ii) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Additionally, you understand that an individual suing an employer for retaliation based on the reporting of a suspected violation of law may disclose a trade secret to his or her attorney and use the trade secret information in the court proceeding, so long as any document containing the trade secret is filed under seal and the individual does not disclose the trade secret except pursuant to court order. Nothing in this Release is intended to conflict with 18 USC § 1833(b) or create liability for disclosures of trade secrets that are expressly allowed by 18 USC § 1833(b).
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You acknowledge:
PLEASE READ CAREFULLY. THIS RELEASE INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
ACKNOWLEDGED AND AGREED
____________________________________________________
John A. Sedor Date
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EXHIBIT B
Stock Option Award Agreement under 2015 Plan
AMENDED AND RESTATED
PERNIX THERAPEUTICS HOLDINGS, INC.
2015 OMNIBUS INCENTIVE PLAN
NONQUALIFIED STOCK OPTION AGREEMENT
COVER SHEET
Pernix Therapeutics Holdings, Inc., a Maryland corporation (the " Company "), hereby grants a nonqualified stock option to purchase shares of its common stock, par value $0.01 per share (the " Common Stock "), to the Grantee named below (the " Option "). Additional terms and conditions of the grant are set forth on this Cover Sheet and in the attached Nonqualified Stock Option Agreement (together, the " Agreement "), in the Company's Amended and Restated 2015 Omnibus Incentive Plan (as further amended from time to time, the " Plan ") and in your Employment Agreement with the Company, dated as of November 3, 2016 (the " Employment Agreement ").
Grantee Name: John A. Sedor
Grant Date: November 3, 2016
Number of shares of Common Stock: 40,000
Exercise Price per share of Common Stock: $3.36
Vesting Start Date: July 26, 2016
Vesting Schedule: One-third (1/3) of the Option shall vest on each of the first, second and third anniversaries of the Vesting Start Date, subject to your continued service with the Company on the applicable vesting date.
Expiration Date: November 2, 2026
By your signature below, you agree to all of the terms and conditions described in the Agreement and in the Plan, a copy of which will be provided on request. You agree that your Employment Agreement will control in the event any provision of this Agreement should appear to be inconsistent with your Employment Agreement. You further acknowledge that you have carefully reviewed the Plan, and agree that the Plan will control in the event any provision of this Agreement should appear to be inconsistent with the Plan.
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John A. Sedor |
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Company: |
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Tasos Konidaris Director
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Attachment
This is not a share certificate or a negotiable instrument
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AMENDED AND RESTATED
PERNIX THERAPEUTICS HOLDINGS, INC.
2015 OMNIBUS INCENTIVE PLAN
NONQUALIFIED STOCK OPTION AGREEMENT
Nonqualified Stock Option |
This Agreement evidences the grant of an Option exercisable for the number of shares of Common Stock set forth on the Cover Sheet of this Agreement and subject to the vesting and other terms and conditions set forth in this Agreement and in the Plan. The Option is not intended to be an incentive stock option under Section 422 of the Code and will be interpreted accordingly. |
Vesting |
The Option will vest in accordance with the Vesting Schedule set forth on the Cover Sheet, subject to your continued service through each vesting date. You may not vest in more than the number of Options set forth on the Cover Sheet of this Agreement. Unless the termination of your service triggers accelerated vesting or other treatment of your Options pursuant to the terms of this Agreement or your Employment Agreement, you will immediately and automatically forfeit to the Company all of your unvested Options in the event your service terminates for any reason not addressed in this Agreement or your Employment Agreement.
Notwithstanding the Vesting Schedule set forth on the Cover Sheet, if your service is terminated by the Company without Cause (other than as a result of your death or Disability), on account of non-renewal of your Employment Agreement by the Company or if you resign with Good Reason (as each such term is defined below), your Option will become 100% vested upon such termination of service. For all purposes of this Agreement, the terms "Cause", "Good Reason" and "Disability" shall have the meanings set forth in your Employment Agreement.
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Change of Control |
In the event of a Change of Control, your Option will be treated in the manner so provided in Section 10 of the Plan. |
Expiration of Option |
In all events, the Option will expire on the Expiration Date set forth on the Cover Sheet of this Agreement. The Option will expire earlier if your service terminates, as described below. Termination Other than for Cause or due to Death or Disability . If your service is terminated by the Company for any reason other than for Cause, death, or Disability, on account of non-renewal of your Employment Agreement by the Company or due to your resignation with Good Reason, you may exercise the vested portion of the Option, but only within the time period ending on the six (6) month anniversary of the termination of your service. Resignation without Good Reason . If you resign without Good Reason, you may exercise the vested portion of the Option, but only within the time period ending on the three (3) month anniversary of the termination of your service.
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In the event of your termination of service, this Agreement will continue to be applied with respect to you, following which the Option will be exercisable by the transferee only to the extent and for the periods specified in this Agreement. |
Retention Rights |
This Agreement and the grant of the Option do not give you the right to be retained by the Company or any affiliate in any capacity. Unless otherwise specified in any employment or other written agreement between you and the Company or any affiliate, including your Employment Agreement, the Company and any affiliate reserve the right to terminate your service at any time and for any reason. |
Shareholder Rights |
You, or your estate or heirs, have no rights as a shareholder of the Company until the shares of Common Stock have been issued upon exercise of the Option and either a certificate evidencing the shares of Common Stock has been issued or an appropriate entry has been made on the Company's books. No adjustments are made for dividends, distributions, or other rights if the applicable record date occurs before your certificate is issued or the appropriate book entry is made, except as described in the Plan. The Option will be subject to the terms of any applicable agreement of merger, liquidation, or reorganization in the event that the Company is subject to such corporate activity. |
Applicable Law |
The validity and construction of this Agreement will be governed by, and construed and interpreted in accordance with, the laws of the State of Maryland, other than any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of this Agreement to the substantive laws of any other jurisdiction. |
The Plan |
The text of the Plan is incorporated into this Agreement. Certain capitalized terms used in this Agreement are defined in the Plan, and have the meaning set forth in the Plan, unless otherwise referenced as being defined in the Employment Agreement . This Agreement and the Plan constitute the entire understanding between you and the Company regarding the Option. Any prior agreements, commitments, or negotiations concerning the Option are superseded; except that the Employment Agreement and any other written confidentiality, non-competition, non-solicitation and/or severance agreement, or any other written agreement between you and the Company or any affiliate, as applicable, will supersede this Agreement with respect to its subject matter. |
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Data Privacy |
To administer the Plan, the Company may process personal data about you. This data includes, without limitation, information provided in this Agreement and any changes to such information, other appropriate personal and financial data about you, including your contact information, payroll information and any other information that the Company deems appropriate to facilitate the administration of the Plan. By accepting the Option, you give explicit consent to the Company to process any such personal data. |
Notice Delivery |
By accepting the Option, you agree that notices may be given to you in writing either at your home or mailing address as shown in the records of the Company or any affiliate or by electronic transmission (including e-mail or reference to a website or other URL) sent to you through the normal process employed by the Company or any affiliate, as applicable, for communicating electronically with its employees. |
By signing this Agreement, you agree to all of the terms and conditions described above and in the Plan.
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EXHIBIT C
Stock Option Award Agreement under 2009 Plan
AMENDED AND RESTATED
PERNIX THERAPEUTICS HOLDINGS, INC.
2009 STOCK INCENTIVE PLAN
NONQUALIFIED STOCK OPTION AGREEMENT
COVER SHEET
Pernix Therapeutics Holdings, Inc., a Maryland corporation (the " Company "), hereby grants a nonqualified stock option to purchase shares of its common stock, par value $0.01 per share (the " Common Stock "), to the Grantee named below (the " Option "). Additional terms and conditions of the grant are set forth on this Cover Sheet and in the attached Nonqualified Stock Option Agreement (together, the " Agreement "), in the Company's Amended and Restated 2009 Stock Incentive Plan (as further amended from time to time, the " Plan ") and in your Employment Agreement with the Company, dated as of November 3, 2016 (the " Employment Agreement ").
Grantee Name: John A. Sedor
Grant Date: November 3, 2016
Number of shares of Common Stock: 150,000
Exercise Price per share of Common Stock: $3.15
Vesting Start Date: July 26, 2016
Vesting Schedule: One-third (1/3) of the Option shall vest on each of the first, second and third anniversaries of the Vesting Start Date, subject to your continued service with the Company on the applicable vesting date.
Expiration Date: November 2, 2026
By your signature below, you agree to all of the terms and conditions described in the Agreement and in the Plan, a copy of which will be provided on request. You agree that your Employment Agreement will control in the event any provision of this Agreement should appear to be inconsistent with your Employment Agreement. You further acknowledge that you have carefully reviewed the Plan, and agree that the Plan will control in the event any provision of this Agreement should appear to be inconsistent with the Plan.
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November 3, 2016 |
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John A. Sedor |
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November 3, 2016 |
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Tasos Konidaris Director
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Attachment
This is not a share certificate or a negotiable instrument
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AMENDED AND RESTATED
NONQUALIFIED STOCK OPTION AGREEMENT
Nonqualified Stock Option
This Agreement evidences the grant of an Option exercisable for the number of shares of Common Stock set forth on the Cover Sheet of this
Agreement and subject to the vesting and other terms and conditions set forth in this Agreement and in the Plan. The Option is not intended to be an incentive stock option under Section
422 of the Code and will be interpreted accordingly.
Vesting
The Option will vest in accordance with the Vesting Schedule set forth on the Cover Sheet, subject to your continued service through each vesting
date. You may not vest in more than the number of Options set forth on the Cover Sheet of this Agreement.
Unless the termination of your service triggers accelerated vesting or other treatment of your Options pursuant to the terms of this Agreement or your Employment
Agreement, you will immediately and automatically forfeit to the Company all of your unvested Options in the event your service terminates for any reason not addressed in this Agreement
or your Employment Agreement.
Notwithstanding the Vesting Schedule set forth on the Cover Sheet, if your service is terminated by the Company without Cause (other than as a result of your death
or Disability), on account of non-renewal of your Employment Agreement by the Company or if you resign with Good Reason (as each such term is defined below), your Option will become
100% vested upon such termination of service. For all purposes of this Agreement, the terms "Cause", "Good Reason" and "Disability" shall have the
meanings set forth in your Employment Agreement.
Change of Control
In the event of a Change of Control, your Option will be treated in the manner so provided in Section 12.10 of the Plan.
Expiration of Option
In all events, the Option will expire on the Expiration Date set forth on the Cover Sheet of this Agreement. The Option will expire earlier if your
service terminates, as described below.
Termination Other than for Cause or due to Death or Disability
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If your service is terminated by the Company for any reason other than for Cause,
death, or Disability, on account of non-renewal of your Employment Agreement by the Company or due to your resignation with Good Reason, you may exercise the vested portion of the
Option, but only within the time period ending on the six (6) month anniversary of the termination of your service.
Resignation without Good Reason
. If you resign without Good Reason, you may exercise the vested portion of the Option, but only within the time period
ending on the three (3) month anniversary of the termination of your service.
PERNIX THERAPEUTICS HOLDINGS, INC.
2009 STOCK INCENTIVE PLAN
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Termination due to Death or Disability . If your service terminates because of your death or Disability, if you die during the six (6)-month period after the termination of your service by the Company for any reason (other than for Cause, death or Disability), on account of non-renewal of your Employment Agreement by the Company or due to your resignation with Good Reason, or if you die during the three (3)-month period after your resignation without Good Reason, you may exercise the vested portion of your Option, but only within the time period ending on the date that is twelve (12) months after the termination of your service. Termination for Cause . If your service is terminated for Cause, the Option (including vested and unvested portions) will immediately terminate and no longer be exercisable. |
Leaves of Absence |
For purposes of the Option, your service does not terminate when you go on a bona fide employee leave of absence that the Company approves in writing if the terms of the leave provided for continued service crediting or when continued service crediting is required by applicable law or contract. Your service terminates in any event when the approved leave ends unless you immediately return to active employment. The Company, in its sole discretion, determines which leave counts for this purpose and when your service terminates for all purposes under the Plan. |
Notice of Exercise |
The Option may be exercised, in whole or in part, to purchase a whole number of vested shares of Common Stock of not less than 100 shares, unless the number of vested shares of Common Stock purchased is the total number available for purchase under the Option, by following the procedures described in the Plan and in this Agreement. When you wish to exercise the Option, you must exercise in the manner required or permitted by the Company. If someone other than you exercises the Option after your death, then that person must submit documentation reasonably acceptable to the Company verifying that the person has the legal authority to exercise the Option. |
Form of Payment |
When you exercise the Option, you must include payment of the Exercise Price indicated on the Cover Sheet of this Agreement for the shares of Common Stock that you are purchasing. Payment may be made in one (or a combination) of the following forms:
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In the event of your termination of service, this Agreement will continue to be applied with respect to you, following which the Option will be exercisable by the transferee only to the extent and for the periods specified in this Agreement. |
Retention Rights |
This Agreement and the grant of the Option do not give you the right to be retained by the Company or any affiliate in any capacity. Unless otherwise specified in any employment or other written agreement between you and the Company or any affiliate, including your Employment Agreement, the Company and any affiliate reserve the right to terminate your service at any time and for any reason. |
Shareholder Rights |
You, or your estate or heirs, have no rights as a shareholder of the Company until the shares of Common Stock have been issued upon exercise of the Option and either a certificate evidencing the shares of Common Stock has been issued or an appropriate entry has been made on the Company's books. No adjustments are made for dividends, distributions, or other rights if the applicable record date occurs before your certificate is issued or the appropriate book entry is made, except as described in the Plan. The Option will be subject to the terms of any applicable agreement of merger, liquidation, or reorganization in the event that the Company is subject to such corporate activity. |
Applicable Law |
The validity and construction of this Agreement will be governed by, and construed and interpreted in accordance with, the laws of the State of Maryland, other than any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of this Agreement to the substantive laws of any other jurisdiction. |
The Plan |
The text of the Plan is incorporated into this Agreement. Certain capitalized terms used in this Agreement are defined in the Plan, and have the meaning set forth in the Plan, unless otherwise referenced as being defined in the Employment Agreement . This Agreement and the Plan constitute the entire understanding between you and the Company regarding the Option. Any prior agreements, commitments, or negotiations concerning the Option are superseded; except that the Employment Agreement and any other written confidentiality, non-competition, non-solicitation and/or severance agreement, or any other written agreement between you and the Company or any affiliate, as applicable, will supersede this Agreement with respect to its subject matter. |
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Data Privacy |
To administer the Plan, the Company may process personal data about you. This data includes, without limitation, information provided in this Agreement and any changes to such information, other appropriate personal and financial data about you, including your contact information, payroll information and any other information that the Company deems appropriate to facilitate the administration of the Plan. By accepting the Option, you give explicit consent to the Company to process any such personal data. |
Notice Delivery |
By accepting the Option, you agree that notices may be given to you in writing either at your home or mailing address as shown in the records of the Company or any affiliate or by electronic transmission (including e-mail or reference to a website or other URL) sent to you through the normal process employed by the Company or any affiliate, as applicable, for communicating electronically with its employees. |
By signing this Agreement, you agree to all of the terms and conditions described above and in the Plan.
6
EXHIBIT D
Restricted Share Unit Award Agreement under 2015 Plan
AMENDED AND RESTATED
PERNIX THERAPEUTICS HOLDINGS, INC.
2015 OMNIBUS INCENTIVE PLAN
RESTRICTED SHARE UNIT AGREEMENT
COVER SHEET
Pernix Therapeutics Holdings, Inc., a Maryland corporation (the " Company "), hereby grants restricted share units relating to shares of its common stock, par value $0.01 per share (the " Common Stock "), to the Grantee named below (the " RSU "). Additional terms and conditions of the grant are set forth on this Cover Sheet and in the attached Restricted Share Unit Agreement (together, the " Agreement "), in the Company's Amended and Restated 2015 Omnibus Incentive Plan (as further amended from time to time, the " Plan ") and in your Employment Agreement with the Company, dated as of November 3, 2016 (the " Employment Agreement ").
Grantee Name: John A. Sedor
Grant Date: November 3, 2016
Number of Restricted Share Units: 131,100
Vesting Start Date: July 26, 2016
Vesting Schedule: One-third (1/3) of the RSUs shall vest on each of the first, second and third anniversaries of the Vesting Start Date, subject to your continued service with the Company on the applicable vesting date.
By your signature below, you agree to all of the terms and conditions described in the Agreement and in the Plan, a copy of which will be provided on request. You agree that your Employment Agreement will control in the event any provision of this Agreement should appear to be inconsistent with your Employment Agreement. You further acknowledge that you have carefully reviewed the Plan, and agree that the Plan will control in the event any provision of this Agreement should appear to be inconsistent with the Plan.
Grantee: |
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Date: |
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John A. Sedor |
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Company: |
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Date: |
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Tasos Konidaris Director
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Attachment
This is not a share certificate or a negotiable instrument
.
AMENDED AND RESTATED
RESTRICTED SHARE UNIT AGREEMENT
PERNIX THERAPEUTICS HOLDINGS, INC.
2015 OMNIBUS INCENTIVE PLAN
Restricted Share Units |
This Agreement evidences an award of RSUs in the number set forth on the Cover Sheet of this Agreement and subject to the vesting and other terms and conditions set forth in this Agreement and in the Plan. |
Vesting |
The RSUs will vest in accordance with the Vesting Schedule set forth on the Cover Sheet, subject to your continued service through each vesting date. You may not vest in more than the number of shares of Common Stock covered by your RSUs, as set forth on the Cover Sheet of this Agreement. Unless the termination of your service triggers accelerated vesting or other treatment of your RSUs pursuant to the terms of this Agreement or your Employment Agreement, you will immediately and automatically forfeit to the Company all of your unvested RSUs in the event your service terminates for any reason not addressed in this Agreement or your Employment Agreement.
Notwithstanding the Vesting Schedule set forth on the Cover Sheet, if your service is terminated by the Company without Cause (other than as a result of your death or Disability), on account of non-renewal of your Employment Agreement by the Company or if you resign with Good Reason (as each such term is defined below), your RSUs will become 100% vested upon such termination of service. For all purposes of this Agreement, the terms "Cause", "Good Reason" and "Disability" shall have the meanings set forth in your Employment Agreement.
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Change of Control |
In the event of a Change of Control, your RSUs will be treated in the manner so provided in Section 10 of the Plan. |
Leaves of Absence |
For purposes of the RSUs, your service does not terminate when you go on a bona fide employee leave of absence that the Company approves in writing if the terms of the leave provided for continued service crediting or when continued service crediting is required by applicable law or contract. Your service terminates in any event when the approved leave ends unless you immediately return to active employment. The Company, in its sole discretion, determines which leave counts for this purpose and when your service terminates for all purposes under the Plan. |
Dividend Equivalents |
Should any dividend be declared and paid with respect to the shares of Common Stock during the period between the Grant Date and the date on which the RSUs are delivered as shares of Common Stock, the Company shall credit to a dividend equivalent bookkeeping account the value of such
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Retention Rights |
This Agreement and the RSUs evidenced by this Agreement do not give you the right to be retained by the Company or any affiliate in any capacity. Unless otherwise specified in any employment or other written agreement between you and the Company or any affiliate, including your Employment Agreement, the Company and any affiliate reserve the right to terminate your service at any time and for any reason. |
Shareholder Rights |
You, or your estate or heirs, have no rights as a shareholder of the Company until the shares of Common Stock have been issued and either a certificate evidencing the shares of Common Stock has been issued or an appropriate entry has been made on the Company's books. No adjustments are made for dividends, distributions, or other rights if the applicable record date occurs before your certificate is issued or the appropriate book entry is made, except as described in the Plan. The RSUs will be subject to the terms of any applicable agreement of merger, liquidation, or reorganization in the event that the Company is subject to such corporate activity. |
Applicable Law |
The validity and construction of this Agreement will be governed by, and construed and interpreted in accordance with, the laws of the State of Maryland, other than any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of this Agreement to the substantive laws of any other jurisdiction. |
The Plan |
The text of the Plan is incorporated into this Agreement. Certain capitalized terms used in this Agreement are defined in the Plan, and have the meaning set forth in the Plan, unless otherwise referenced as being defined in the Employment Agreement . This Agreement and the Plan constitute the entire understanding between you and the Company regarding the RSUs. Any prior agreements, commitments, or negotiations concerning the RSUs are superseded; except that the Employment Agreement and any other written confidentiality, non-competition, non-solicitation, and/or severance agreement, or any other written agreement between you and the Company or any affiliate, as applicable, will supersede this Agreement with respect to its subject matter. |
Data Privacy |
To administer the Plan, the Company may process personal data about you. This data includes, without limitation, information provided in this Agreement and any changes to such information, other appropriate personal and financial data about you, including your contact information, payroll information and any other information that the Company deems appropriate to facilitate the administration of the Plan.
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By accepting the RSUs, you give explicit consent to the Company to process any such personal data. |
Code Section 409A |
The grant of your RSUs under this Agreement is intended to comply with Section 409A of the Code (" Section 409A ") to the extent subject thereto, and, accordingly, to the maximum extent permitted, this Agreement will be interpreted and administered to be in compliance with Section 409A. Notwithstanding anything to the contrary in this Agreement, the Company is not making any representation hereunder as to the particular tax treatment of the RSUs. To the extent that the RSUs constitute "deferred compensation" under Section 409A, a termination of service occurs only upon an event that would be a "separation from service" within the meaning of Section 409A. If, at the time of your separation from service, (i) you are a "specified employee" within the meaning of Section 409A, and (ii) the Company makes a good faith determination that an amount payable on account of your separation from service constitutes deferred compensation (within the meaning of Section 409A), the payment of which is required to be delayed pursuant to the six (6)-month delay rule set forth in Section 409A to avoid taxes or penalties under Section 409A (the " Delay Period "), then the Company will not pay such amount on the otherwise scheduled payment date but will instead pay it in a lump sum on the first business day after the Delay Period (or upon your death, if earlier), without interest. Each installment of RSUs that vest under this Agreement (if there is more than one installment) will be considered one of a series of separate payments for purposes of Section 409A. |
Disclaimer of Rights |
The grant of RSUs under this Agreement will in no way be interpreted to require the Company to transfer any amounts to a third-party trustee or otherwise hold any amounts in trust or escrow for payment to you. You will have no rights under this Agreement or the Plan other than those of a general unsecured creditor of the Company. RSUs represent unfunded and unsecured obligations of the Company, subject to the terms and conditions of the Plan and this Agreement. |
Notice Delivery |
By accepting the RSUs, you agree that notices may be given to you in writing either at your home or mailing address as shown in the records of the Company or any affiliate or by electronic transmission (including e-mail or reference to a website or other URL) sent to you through the normal process employed by the Company or any affiliate, as applicable, for communicating electronically with its employees. |
By signing this Agreement, you agree to all of the terms and conditions described above and in the Plan.
Exhibit 10.3
AMENDED AND RESTATED
PERNIX THERAPEUTICS HOLDINGS, INC.
2009 STOCK INCENTIVE PLAN
NONQUALIFIED STOCK OPTION AGREEMENT
COVER SHEET
Pernix Therapeutics Holdings, Inc., a Maryland corporation (the " Company "), hereby grants a nonqualified stock option to purchase shares of its common stock, par value $0.01 per share (the " Common Stock "), to the Grantee named below (the " Option "). Additional terms and conditions of the grant are set forth on this Cover Sheet and in the attached Nonqualified Stock Option Agreement (together, the " Agreement "), in the Company's Amended and Restated 2009 Stock Incentive Plan (as further amended from time to time, the " Plan ") and in your Employment Agreement with the Company, dated as of November 3, 2016 (the " Employment Agreement ").
Grantee Name: John A. Sedor
Grant Date: November 3, 2016
Number of shares of Common Stock: 150,000
Exercise Price per share of Common Stock: $3.15
Vesting Start Date: July 26, 2016
Vesting Schedule: One-third (1/3) of the Option shall vest on each of the first, second and third anniversaries of the Vesting Start Date, subject to your continued service with the Company on the applicable vesting date.
Expiration Date: November 2, 2026
By your signature below, you agree to all of the terms and conditions described in the Agreement and in the Plan, a copy of which will be provided on request. You agree that your Employment Agreement will control in the event any provision of this Agreement should appear to be inconsistent with your Employment Agreement. You further acknowledge that you have carefully reviewed the Plan, and agree that the Plan will control in the event any provision of this Agreement should appear to be inconsistent with the Plan.
Grantee: |
/s/ John A. Sedor |
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Date: |
November 3, 2016 |
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John A. Sedor |
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Company: |
/s/ Tasos Konidaris |
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Date: |
November 3, 2016 |
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Tasos Konidaris Director
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Attachment
This is not a share certificate or a negotiable instrument
.
AMENDED AND RESTATED
NONQUALIFIED STOCK OPTION AGREEMENT
Nonqualified Stock Option
This Agreement evidences the grant of an Option exercisable for the number of shares of Common Stock set forth on the Cover Sheet of this
Agreement and subject to the vesting and other terms and conditions set forth in this Agreement and in the Plan. The Option is not intended to be an incentive stock option under Section
422 of the Code and will be interpreted accordingly.
Vesting
The Option will vest in accordance with the Vesting Schedule set forth on the Cover Sheet, subject to your continued service through each vesting
date. You may not vest in more than the number of Options set forth on the Cover Sheet of this Agreement.
Unless the termination of your service triggers accelerated vesting or other treatment of your Options pursuant to the terms of this Agreement or your Employment
Agreement, you will immediately and automatically forfeit to the Company all of your unvested Options in the event your service terminates for any reason not addressed in this Agreement
or your Employment Agreement.
Notwithstanding the Vesting Schedule set forth on the Cover Sheet, if your service is terminated by the Company without Cause (other than as a result of your death
or Disability), on account of non-renewal of your Employment Agreement by the Company or if you resign with Good Reason (as each such term is defined below), your Option will become
100% vested upon such termination of service. For all purposes of this Agreement, the terms "Cause", "Good Reason" and "Disability" shall have the
meanings set forth in your Employment Agreement.
Change of Control
In the event of a Change of Control, your Option will be treated in the manner so provided in Section 12.10 of the Plan.
Expiration of Option
In all events, the Option will expire on the Expiration Date set forth on the Cover Sheet of this Agreement. The Option will expire earlier if your
service terminates, as described below.
Termination Other than for Cause or due to Death or Disability
.
If your service is terminated by the Company for any reason other than for Cause,
death, or Disability, on account of non-renewal of your Employment Agreement by the Company or due to your resignation with Good Reason, you may exercise the vested portion of the
Option, but only within the time period ending on the six (6) month anniversary of the termination of your service.
Resignation without Good Reason
. If you resign without Good Reason, you may exercise the vested portion of the Option, but only within the time period
ending on the three (3) month anniversary of the termination of your service.
PERNIX THERAPEUTICS HOLDINGS, INC.
2009 STOCK INCENTIVE PLAN
2
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Termination due to Death or Disability . If your service terminates because of your death or Disability, if you die during the six (6)-month period after the termination of your service by the Company for any reason (other than for Cause, death or Disability), on account of non-renewal of your Employment Agreement by the Company or due to your resignation with Good Reason, or if you die during the three (3)-month period after your resignation without Good Reason, you may exercise the vested portion of your Option, but only within the time period ending on the date that is twelve (12) months after the termination of your service. Termination for Cause . If your service is terminated for Cause, the Option (including vested and unvested portions) will immediately terminate and no longer be exercisable. |
Leaves of Absence |
For purposes of the Option, your service does not terminate when you go on a bona fide employee leave of absence that the Company approves in writing if the terms of the leave provided for continued service crediting or when continued service crediting is required by applicable law or contract. Your service terminates in any event when the approved leave ends unless you immediately return to active employment. The Company, in its sole discretion, determines which leave counts for this purpose and when your service terminates for all purposes under the Plan. |
Notice of Exercise |
The Option may be exercised, in whole or in part, to purchase a whole number of vested shares of Common Stock of not less than 100 shares, unless the number of vested shares of Common Stock purchased is the total number available for purchase under the Option, by following the procedures described in the Plan and in this Agreement. When you wish to exercise the Option, you must exercise in the manner required or permitted by the Company. If someone other than you exercises the Option after your death, then that person must submit documentation reasonably acceptable to the Company verifying that the person has the legal authority to exercise the Option. |
Form of Payment |
When you exercise the Option, you must include payment of the Exercise Price indicated on the Cover Sheet of this Agreement for the shares of Common Stock that you are purchasing. Payment may be made in one (or a combination) of the following forms:
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4
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In the event of your termination of service, this Agreement will continue to be applied with respect to you, following which the Option will be exercisable by the transferee only to the extent and for the periods specified in this Agreement. |
Retention Rights |
This Agreement and the grant of the Option do not give you the right to be retained by the Company or any affiliate in any capacity. Unless otherwise specified in any employment or other written agreement between you and the Company or any affiliate, including your Employment Agreement, the Company and any affiliate reserve the right to terminate your service at any time and for any reason. |
Shareholder Rights |
You, or your estate or heirs, have no rights as a shareholder of the Company until the shares of Common Stock have been issued upon exercise of the Option and either a certificate evidencing the shares of Common Stock has been issued or an appropriate entry has been made on the Company's books. No adjustments are made for dividends, distributions, or other rights if the applicable record date occurs before your certificate is issued or the appropriate book entry is made, except as described in the Plan. The Option will be subject to the terms of any applicable agreement of merger, liquidation, or reorganization in the event that the Company is subject to such corporate activity. |
Applicable Law |
The validity and construction of this Agreement will be governed by, and construed and interpreted in accordance with, the laws of the State of Maryland, other than any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of this Agreement to the substantive laws of any other jurisdiction. |
The Plan |
The text of the Plan is incorporated into this Agreement. Certain capitalized terms used in this Agreement are defined in the Plan, and have the meaning set forth in the Plan, unless otherwise referenced as being defined in the Employment Agreement . This Agreement and the Plan constitute the entire understanding between you and the Company regarding the Option. Any prior agreements, commitments, or negotiations concerning the Option are superseded; except that the Employment Agreement and any other written confidentiality, non-competition, non-solicitation and/or severance agreement, or any other written agreement between you and the Company or any affiliate, as applicable, will supersede this Agreement with respect to its subject matter. |
5
Data Privacy |
To administer the Plan, the Company may process personal data about you. This data includes, without limitation, information provided in this Agreement and any changes to such information, other appropriate personal and financial data about you, including your contact information, payroll information and any other information that the Company deems appropriate to facilitate the administration of the Plan. By accepting the Option, you give explicit consent to the Company to process any such personal data. |
Notice Delivery |
By accepting the Option, you agree that notices may be given to you in writing either at your home or mailing address as shown in the records of the Company or any affiliate or by electronic transmission (including e-mail or reference to a website or other URL) sent to you through the normal process employed by the Company or any affiliate, as applicable, for communicating electronically with its employees. |
By signing this Agreement, you agree to all of the terms and conditions described above and in the Plan.
6
Exhibit 10.4
AMENDED AND RESTATED
PERNIX THERAPEUTICS HOLDINGS, INC.
2015 OMNIBUS INCENTIVE PLAN
NONQUALIFIED STOCK OPTION AGREEMENT
COVER SHEET
Pernix Therapeutics Holdings, Inc., a Maryland corporation (the " Company "), hereby grants a nonqualified stock option to purchase shares of its common stock, par value $0.01 per share (the " Common Stock "), to the Grantee named below (the " Option "). Additional terms and conditions of the grant are set forth on this Cover Sheet and in the attached Nonqualified Stock Option Agreement (together, the " Agreement "), in the Company's Amended and Restated 2015 Omnibus Incentive Plan (as further amended from time to time, the " Plan ") and in your Employment Agreement with the Company, dated as of November 3, 2016 (the " Employment Agreement ").
Grantee Name: John A. Sedor
Grant Date: November 3, 2016
Number of shares of Common Stock: 40,000
Exercise Price per share of Common Stock: $3.36
Vesting Start Date: July 26, 2016
Vesting Schedule: One-third (1/3) of the Option shall vest on each of the first, second and third anniversaries of the Vesting Start Date, subject to your continued service with the Company on the applicable vesting date.
Expiration Date: November 2, 2026
By your signature below, you agree to all of the terms and conditions described in the Agreement and in the Plan, a copy of which will be provided on request. You agree that your Employment Agreement will control in the event any provision of this Agreement should appear to be inconsistent with your Employment Agreement. You further acknowledge that you have carefully reviewed the Plan, and agree that the Plan will control in the event any provision of this Agreement should appear to be inconsistent with the Plan.
Grantee: |
/s/ John A. Sedor |
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Date: |
November 3, 2016 |
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John A. Sedor |
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Company: |
/s/ Tasos Konidaris |
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Date: |
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Tasos Konidaris Director
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Attachment
This is not a share certificate or a negotiable instrument
.
AMENDED AND RESTATED
PERNIX THERAPEUTICS HOLDINGS, INC.
2015 OMNIBUS INCENTIVE PLAN
NONQUALIFIED STOCK OPTION AGREEMENT
Nonqualified Stock Option |
This Agreement evidences the grant of an Option exercisable for the number of shares of Common Stock set forth on the Cover Sheet of this Agreement and subject to the vesting and other terms and conditions set forth in this Agreement and in the Plan. The Option is not intended to be an incentive stock option under Section 422 of the Code and will be interpreted accordingly. |
Vesting |
The Option will vest in accordance with the Vesting Schedule set forth on the Cover Sheet, subject to your continued service through each vesting date. You may not vest in more than the number of Options set forth on the Cover Sheet of this Agreement. Unless the termination of your service triggers accelerated vesting or other treatment of your Options pursuant to the terms of this Agreement or your Employment Agreement, you will immediately and automatically forfeit to the Company all of your unvested Options in the event your service terminates for any reason not addressed in this Agreement or your Employment Agreement.
Notwithstanding the Vesting Schedule set forth on the Cover Sheet, if your service is terminated by the Company without Cause (other than as a result of your death or Disability), on account of non-renewal of your Employment Agreement by the Company or if you resign with Good Reason (as each such term is defined below), your Option will become 100% vested upon such termination of service. For all purposes of this Agreement, the terms "Cause", "Good Reason" and "Disability" shall have the meanings set forth in your Employment Agreement.
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Change of Control |
In the event of a Change of Control, your Option will be treated in the manner so provided in Section 10 of the Plan. |
Expiration of Option |
In all events, the Option will expire on the Expiration Date set forth on the Cover Sheet of this Agreement. The Option will expire earlier if your service terminates, as described below. Termination Other than for Cause or due to Death or Disability . If your service is terminated by the Company for any reason other than for Cause, death, or Disability, on account of non-renewal of your Employment Agreement by the Company or due to your resignation with Good Reason, you may exercise the vested portion of the Option, but only within the time period ending on the six (6) month anniversary of the termination of your service. Resignation without Good Reason . If you resign without Good Reason, you may exercise the vested portion of the Option, but only within the time period ending on the three (3) month anniversary of the termination of your service.
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4
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In the event of your termination of service, this Agreement will continue to be applied with respect to you, following which the Option will be exercisable by the transferee only to the extent and for the periods specified in this Agreement. |
Retention Rights |
This Agreement and the grant of the Option do not give you the right to be retained by the Company or any affiliate in any capacity. Unless otherwise specified in any employment or other written agreement between you and the Company or any affiliate, including your Employment Agreement, the Company and any affiliate reserve the right to terminate your service at any time and for any reason. |
Shareholder Rights |
You, or your estate or heirs, have no rights as a shareholder of the Company until the shares of Common Stock have been issued upon exercise of the Option and either a certificate evidencing the shares of Common Stock has been issued or an appropriate entry has been made on the Company's books. No adjustments are made for dividends, distributions, or other rights if the applicable record date occurs before your certificate is issued or the appropriate book entry is made, except as described in the Plan. The Option will be subject to the terms of any applicable agreement of merger, liquidation, or reorganization in the event that the Company is subject to such corporate activity. |
Applicable Law |
The validity and construction of this Agreement will be governed by, and construed and interpreted in accordance with, the laws of the State of Maryland, other than any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of this Agreement to the substantive laws of any other jurisdiction. |
The Plan |
The text of the Plan is incorporated into this Agreement. Certain capitalized terms used in this Agreement are defined in the Plan, and have the meaning set forth in the Plan, unless otherwise referenced as being defined in the Employment Agreement . This Agreement and the Plan constitute the entire understanding between you and the Company regarding the Option. Any prior agreements, commitments, or negotiations concerning the Option are superseded; except that the Employment Agreement and any other written confidentiality, non-competition, non-solicitation and/or severance agreement, or any other written agreement between you and the Company or any affiliate, as applicable, will supersede this Agreement with respect to its subject matter. |
5
Data Privacy |
To administer the Plan, the Company may process personal data about you. This data includes, without limitation, information provided in this Agreement and any changes to such information, other appropriate personal and financial data about you, including your contact information, payroll information and any other information that the Company deems appropriate to facilitate the administration of the Plan. By accepting the Option, you give explicit consent to the Company to process any such personal data. |
Notice Delivery |
By accepting the Option, you agree that notices may be given to you in writing either at your home or mailing address as shown in the records of the Company or any affiliate or by electronic transmission (including e-mail or reference to a website or other URL) sent to you through the normal process employed by the Company or any affiliate, as applicable, for communicating electronically with its employees. |
By signing this Agreement, you agree to all of the terms and conditions described above and in the Plan.
6
Exhibit 10.5
AMENDED AND RESTATED
PERNIX THERAPEUTICS HOLDINGS, INC.
2015 OMNIBUS INCENTIVE PLAN
RESTRICTED SHARE UNIT AGREEMENT
COVER SHEET
Pernix Therapeutics Holdings, Inc., a Maryland corporation (the " Company "), hereby grants restricted share units relating to shares of its common stock, par value $0.01 per share (the " Common Stock "), to the Grantee named below (the " RSU "). Additional terms and conditions of the grant are set forth on this Cover Sheet and in the attached Restricted Share Unit Agreement (together, the " Agreement "), in the Company's Amended and Restated 2015 Omnibus Incentive Plan (as further amended from time to time, the " Plan ") and in your Employment Agreement with the Company, dated as of November 3, 2016 (the " Employment Agreement ").
Grantee Name: John A. Sedor
Grant Date: November 3, 2016
Number of Restricted Share Units: 131,100
Vesting Start Date: July 26, 2016
Vesting Schedule: One-third (1/3) of the RSUs shall vest on each of the first, second and third anniversaries of the Vesting Start Date, subject to your continued service with the Company on the applicable vesting date.
By your signature below, you agree to all of the terms and conditions described in the Agreement and in the Plan, a copy of which will be provided on request. You agree that your Employment Agreement will control in the event any provision of this Agreement should appear to be inconsistent with your Employment Agreement. You further acknowledge that you have carefully reviewed the Plan, and agree that the Plan will control in the event any provision of this Agreement should appear to be inconsistent with the Plan.
Grantee: |
/s/ John A. Sedor |
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Date: |
November 3, 2016 |
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John A. Sedor |
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Company: |
/s/ Tasos Konidaris |
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Date: |
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Tasos Konidaris Director
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Attachment
This is not a share certificate or a negotiable instrument
.
AMENDED AND RESTATED
RESTRICTED SHARE UNIT AGREEMENT
PERNIX THERAPEUTICS HOLDINGS, INC.
2015 OMNIBUS INCENTIVE PLAN
Restricted Share Units |
This Agreement evidences an award of RSUs in the number set forth on the Cover Sheet of this Agreement and subject to the vesting and other terms and conditions set forth in this Agreement and in the Plan. |
Vesting |
The RSUs will vest in accordance with the Vesting Schedule set forth on the Cover Sheet, subject to your continued service through each vesting date. You may not vest in more than the number of shares of Common Stock covered by your RSUs, as set forth on the Cover Sheet of this Agreement. Unless the termination of your service triggers accelerated vesting or other treatment of your RSUs pursuant to the terms of this Agreement or your Employment Agreement, you will immediately and automatically forfeit to the Company all of your unvested RSUs in the event your service terminates for any reason not addressed in this Agreement or your Employment Agreement.
Notwithstanding the Vesting Schedule set forth on the Cover Sheet, if your service is terminated by the Company without Cause (other than as a result of your death or Disability), on account of non-renewal of your Employment Agreement by the Company or if you resign with Good Reason (as each such term is defined below), your RSUs will become 100% vested upon such termination of service. For all purposes of this Agreement, the terms "Cause", "Good Reason" and "Disability" shall have the meanings set forth in your Employment Agreement.
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Change of Control |
In the event of a Change of Control, your RSUs will be treated in the manner so provided in Section 10 of the Plan. |
Leaves of Absence |
For purposes of the RSUs, your service does not terminate when you go on a bona fide employee leave of absence that the Company approves in writing if the terms of the leave provided for continued service crediting or when continued service crediting is required by applicable law or contract. Your service terminates in any event when the approved leave ends unless you immediately return to active employment. The Company, in its sole discretion, determines which leave counts for this purpose and when your service terminates for all purposes under the Plan. |
Dividend Equivalents |
Should any dividend be declared and paid with respect to the shares of Common Stock during the period between the Grant Date and the date on which the RSUs are delivered as shares of Common Stock, the Company shall credit to a dividend equivalent bookkeeping account the value of such
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Retention Rights |
This Agreement and the RSUs evidenced by this Agreement do not give you the right to be retained by the Company or any affiliate in any capacity. Unless otherwise specified in any employment or other written agreement between you and the Company or any affiliate, including your Employment Agreement, the Company and any affiliate reserve the right to terminate your service at any time and for any reason. |
Shareholder Rights |
You, or your estate or heirs, have no rights as a shareholder of the Company until the shares of Common Stock have been issued and either a certificate evidencing the shares of Common Stock has been issued or an appropriate entry has been made on the Company's books. No adjustments are made for dividends, distributions, or other rights if the applicable record date occurs before your certificate is issued or the appropriate book entry is made, except as described in the Plan. The RSUs will be subject to the terms of any applicable agreement of merger, liquidation, or reorganization in the event that the Company is subject to such corporate activity. |
Applicable Law |
The validity and construction of this Agreement will be governed by, and construed and interpreted in accordance with, the laws of the State of Maryland, other than any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of this Agreement to the substantive laws of any other jurisdiction. |
The Plan |
The text of the Plan is incorporated into this Agreement. Certain capitalized terms used in this Agreement are defined in the Plan, and have the meaning set forth in the Plan, unless otherwise referenced as being defined in the Employment Agreement . This Agreement and the Plan constitute the entire understanding between you and the Company regarding the RSUs. Any prior agreements, commitments, or negotiations concerning the RSUs are superseded; except that the Employment Agreement and any other written confidentiality, non-competition, non-solicitation, and/or severance agreement, or any other written agreement between you and the Company or any affiliate, as applicable, will supersede this Agreement with respect to its subject matter. |
Data Privacy |
To administer the Plan, the Company may process personal data about you. This data includes, without limitation, information provided in this Agreement and any changes to such information, other appropriate personal and financial data about you, including your contact information, payroll information and any other information that the Company deems appropriate to facilitate the administration of the Plan.
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By accepting the RSUs, you give explicit consent to the Company to process any such personal data. |
Code Section 409A |
The grant of your RSUs under this Agreement is intended to comply with Section 409A of the Code (" Section 409A ") to the extent subject thereto, and, accordingly, to the maximum extent permitted, this Agreement will be interpreted and administered to be in compliance with Section 409A. Notwithstanding anything to the contrary in this Agreement, the Company is not making any representation hereunder as to the particular tax treatment of the RSUs. To the extent that the RSUs constitute "deferred compensation" under Section 409A, a termination of service occurs only upon an event that would be a "separation from service" within the meaning of Section 409A. If, at the time of your separation from service, (i) you are a "specified employee" within the meaning of Section 409A, and (ii) the Company makes a good faith determination that an amount payable on account of your separation from service constitutes deferred compensation (within the meaning of Section 409A), the payment of which is required to be delayed pursuant to the six (6)-month delay rule set forth in Section 409A to avoid taxes or penalties under Section 409A (the " Delay Period "), then the Company will not pay such amount on the otherwise scheduled payment date but will instead pay it in a lump sum on the first business day after the Delay Period (or upon your death, if earlier), without interest. Each installment of RSUs that vest under this Agreement (if there is more than one installment) will be considered one of a series of separate payments for purposes of Section 409A. |
Disclaimer of Rights |
The grant of RSUs under this Agreement will in no way be interpreted to require the Company to transfer any amounts to a third-party trustee or otherwise hold any amounts in trust or escrow for payment to you. You will have no rights under this Agreement or the Plan other than those of a general unsecured creditor of the Company. RSUs represent unfunded and unsecured obligations of the Company, subject to the terms and conditions of the Plan and this Agreement. |
Notice Delivery |
By accepting the RSUs, you agree that notices may be given to you in writing either at your home or mailing address as shown in the records of the Company or any affiliate or by electronic transmission (including e-mail or reference to a website or other URL) sent to you through the normal process employed by the Company or any affiliate, as applicable, for communicating electronically with its employees. |
By signing this Agreement, you agree to all of the terms and conditions described above and in the Plan.
Exhibit 10.6
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement"), made as of November 3, 2016, between PERNIX THERAPEUTICS HOLDINGS, INC., a Maryland corporation (the "Company") and Dr. Graham G. Miao ("Executive").
WITNESSETH :
WHEREAS, Executive currently serves as the President and Chief Financial Officer of the Company; and
WHEREAS, the Company and Executive desire to enter into this Agreement to set out the terms and conditions for the continued employment relationship of Executive with the Company.
NOW, THEREFORE, intending to be legally bound hereby, the Company hereby agrees to continue to employ Executive, and Executive hereby agrees to continue to be employed by the Company, upon the following terms and conditions:
1. Term .
Subject to the terms and provisions of this Agreement, this Agreement shall commence as of the date hereof (the "Effective Date") and shall continue until the third anniversary of the Effective Date; provided, however, on such third anniversary of the Effective Date and on each annual anniversary of the Effective Date thereafter (such third anniversary date and each annual anniversary thereafter, being a "Renewal Date"), this Agreement shall be deemed to be automatically extended, upon the same terms and conditions, for successive periods of one (1) year each, unless the Company or Executive gives written notice to the other party of its intention not to renew this Agreement not less than three (3) months prior to the applicable Renewal Date. The period during which this Agreement is in effect and Executive is employed by the Company hereunder is hereinafter referred to as the "Term."
2. Title, Duties and Responsibilities .
3. Compensation and Benefits .
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amount of the bonus payable to Executive for any calendar year during the Term shall be determined by the Board or the Compensation Committee, in its sole discretion, and may be less than or greater than the Target Bonus; provided, that, in no event shall the bonus payable to Executive for any calendar year during the Term be greater than 200% of the Target Bonus. Except as otherwise provided in this Agreement, Executive must remain employed with the Company through the end of a calendar year in order to be eligible to receive an annual cash bonus for such calendar year. Any annual cash bonus earned by Executive shall be payable as soon as practicable after the end of the applicable calendar year but not later than March 15 after the end of such calendar year.
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4. Termination of Employment .
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giving rise to Good Reason and the Company shall have thirty (30) days to cure the circumstances. In order to terminate his employment, if at all, for Good Reason, Executive must terminate employment within sixty (60) days following the end of the cure period if the circumstances giving rise to Good Reason have not been cured.
5. Compensation Upon Termination of Employment .
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For the avoidance of doubt, the amounts paid under this Section 5(b) are in lieu of payment to Executive under any other severance agreement, plan, policy, practice or program of the Company.
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catch-up payment to cover the period between Executive's termination date and the date of such first payment and the remaining amounts shall be paid over the remainder of such eighteen (18) month period. In addition, within thirty (30) days following the eighteen (18) month anniversary of the date of Executive's termination of employment, so long as Executive is not then eligible to receive coverage from another employer, the Company shall pay to Executive a lump sum cash amount equal to the product of (x) six and (y) an amount equal to 150% of the monthly COBRA premium that would be charged to a similarly situated former senior executive of the Company.
For the avoidance of doubt, the amounts paid under this Section 5(c) are in lieu of payment to Executive under any other severance agreement, plan, policy, practice or program of the Company. Notwithstanding anything in Section 5(c)(i) to the contrary, if the Change in Control does not constitute a change in ownership or effective control of the Company, or in the ownership of a substantial portion of the assets of the Company, within the meaning of section 409A(a)(2)(A)(v) of the Code and its corresponding regulations (a "409A Change in Control"), in the event that Executive is entitled to the amounts set forth above in Section 5(c)(i) as a result of a termination of Executive's employment on or within the twenty-four (24) month period following the date of the Change in Control, and any portion of the severance benefit payable to Executive pursuant to Section 5(b)(i) is deemed to constitute deferred compensation subject to the requirements of section 409A of the Code at the time of Executive's termination, such portion that constitutes deferred compensation shall reduce the amount that is paid in a lump sum as provided above and such deferred compensation portion shall instead be paid in substantially equal installments over the installment period as described in Section 5(b)(i). In the event that Executive is entitled to the amounts set forth in Section 5(c)(i) as a result of Executive's termination of employment prior to a Change in Control and a Change in Control occurs within six (6) months following Executive's date of termination, Executive shall receive the amounts set forth in this Section 5(c), less any severance compensation paid to Executive in connection with Section 5(b), paid in the same form and time as provided in Section 5(c), except that the amounts payable pursuant to Section 5(c)(i) shall be paid in a lump sum, within ten (10) days after the date of the Change in Control; provided, that if the Change in Control does not constitute a 409A Change in Control and any portion of the severance benefit payable to Executive under Section 5(b)(i) is deemed to constitute deferred compensation subject to the requirements of section 409A of the Code such deferred compensation portion shall not be paid in a lump sum, but instead such deferred compensation portion shall continue to be paid in substantially equal installments over the remainder of the installment period described in Section 5(b)(i).
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6. Section 280G .
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7. Confidential Information .
Executive recognizes and acknowledges that: (i) in the course of Executive's employment by the Company it will be necessary for Executive to acquire information which could include, in whole or in part, information concerning the Company's sales, sales volume, sales methods, sales proposals, customers and prospective customers, identity of customers and prospective customers, identity of key purchasing personnel in the employ of customers and prospective customers, amount or kind of customers' purchases from the Company, the Company's sources of supply, computer programs, system documentation, special hardware, product hardware, related software development, manuals, formulae, processes, methods, machines, compositions, ideas, improvements, inventions or other confidential or proprietary information belonging to the Company or relating to the Company's affairs (collectively referred to herein as the "Confidential Information"); (ii) the Confidential Information is the property of the Company; (iii) the use, misappropriation or disclosure of the Confidential Information would constitute a breach of trust and could cause irreparable injury to the Company; and (iv) it is essential to the protection of the Company's good will and to the maintenance of the Company's competitive position that the Confidential Information be kept secret and that Executive not disclose the Confidential Information to others or use the Confidential Information to Executive's own advantage or the advantage of others.
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8. Confidentiality, Non-Compete, Non-Solicit and Related Covenants .
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offering of products or services that are competitive to the Competitive Business or (ii) providing investment banking services to any Competitive Business in other than an employee capacity. In the event that the provisions of this Section 8(c) should ever be adjudicated to exceed the time, geographic, services, scope or other limitations permitted by applicable law in any pertinent jurisdictions, then such provisions shall be deemed reformed in any such jurisdiction to the maximum time, geographic, services, scope or other limitations permitted by applicable law.
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9. Injunctive and other relief .
10. Clawback/Recoupment . Notwithstanding any other provision in this Agreement to the contrary, to the extent the Company adopts a "clawback" or recoupment policy (i) that is applicable to all senior executives of the Company or (ii) in order to comply with applicable law, rule, or regulation, Executive acknowledges that the Company may require that any incentive compensation payable to Executive pursuant to this Agreement or any other agreement or arrangement, in each such case, the payment of which is based on the level of achievement of financial performance goals, may be subject to such policy; provided that any mandatory repayment by Executive to the Company under such policy will be limited to the excess of the compensation that is paid to Executive as a result of the accounting restatement, unless otherwise required by applicable law, rule or regulation.
11. Attorneys' Fees . In the event that any suit, action or arbitration proceeding is instituted under or in relation to this Agreement, the prevailing party in such dispute shall be entitled to recover from the losing party all fees, costs and expenses of enforcing or defending any right of such prevailing party under or with respect to this Agreement, including without limitation, such reasonable fees and expenses of attorneys and accountants (which shall include, without limitation, all fees, costs and expenses of appeals). All costs of arbitration, including the fees and expenses of the arbitrator, shall be borne by such losing party.
12. Arbitration . Except as excluded below, any legal or equitable claim or controversy arising out of or relating to this Agreement, including but not limited to Executive's employment by the Company or the termination of that employment (whether by
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Executive or the Company), shall be settled exclusively by binding arbitration in the Borough of Manhattan, City of New York, State of New York (or the regional office of AAA located in the Borough of Manhattan, City of New York, State of New York) before a single arbitrator, conducted in accordance with the Federal Arbitration Act and the National Rules for the Resolution of Employment Disputes of the American Arbitration Association ("AAA") which are then in effect (the "Rules"). A party seeking arbitration must: (i) deliver a written demand for arbitration and the applicable filing fee to the regional office of AAA located in the Borough of Manhattan, City of New York, State of New York and (ii) on the same day, send a copy of that demand to the other party. In accordance with the Rules, the demand must describe all claims the party seeks to arbitrate, and must be received by the AAA and the other party within the applicable statute of limitations governing that claim, or the party seeking arbitration will be barred from pursuing that claim. All aspects of the arbitration process, including the demand for arbitration, the hearing, and the record of the proceeding, shall be confidential and shall not be open to or disclosed to any third party or the public. Notwithstanding the foregoing, this agreement to arbitrate shall not apply to or cover (x) any claim by Executive for workers' compensation benefits or unemployment compensation benefits, (y) claims by Executive relating to employee benefits under any of the Company's insurance, disability, or retirement plans to the extent they must be raised with the administrator of the relevant plan pursuant to the terms of that plan and (z) any claim by the Company for injunctive or equitable relief, including without limitation claims that Executive has violated any part of Section 8 of this Agreement, or involving intellectual property, unfair competition, or trade secrets.
13. Governing Law .
This Agreement shall be construed and enforced under and be governed in all respects by the laws of the State of New Jersey without regard to the conflict of laws principles thereof. For the purposes of any claim or cause of action in any legal proceeding initiated over any dispute arising out of or relating to this Agreement or any of the transactions contemplated hereby that is not subject to arbitration pursuant to Section 12 above, such claim or cause of action shall be initiated in any federal or state court located within the County of Morris, State of New Jersey, and the parties further agree that venue for all such matters shall lie exclusively in those courts. The parties hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection that they may now or hereafter have, including, without limitation, any claim of forum non conveniens, to venue and any objection to personal jurisdiction or venue in such jurisdiction in the courts located in the County of Morris, State of New Jersey. The parties agree that a judgment in any such dispute may be enforced in other jurisdictions by proceedings on the judgment or in any other manner provided by law.
14. Amendments, waivers, etc.
No amendment of any provision of this Agreement, and no postponement or waiver of any such provision or of any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, shall be valid unless such amendment, postponement or waiver is in writing and signed by or on behalf of the Company and Executive. No such amendment, postponement or waiver shall be deemed to extend to any prior or subsequent
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matter, whether or not similar to the subject matter of such amendment, postponement or waiver. No failure or delay on the part of the Company or Executive in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
15. Assignment .
The rights and duties of the Company under this Agreement may be transferred to, and shall be binding upon, any person or company which acquires or is a successor to the Company, its business or a significant portion of the assets of the Company by merger, purchase or otherwise, and the Company shall require any such acquirer or successor by agreement in form and substance reasonably satisfactory to Executive, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Company, as the case may be, would be required to perform if no such acquisition or succession had taken place. Regardless of whether such agreement is executed, this Agreement shall be binding upon any acquirer or successor in accordance with the operation of law and such acquirer or successor shall be deemed the "Company", as the case may be, for purposes of this Agreement. Except as otherwise provided in this Section 15, neither the Company nor Executive may transfer any of their respective rights and duties hereunder except with the written consent of the other party hereto.
16. Notices.
Notices and all other communications provided for in this Agreement shall be in writing and shall be delivered personally or sent by registered or certified mail, return receipt requested, or by overnight carrier to the parties at the addresses set forth below (or such other addresses as specified by the parties by like notice):
If to the Company:
Pernix Therapeutics Holdings, Inc.
10 North Park Place, Suite 201
Morristown, NJ 07960
Attn: Vice President, Human Resources
If to Executive, to such address as shall most currently appear on the records of the Company.
17. Severability.
The invalidity or unenforceability of any one or more provisions of this Agreement shall not affect the validity or enforceability of the other provisions of this Agreement, which shall remain in full force and effect.
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18. Interpretation, etc.
The Company and Executive have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Company and Executive and no presumption or burden of proof shall arise favoring or disfavoring the Company or Executive because of the authorship of any of the provisions of this Agreement. The word "including" shall mean including without limitation. The rights and remedies expressly specified in this Agreement are cumulative and are not exclusive of any rights or remedies which either party would otherwise have. The Section headings hereof are for convenience only and shall not affect the meaning or interpretation of this Agreement.
19 Integration; counterparts .
This Agreement constitutes the entire agreement among the parties and supersedes any prior understandings, agreements or representations by or among the parties, written or oral, to the extent they relate to the subject matter hereof, including the consulting agreement between Executive and the Company, dated May 9, 2016. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. It shall not be necessary in making proof of this Agreement to produce or account for more than one such counterpart.
20. Indemnification and Insurance .
The Company shall defend and hold Executive harmless to the fullest extent permitted by applicable law in connection with any claim, action, suit, investigation or proceeding arising out of or relating to performance by Executive of services for, or action of Executive as a director, officer, employee or consultant of the Company, or of any other person or enterprise at the request of the Company. Expenses incurred by Executive in defending a claim, action, suit or investigation or criminal proceeding shall be paid by the Company as such expenses are incurred. The foregoing shall be in addition to any indemnification rights Executive may have by law, contract, charter, by-law or otherwise. Executive shall be covered under any director and officer liability insurance purchased or maintained by the Company on a basis, and at levels, no less favorable than the Company makes available to peer executives and such coverage shall remain in effect covering Executive for the duration of the period while Executive is employed by, or providing services to, the Company, and for the six (6) year period after termination of such employment or service. After the occurrence of a Change in Control, the Company shall maintain in effect and shall provide to Executive director and officer liability insurance coverage that is no less favorable to Executive than that coverage in effect immediately prior to such Change in Control. This Section is intended to provide for the indemnification of, and/or purchase of insurance policies providing for payments of, expenses and damages incurred with respect to bona fide claims against Executive, as a service provider, or the Company, as the service recipient, in accordance with Treas. Reg. Section 1.409A-1(b)(10), pursuant to which this section shall not provide for the deferral of compensation. This Section shall be construed consistently, and limited in accordance with, the provisions of such regulation.
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21. Survivorship .
The respective rights and obligations of the parties under this Agreement, including, without limitation the Company's obligations to pay and provide the severance benefits described in Section 5(b) and 5(c) of this Agreement and the Company's indemnification and insurance obligations under Section 20 of this Agreement, shall survive any termination of Executive's employment to the extent necessary to carry out the intentions of the parties under this Agreement.
22. Withholding .
The Company may withhold from any benefit payment or any other payment or amount under this Agreement all federal, state, city or other taxes as shall be required pursuant to any law or governmental regulation or ruling.
23. Section 409A .
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calendar, but only (i) with respect to the portion of such amounts that are payable within such sixty (60) day period that constitute deferred compensation subject to Section 409A and (ii) to the extent no additional delay is required pursuant to Section 23(c) below.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
PERNIX THERAPEUTICS HOLDINGS, INC.
By:
/s/ Tasos Konidaris
Tasos Konidaris
Director
/s/ Dr. Graham G. Miao
Dr. Graham G. Miao
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EXHIBIT A
Release
You, for yourself, your spouse and your agents, successors, heirs, executors, administrators and assigns, hereby irrevocably and unconditionally forever release and discharge Pernix Therapeutics Holdings, Inc. (the " Corporation "), its parents, divisions, subsidiaries and affiliates and its and their current and former owners, directors, officers, stockholders, insurers, benefit plans, representatives, agents and employees, and each of their predecessors, successors, and assigns (collectively, the " Releasees "), from any and all actual or potential claims or liabilities of any kind or nature, including, but not limited to, any claims arising out of or related to your employment and separation from employment with the Corporation and any services that you provided to the Corporation; any claims that you may have for any benefits under the Employee Retirement Income Security Act of 1974 ("ERISA") (except for vested ERISA benefits); any claims that you may have for discrimination, harassment or retaliation of any kind or based upon any legally protected classification or activity; any claims that you may have under Title VII of the Civil Rights Acts of 1964, the Civil Rights Act of 1866 and 1964, as amended, 42 U.S.C. § 1981, the Age Discrimination in Employment Act, the Older Workers Benefit Protection Act, the Americans with Disabilities Act, 42 U.S.C. § 1981, 42 U.S.C. § 1983, the Family Medical Leave Act and any similar state law, the Fair Credit Reporting Act and any similar state law, the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. , the Worker Adjustment and Retraining Notification Act, 29 U.S.C. § 2101, et seq. , the Equal Pay Act and any similar state law, the New Jersey Law Against Discrimination, the New Jersey Conscientious Employee Protection Act, the New Jersey Family Leave Act, the New Jersey Wage Payment Law, the New Jersey Wage and Hour Law, the New Jersey Equal Pay Act, and any retaliation claims that you may have under the New Jersey Workers' Compensation Law, as well as any amendments to any such laws; any claims that you may have for any violation of any federal or state constitutions or executive orders; any claims for wrongful or constructive discharge, violation of public policy, breach of contract or promise (oral, written, express or implied), personal injury not covered by workers' compensation benefits, misrepresentation, negligence, fraud, estoppel, defamation, infliction of emotional distress, contribution and any claims that you may have under any other federal, state or local law, including those not specifically listed in this Release, that you, your heirs, executors, administrators, successors, and assigns now have, ever had or may hereafter have, whether known or unknown, suspected or unsuspected, up to and including the date of your execution of this Release.
For the purpose of implementing a full and complete release and discharge of the Releasees as set forth above, you acknowledge that this Release is intended to include in its effect, without limitation, all claims known or unknown that you have or may have against the Releasees which arise out of or relate to your employment, including but not limited to performance or termination of employment with the Corporation, except for, and notwithstanding anything in this Release to the contrary, claims which cannot be released solely by private agreement. This Release also excludes (i) any claims relating to any right you may have to payments pursuant to Section 5(b) or Section 5(c), as applicable, of the
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Employment Agreement, entered into as of November 3, 2016, by and between the Corporation and you (the " Employment Agreement "), (ii) any Accrued Obligations (as defined in the Employment Agreement), (iii) any entitlements to vested equity rights, (iv) any claim for workers' compensation benefits and (v) any rights you may have to indemnification or directors' and officers' liability insurance under the Corporation's bylaws or certificate of incorporation, Section 20 of the Employment Agreement, and any indemnification agreement to which you are a party or beneficiary or applicable law, as a result of having served as an officer, director or employee of the Corporation or any of its affiliates. You further acknowledge and agree that you have received all leave, compensation and reinstatement benefits to which you were entitled through the date of your execution of this Release (other than the Accrued Obligations), and that you were not subjected to any improper treatment, conduct or actions as a result of a request for leave, compensation or reinstatement.
You affirm, by signing this Release, that you have not suffered any unreported injury or illness arising from your employment, and that you have not filed with any federal, state or local court any actions against Releasees relating to or arising out of your employment with or separation from the Corporation.
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 the U.S. Equal Employment Opportunity Commission, the Department of Labor, the National Labor Relations Board, the Department of Justice, the Securities and Exchange Commission, the Congress, and any agency Inspector General (collectively, the " Regulators "), or from making other disclosures that are protected under the whistleblower provisions of state or federal law or regulation. However, to the maximum extent permitted by law, you are waiving your right to receive any individual monetary relief from the Company or any others covered by the Release resulting from such claims or conduct, regardless of whether you or another party has filed them, 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. 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 law.
Pursuant to 18 USC § 1833(b), you understand that an individual may not be held liable under any criminal or civil federal or state trade secret law for disclosure of a trade secret: (i) made in confidence to a government official, either directly or indirectly, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law or (ii) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Additionally, you understand that an individual suing an employer for retaliation based on the reporting of a suspected violation of law may disclose a trade secret to his or her attorney and use the trade secret information in the court proceeding, so long as any document containing the trade secret is filed under seal and the individual does not disclose the trade secret except pursuant to court order. Nothing in this Release is intended to conflict
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with 18 USC § 1833(b) or create liability for disclosures of trade secrets that are expressly allowed by 18 USC § 1833(b).
You acknowledge:
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PLEASE READ CAREFULLY. THIS RELEASE INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
ACKNOWLEDGED AND AGREED
_______________________________________________________________________________
Dr. Graham G. Miao Date
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EXHIBIT B
Stock Option Award Agreement under 2009 Plan
AMENDED AND RESTATED
PERNIX THERAPEUTICS HOLDINGS, INC.
2009 STOCK INCENTIVE PLAN
NONQUALIFIED STOCK OPTION AGREEMENT
COVER SHEET
Grantee Name: Graham G. Miao, Ph.D.
Grant Date: November 3, 2016
Number of shares of Common Stock: 95,000
Exercise Price per share of Common Stock: $3.15
Vesting Start Date: July 26, 2016
Vesting Schedule: One-third (1/3) of the Option shall vest on each of the first, second and third anniversaries of the Vesting Start Date, subject to your continued service with the Company on the applicable vesting date.
Expiration Date: November 2, 2026
By your signature below, you agree to all of the terms and conditions described in the Agreement and in the Plan, a copy of which will be provided on request. You agree that your Employment Agreement will control in the event any provision of this Agreement should appear to be inconsistent with your Employment Agreement. You further acknowledge that you have carefully reviewed the Plan, and agree that the Plan will control in the event any provision of this Agreement should appear to be inconsistent with the Plan.
Grantee: |
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November 3, 2016 |
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Graham G. Miao, Ph.D. |
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Company: |
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Tasos Konidaris Director
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Attachment
This is not a share certificate or a negotiable instrument
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AMENDED AND RESTATED
2009 STOCK INCENTIVE PLAN
NONQUALIFIED STOCK OPTION AGREEMENT
PERNIX THERAPEUTICS HOLDINGS, INC.
Nonqualified Stock Option |
This Agreement evidences the grant of an Option exercisable for the number of shares of Common Stock set forth on the Cover Sheet of this Agreement and subject to the vesting and other terms and conditions set forth in this Agreement and in the Plan. The Option is not intended to be an incentive stock option under Section 422 of the Code and will be interpreted accordingly. |
Vesting |
The Option will vest in accordance with the Vesting Schedule set forth on the Cover Sheet, subject to your continued service through each vesting date. You may not vest in more than the number of Options set forth on the Cover Sheet of this Agreement. Unless the termination of your service triggers accelerated vesting or other treatment of your Options pursuant to the terms of this Agreement or your Employment Agreement, you will immediately and automatically forfeit to the Company all of your unvested Options in the event your service terminates for any reason not addressed in this Agreement or your Employment Agreement.
Notwithstanding the Vesting Schedule set forth on the Cover Sheet, if your service is terminated by the Company without Cause (other than as a result of your death or Disability), on account of non-renewal of your Employment Agreement by the Company or if you resign with Good Reason (as each such term is defined below), your Option will become 100% vested upon such termination of service. For all purposes of this Agreement, the terms "Cause", "Good Reason" and "Disability" shall have the meanings set forth in your Employment Agreement.
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Change of Control |
In the event of a Change of Control, your Option will be treated in the manner so provided in Section 12.10 of the Plan. |
Expiration of Option |
In all events, the Option will expire on the Expiration Date set forth on the Cover Sheet of this Agreement. The Option will expire earlier if your service terminates, as described below. Termination Other than for Cause or due to Death or Disability . If your service is terminated by the Company for any reason other than for Cause, death, or Disability, on account of non-renewal of your Employment Agreement by the Company or due to your resignation with Good Reason, you may exercise the vested portion of the Option, but only within the time period ending on the six (6) month anniversary of the termination of your service. Resignation without Good Reason . If you resign without Good Reason, you may exercise the vested portion of the Option, but only within the time period ending on the three (3) month anniversary of the termination of your service.
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Termination due to Death or Disability . If your service terminates because of your death or Disability, if you die during the six (6)-month period after the termination of your service by the Company for any reason (other than for Cause, death or Disability), on account of non-renewal of your Employment Agreement by the Company or due to your resignation with Good Reason, or if you die during the three (3)-month period after your resignation without Good Reason, you may exercise the vested portion of your Option, but only within the time period ending on the date that is twelve (12) months after the termination of your service. Termination for Cause . If your service is terminated for Cause, the Option (including vested and unvested portions) will immediately terminate and no longer be exercisable. |
Leaves of Absence |
For purposes of the Option, your service does not terminate when you go on a bona fide employee leave of absence that the Company approves in writing if the terms of the leave provided for continued service crediting or when continued service crediting is required by applicable law or contract. Your service terminates in any event when the approved leave ends unless you immediately return to active employment. The Company, in its sole discretion, determines which leave counts for this purpose and when your service terminates for all purposes under the Plan. |
Notice of Exercise |
The Option may be exercised, in whole or in part, to purchase a whole number of vested shares of Common Stock of not less than 100 shares, unless the number of vested shares of Common Stock purchased is the total number available for purchase under the Option, by following the procedures described in the Plan and in this Agreement. When you wish to exercise the Option, you must exercise in the manner required or permitted by the Company. If someone other than you exercises the Option after your death, then that person must submit documentation reasonably acceptable to the Company verifying that the person has the legal authority to exercise the Option. |
Form of Payment |
When you exercise the Option, you must include payment of the Exercise Price indicated on the Cover Sheet of this Agreement for the shares of Common Stock that you are purchasing. Payment may be made in one (or a combination) of the following forms:
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5
Data Privacy |
To administer the Plan, the Company may process personal data about you. This data includes, without limitation, information provided in this Agreement and any changes to such information, other appropriate personal and financial data about you, including your contact information, payroll information and any other information that the Company deems appropriate to facilitate the administration of the Plan. By accepting the Option, you give explicit consent to the Company to process any such personal data. |
Notice Delivery |
By accepting the Option, you agree that notices may be given to you in writing either at your home or mailing address as shown in the records of the Company or any affiliate or by electronic transmission (including e-mail or reference to a website or other URL) sent to you through the normal process employed by the Company or any affiliate, as applicable, for communicating electronically with its employees. |
By signing this Agreement, you agree to all of the terms and conditions described above and in the Plan.
6
EXHIBIT C
Restricted Share Unit Award Agreement under 2015 Plan
AMENDED AND RESTATED
PERNIX THERAPEUTICS HOLDINGS, INC.
2015 OMNIBUS INCENTIVE PLAN
RESTRICTED SHARE UNIT AGREEMENT
COVER SHEET
Pernix Therapeutics Holdings, Inc., a Maryland corporation (the " Company "), hereby grants restricted share units relating to shares of its common stock, par value $0.01 per share (the " Common Stock "), to the Grantee named below (the " RSU "). Additional terms and conditions of the grant are set forth on this Cover Sheet and in the attached Restricted Share Unit Agreement (together, the " Agreement "), in the Company's Amended and Restated 2015 Omnibus Incentive Plan (as further amended from time to time, the " Plan ") and in your Employment Agreement with the Company, dated as of November 3, 2016 (the " Employment Agreement ").
Grantee Name: Graham G. Miao, Ph.D.
Grant Date: November 3, 2016
Number of Restricted Share Units: 65,500
Vesting Start Date: July 26, 2016
Vesting Schedule: One-third (1/3) of the RSUs shall vest on each of the first, second and third anniversaries of the Vesting Start Date, subject to your continued service with the Company on the applicable vesting date.
By your signature below, you agree to all of the terms and conditions described in the Agreement and in the Plan, a copy of which will be provided on request. You agree that your Employment Agreement will control in the event any provision of this Agreement should appear to be inconsistent with your Employment Agreement. You further acknowledge that you have carefully reviewed the Plan, and agree that the Plan will control in the event any provision of this Agreement should appear to be inconsistent with the Plan.
Grantee: |
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Date: |
November 3, 2016 |
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Graham G. Miao, Ph.D. |
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Company: |
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Date: |
November 3, 2016 |
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Tasos Konidaris Director
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Attachment
This is not a share certificate or a negotiable instrument
.
AMENDED AND RESTATED
RESTRICTED SHARE UNIT AGREEMENT
Restricted Share Units
This Agreement evidences an award of RSUs in the number set forth on the Cover Sheet of this Agreement and subject to the vesting and other terms and
conditions set forth in this Agreement and in the Plan.
Vesting
The RSUs will vest in accordance with the Vesting Schedule set forth on the Cover Sheet, subject to your continued service through each
vesting date. You may not vest in more than the number of shares of Common Stock covered by your RSUs, as set forth on the Cover Sheet of this Agreement.
Unless the termination of your service triggers accelerated vesting or other treatment of your RSUs pursuant to the terms of this Agreement or your
Employment Agreement, you will immediately and automatically forfeit to the Company all of your unvested RSUs in the event your service terminates for any reason not addressed
in this Agreement or your Employment Agreement.
Notwithstanding the Vesting Schedule set forth on the Cover Sheet, if your service is terminated by the Company without Cause (other than as a result of
your death or Disability), on account of non-renewal of your Employment Agreement by the Company or if you resign with Good Reason (as each such term is defined below), your
RSUs will become 100% vested upon such termination of service. For all purposes of this Agreement, the terms "Cause", "Good Reason" and
"Disability" shall have the meanings set forth in your Employment Agreement.
Change of Control
In the event of a Change of Control, your RSUs will be treated in the manner so provided in Section 10 of the Plan.
Leaves of Absence
For purposes of the RSUs, your service does not terminate when you go on a
bona fide
employee leave of absence that the
Company approves in writing if the terms of the leave provided for continued service crediting or when continued service crediting is required by applicable law or contract. Your
service terminates in any event when the approved leave ends unless you immediately return to active employment. The Company, in its sole discretion, determines which leave
counts for this purpose and when your service terminates for all purposes under the Plan.
Dividend Equivalents
Should any dividend be declared and paid with respect to the shares of Common Stock during the period between the Grant Date and the
date on which the RSUs are delivered as shares of Common Stock, the Company shall credit to a dividend equivalent bookkeeping account the value of such
PERNIX THERAPEUTICS HOLDINGS, INC.
2015 OMNIBUS INCENTIVE PLAN
Retention Rights |
This Agreement and the RSUs evidenced by this Agreement do not give you the right to be retained by the Company or any affiliate in any capacity. Unless otherwise specified in any employment or other written agreement between you and the Company or any affiliate, including your Employment Agreement, the Company and any affiliate reserve the right to terminate your service at any time and for any reason. |
Shareholder Rights |
You, or your estate or heirs, have no rights as a shareholder of the Company until the shares of Common Stock have been issued and either a certificate evidencing the shares of Common Stock has been issued or an appropriate entry has been made on the Company's books. No adjustments are made for dividends, distributions, or other rights if the applicable record date occurs before your certificate is issued or the appropriate book entry is made, except as described in the Plan. The RSUs will be subject to the terms of any applicable agreement of merger, liquidation, or reorganization in the event that the Company is subject to such corporate activity. |
Applicable Law |
The validity and construction of this Agreement will be governed by, and construed and interpreted in accordance with, the laws of the State of Maryland, other than any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of this Agreement to the substantive laws of any other jurisdiction. |
The Plan |
The text of the Plan is incorporated into this Agreement. Certain capitalized terms used in this Agreement are defined in the Plan, and have the meaning set forth in the Plan, unless otherwise referenced as being defined in the Employment Agreement . This Agreement and the Plan constitute the entire understanding between you and the Company regarding the RSUs. Any prior agreements, commitments, or negotiations concerning the RSUs are superseded; except that the Employment Agreement and any other written confidentiality, non-competition, non-solicitation, and/or severance agreement, or any other written agreement between you and the Company or any affiliate, as applicable, will supersede this Agreement with respect to its subject matter. |
Data Privacy |
To administer the Plan, the Company may process personal data about you. This data includes, without limitation, information provided in this Agreement and any changes to such information, other appropriate personal and financial data about you, including your contact information, payroll information and any other information that the Company deems appropriate to facilitate the administration of the Plan. By accepting the RSUs, you give explicit consent to the Company to process any such personal data. |
Code Section 409A |
The grant of your RSUs under this Agreement is intended to comply with Section 409A of the Code (" Section 409A ") to the extent subject thereto, and, accordingly, to the maximum extent permitted, this Agreement will be interpreted and administered to be in compliance with Section 409A. Notwithstanding anything to the contrary in this Agreement, the Company is not making any representation hereunder as to the particular tax treatment of the RSUs. To the extent that the RSUs constitute "deferred compensation" under Section 409A, a termination of service occurs only upon an event that would be a "separation from service" within the meaning of Section 409A. If, at the time of your separation from service, (i) you are a "specified employee" within the meaning of Section 409A, and (ii) the Company makes a good faith determination that an amount payable on account of your separation from service constitutes deferred compensation (within the meaning of Section 409A), the payment of which is required to be delayed pursuant to the six (6)-month delay rule set forth in Section 409A to avoid taxes or penalties under Section 409A (the " Delay Period "), then the Company will not pay such amount on the otherwise scheduled payment date but will instead pay it in a lump sum on the first business day after the Delay Period (or upon your death, if earlier), without interest. Each installment of RSUs that vest under this Agreement (if there is more than one installment) will be considered one of a series of separate payments for purposes of Section 409A. |
Disclaimer of Rights |
The grant of RSUs under this Agreement will in no way be interpreted to require the Company to transfer any amounts to a third-party trustee or otherwise hold any amounts in trust or escrow for payment to you. You will have no rights under this Agreement or the Plan other than those of a general unsecured creditor of the Company. RSUs represent unfunded and unsecured obligations of the Company, subject to the terms and conditions of the Plan and this Agreement. |
Notice Delivery |
By accepting the RSUs, you agree that notices may be given to you in writing either at your home or mailing address as shown in the records of the Company or any affiliate or by electronic transmission (including e-mail or reference to a website or other URL) sent to you through the normal process employed by the Company or any affiliate, as applicable, for communicating electronically with its employees. |
By signing this Agreement, you agree to all of the terms and conditions described above and in the Plan.
Exhibit 10.7
AMENDED AND RESTATED
PERNIX THERAPEUTICS HOLDINGS, INC.
2009 STOCK INCENTIVE PLAN
NONQUALIFIED STOCK OPTION AGREEMENT
COVER SHEET
Grantee Name: Graham G. Miao, Ph.D.
Grant Date: November 3, 2016
Number of shares of Common Stock: 95,000
Exercise Price per share of Common Stock: $3.15
Vesting Start Date: July 26, 2016
Vesting Schedule: One-third (1/3) of the Option shall vest on each of the first, second and third anniversaries of the Vesting Start Date, subject to your continued service with the Company on the applicable vesting date.
Expiration Date: November 2, 2026
By your signature below, you agree to all of the terms and conditions described in the Agreement and in the Plan, a copy of which will be provided on request. You agree that your Employment Agreement will control in the event any provision of this Agreement should appear to be inconsistent with your Employment Agreement. You further acknowledge that you have carefully reviewed the Plan, and agree that the Plan will control in the event any provision of this Agreement should appear to be inconsistent with the Plan.
Grantee: |
/s/ Graham G. Miao, Ph.D. |
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Date: |
November 3, 2016 |
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Graham G. Miao, Ph.D. |
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Company: |
/s/ Tasos Konidaris |
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Date: |
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Tasos Konidaris Director
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Attachment
This is not a share certificate or a negotiable instrument
.
AMENDED AND RESTATED
2009 STOCK INCENTIVE PLAN
NONQUALIFIED STOCK OPTION AGREEMENT
PERNIX THERAPEUTICS HOLDINGS, INC.
Nonqualified Stock Option |
This Agreement evidences the grant of an Option exercisable for the number of shares of Common Stock set forth on the Cover Sheet of this Agreement and subject to the vesting and other terms and conditions set forth in this Agreement and in the Plan. The Option is not intended to be an incentive stock option under Section 422 of the Code and will be interpreted accordingly. |
Vesting |
The Option will vest in accordance with the Vesting Schedule set forth on the Cover Sheet, subject to your continued service through each vesting date. You may not vest in more than the number of Options set forth on the Cover Sheet of this Agreement. Unless the termination of your service triggers accelerated vesting or other treatment of your Options pursuant to the terms of this Agreement or your Employment Agreement, you will immediately and automatically forfeit to the Company all of your unvested Options in the event your service terminates for any reason not addressed in this Agreement or your Employment Agreement.
Notwithstanding the Vesting Schedule set forth on the Cover Sheet, if your service is terminated by the Company without Cause (other than as a result of your death or Disability), on account of non-renewal of your Employment Agreement by the Company or if you resign with Good Reason (as each such term is defined below), your Option will become 100% vested upon such termination of service. For all purposes of this Agreement, the terms "Cause", "Good Reason" and "Disability" shall have the meanings set forth in your Employment Agreement.
|
Change of Control |
In the event of a Change of Control, your Option will be treated in the manner so provided in Section 12.10 of the Plan. |
Expiration of Option |
In all events, the Option will expire on the Expiration Date set forth on the Cover Sheet of this Agreement. The Option will expire earlier if your service terminates, as described below. Termination Other than for Cause or due to Death or Disability . If your service is terminated by the Company for any reason other than for Cause, death, or Disability, on account of non-renewal of your Employment Agreement by the Company or due to your resignation with Good Reason, you may exercise the vested portion of the Option, but only within the time period ending on the six (6) month anniversary of the termination of your service. Resignation without Good Reason . If you resign without Good Reason, you may exercise the vested portion of the Option, but only within the time period ending on the three (3) month anniversary of the termination of your service.
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2
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Termination due to Death or Disability . If your service terminates because of your death or Disability, if you die during the six (6)-month period after the termination of your service by the Company for any reason (other than for Cause, death or Disability), on account of non-renewal of your Employment Agreement by the Company or due to your resignation with Good Reason, or if you die during the three (3)-month period after your resignation without Good Reason, you may exercise the vested portion of your Option, but only within the time period ending on the date that is twelve (12) months after the termination of your service. Termination for Cause . If your service is terminated for Cause, the Option (including vested and unvested portions) will immediately terminate and no longer be exercisable. |
Leaves of Absence |
For purposes of the Option, your service does not terminate when you go on a bona fide employee leave of absence that the Company approves in writing if the terms of the leave provided for continued service crediting or when continued service crediting is required by applicable law or contract. Your service terminates in any event when the approved leave ends unless you immediately return to active employment. The Company, in its sole discretion, determines which leave counts for this purpose and when your service terminates for all purposes under the Plan. |
Notice of Exercise |
The Option may be exercised, in whole or in part, to purchase a whole number of vested shares of Common Stock of not less than 100 shares, unless the number of vested shares of Common Stock purchased is the total number available for purchase under the Option, by following the procedures described in the Plan and in this Agreement. When you wish to exercise the Option, you must exercise in the manner required or permitted by the Company. If someone other than you exercises the Option after your death, then that person must submit documentation reasonably acceptable to the Company verifying that the person has the legal authority to exercise the Option. |
Form of Payment |
When you exercise the Option, you must include payment of the Exercise Price indicated on the Cover Sheet of this Agreement for the shares of Common Stock that you are purchasing. Payment may be made in one (or a combination) of the following forms:
|
3
4
5
Data Privacy |
To administer the Plan, the Company may process personal data about you. This data includes, without limitation, information provided in this Agreement and any changes to such information, other appropriate personal and financial data about you, including your contact information, payroll information and any other information that the Company deems appropriate to facilitate the administration of the Plan. By accepting the Option, you give explicit consent to the Company to process any such personal data. |
Notice Delivery |
By accepting the Option, you agree that notices may be given to you in writing either at your home or mailing address as shown in the records of the Company or any affiliate or by electronic transmission (including e-mail or reference to a website or other URL) sent to you through the normal process employed by the Company or any affiliate, as applicable, for communicating electronically with its employees. |
By signing this Agreement, you agree to all of the terms and conditions described above and in the Plan.
6
Exhibit 10.8
AMENDED AND RESTATED
PERNIX THERAPEUTICS HOLDINGS, INC.
2015 OMNIBUS INCENTIVE PLAN
RESTRICTED SHARE UNIT AGREEMENT
COVER SHEET
Pernix Therapeutics Holdings, Inc., a Maryland corporation (the " Company "), hereby grants restricted share units relating to shares of its common stock, par value $0.01 per share (the " Common Stock "), to the Grantee named below (the " RSU "). Additional terms and conditions of the grant are set forth on this Cover Sheet and in the attached Restricted Share Unit Agreement (together, the " Agreement "), in the Company's Amended and Restated 2015 Omnibus Incentive Plan (as further amended from time to time, the " Plan ") and in your Employment Agreement with the Company, dated as of November 3, 2016 (the " Employment Agreement ").
Grantee Name: Graham G. Miao, Ph.D.
Grant Date: November 3, 2016
Number of Restricted Share Units: 65,500
Vesting Start Date: July 26, 2016
Vesting Schedule: One-third (1/3) of the RSUs shall vest on each of the first, second and third anniversaries of the Vesting Start Date, subject to your continued service with the Company on the applicable vesting date.
By your signature below, you agree to all of the terms and conditions described in the Agreement and in the Plan, a copy of which will be provided on request. You agree that your Employment Agreement will control in the event any provision of this Agreement should appear to be inconsistent with your Employment Agreement. You further acknowledge that you have carefully reviewed the Plan, and agree that the Plan will control in the event any provision of this Agreement should appear to be inconsistent with the Plan.
Grantee: |
/s/ Graham G. Miao, Ph.D. |
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Date: |
November 3, 2016 |
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Graham G. Miao, Ph.D. |
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Company: |
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Date: |
November 3, 2016 |
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Tasos Konidaris Director
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Attachment
This is not a share certificate or a negotiable instrument
.
AMENDED AND RESTATED
RESTRICTED SHARE UNIT AGREEMENT
Restricted Share Units
This Agreement evidences an award of RSUs in the number set forth on the Cover Sheet of this Agreement and subject to the vesting and other terms and
conditions set forth in this Agreement and in the Plan.
Vesting
The RSUs will vest in accordance with the Vesting Schedule set forth on the Cover Sheet, subject to your continued service through each
vesting date. You may not vest in more than the number of shares of Common Stock covered by your RSUs, as set forth on the Cover Sheet of this Agreement.
Unless the termination of your service triggers accelerated vesting or other treatment of your RSUs pursuant to the terms of this Agreement or your
Employment Agreement, you will immediately and automatically forfeit to the Company all of your unvested RSUs in the event your service terminates for any reason not addressed
in this Agreement or your Employment Agreement.
Notwithstanding the Vesting Schedule set forth on the Cover Sheet, if your service is terminated by the Company without Cause (other than as a result of
your death or Disability), on account of non-renewal of your Employment Agreement by the Company or if you resign with Good Reason (as each such term is defined below), your
RSUs will become 100% vested upon such termination of service. For all purposes of this Agreement, the terms "Cause", "Good Reason" and
"Disability" shall have the meanings set forth in your Employment Agreement.
Change of Control
In the event of a Change of Control, your RSUs will be treated in the manner so provided in Section 10 of the Plan.
Leaves of Absence
For purposes of the RSUs, your service does not terminate when you go on a
bona fide
employee leave of absence that the
Company approves in writing if the terms of the leave provided for continued service crediting or when continued service crediting is required by applicable law or contract. Your
service terminates in any event when the approved leave ends unless you immediately return to active employment. The Company, in its sole discretion, determines which leave
counts for this purpose and when your service terminates for all purposes under the Plan.
Dividend Equivalents
Should any dividend be declared and paid with respect to the shares of Common Stock during the period between the Grant Date and the
date on which the RSUs are delivered as shares of Common Stock, the Company shall credit to a dividend equivalent bookkeeping account the value of such
PERNIX THERAPEUTICS HOLDINGS, INC.
2015 OMNIBUS INCENTIVE PLAN
Retention Rights |
This Agreement and the RSUs evidenced by this Agreement do not give you the right to be retained by the Company or any affiliate in any capacity. Unless otherwise specified in any employment or other written agreement between you and the Company or any affiliate, including your Employment Agreement, the Company and any affiliate reserve the right to terminate your service at any time and for any reason. |
Shareholder Rights |
You, or your estate or heirs, have no rights as a shareholder of the Company until the shares of Common Stock have been issued and either a certificate evidencing the shares of Common Stock has been issued or an appropriate entry has been made on the Company's books. No adjustments are made for dividends, distributions, or other rights if the applicable record date occurs before your certificate is issued or the appropriate book entry is made, except as described in the Plan. The RSUs will be subject to the terms of any applicable agreement of merger, liquidation, or reorganization in the event that the Company is subject to such corporate activity. |
Applicable Law |
The validity and construction of this Agreement will be governed by, and construed and interpreted in accordance with, the laws of the State of Maryland, other than any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of this Agreement to the substantive laws of any other jurisdiction. |
The Plan |
The text of the Plan is incorporated into this Agreement. Certain capitalized terms used in this Agreement are defined in the Plan, and have the meaning set forth in the Plan, unless otherwise referenced as being defined in the Employment Agreement . This Agreement and the Plan constitute the entire understanding between you and the Company regarding the RSUs. Any prior agreements, commitments, or negotiations concerning the RSUs are superseded; except that the Employment Agreement and any other written confidentiality, non-competition, non-solicitation, and/or severance agreement, or any other written agreement between you and the Company or any affiliate, as applicable, will supersede this Agreement with respect to its subject matter. |
Data Privacy |
To administer the Plan, the Company may process personal data about you. This data includes, without limitation, information provided in this Agreement and any changes to such information, other appropriate personal and financial data about you, including your contact information, payroll information and any other information that the Company deems appropriate to facilitate the administration of the Plan. By accepting the RSUs, you give explicit consent to the Company to process any such personal data. |
Code Section 409A |
The grant of your RSUs under this Agreement is intended to comply with Section 409A of the Code (" Section 409A ") to the extent subject thereto, and, accordingly, to the maximum extent permitted, this Agreement will be interpreted and administered to be in compliance with Section 409A. Notwithstanding anything to the contrary in this Agreement, the Company is not making any representation hereunder as to the particular tax treatment of the RSUs. To the extent that the RSUs constitute "deferred compensation" under Section 409A, a termination of service occurs only upon an event that would be a "separation from service" within the meaning of Section 409A. If, at the time of your separation from service, (i) you are a "specified employee" within the meaning of Section 409A, and (ii) the Company makes a good faith determination that an amount payable on account of your separation from service constitutes deferred compensation (within the meaning of Section 409A), the payment of which is required to be delayed pursuant to the six (6)-month delay rule set forth in Section 409A to avoid taxes or penalties under Section 409A (the " Delay Period "), then the Company will not pay such amount on the otherwise scheduled payment date but will instead pay it in a lump sum on the first business day after the Delay Period (or upon your death, if earlier), without interest. Each installment of RSUs that vest under this Agreement (if there is more than one installment) will be considered one of a series of separate payments for purposes of Section 409A. |
Disclaimer of Rights |
The grant of RSUs under this Agreement will in no way be interpreted to require the Company to transfer any amounts to a third-party trustee or otherwise hold any amounts in trust or escrow for payment to you. You will have no rights under this Agreement or the Plan other than those of a general unsecured creditor of the Company. RSUs represent unfunded and unsecured obligations of the Company, subject to the terms and conditions of the Plan and this Agreement. |
Notice Delivery |
By accepting the RSUs, you agree that notices may be given to you in writing either at your home or mailing address as shown in the records of the Company or any affiliate or by electronic transmission (including e-mail or reference to a website or other URL) sent to you through the normal process employed by the Company or any affiliate, as applicable, for communicating electronically with its employees. |
By signing this Agreement, you agree to all of the terms and conditions described above and in the Plan.
Exhibit 99.1
Pernix Therapeutics Appoints Two Board Members
Regains Compliance with NASDAQ Listing Rule 5605(c)(2)(A)
MORRISTOWN, N.J., November 7, 2016 - Pernix Therapeutics Holdings, Inc. (NASDAQ: PTX), a specialty pharmaceutical company with a focus on Pain and CNS conditions, today announced the appointment of Graham G. Miao, Ph.D. and Dennis H. Langer, M.D., J.D. to its Board of Directors, effective immediately. The Board also determined that Dr. Langer is an independent director and appointed him as chairperson of the Compensation Committee and as a member of the Audit and Nominating Committees. Accordingly, Pernix regained compliance with NASDAQ Listing Rule 5605(c)(2)(A), which requires Pernix to have at least three independent directors on its Audit Committee for continued listing on The NASDAQ Global Market.
"I'm pleased to welcome Dr. Miao and Dr. Langer to the Board," said John Sedor, Chairman and Chief Executive Officer. "Dr. Miao and Dr. Langer are industry leaders. Their breadth of knowledge and experience will provide invaluable insight to Pernix as we move forward with the vision that I outlined when I first took over as Chief Executive Officer - to grow our current brands, pursue other growth opportunities and, ultimately, maximize shareholder value."
Dr. Miao has served as Pernix's President and Chief Financial Officer since July 2016. He was Senior Advisor to the Pernix interim CEO and Board of Directors from May 2016 to July 2016. Prior to joining Pernix, Dr. Miao served as Executive Vice President, Chief Financial Officer of PDI, Inc., a NASDAQ listed healthcare commercialization and molecular diagnostic company, from October 2014 until March 2016. In this role, he helped achieve double-digit revenue growth and lead the successful sale of PDI's contract sales business to Publicis Healthcare. From September 2011 to September 2014, Dr. Miao served as Executive Vice President and Chief Financial Officer and held the additional role as Co- President and Co-Chief Executive Officer from September 2013 to September 2014 of Delcath Systems, Inc., a NASDAQ traded specialty pharmaceutical and medical device company focused on cancer treatment. From September 2009 until September 2011, Dr. Miao served as Chief of Staff for the Global CFO Organization at Dun & Bradstreet Corporation. Previously, Dr. Miao held senior management roles including EVP and CFO at Pagoda Pharmaceuticals and Vice President of Strategic Planning & Financial Analysis at Symrise Inc. He also worked at Schering-Plough Corporation, serving as division CFO for the company's $3 billion primary care pharmaceuticals franchise. Dr. Miao held management roles at Pharmacia Corporation, including division CFO for the company's $1.3 billion Global Oncology franchise where he led finance teams across marketing, sales, medical affairs, business development, and mergers & acquisitions. Earlier in his career, Dr. Miao worked as a biotechnology equity analyst at J.P. Morgan and a research scientist at Roche. Dr. Miao earned an M.B.A. in Finance and a Ph.D., M.Phil., M.A. in Biological Sciences from Columbia University, an M.S. in Molecular Biology from Arizona State University, and a B.S. in Biology from Fudan University.
Dr. Langer has served as director of several biotechnology, specialty pharmaceutical, and diagnostic companies, and has been CEO and/or co-founder of several health care companies. From January 2013 to July 2014 he served as Chairman and Chief Executive Officer of AdvanDx, Inc., a healthcare solutions company. From 2005 to 2010, Dr. Langer served as a Managing Partner of Phoenix IP Ventures, a private equity/venture capital firm specializing in life sciences. Previously, he was President, North America, of Dr. Reddy's Laboratories, Limited, a multinational pharmaceutical company.
From September 1994 until January 2004, Dr. Langer held several high-level positions at GlaxoSmithKline plc, and its predecessor, SmithKline Beecham, including most recently as a Senior Vice President of Research and Development. Prior to SmithKline Beecham, Dr. Langer was President and CEO of Neose Technologies, Inc. and before that held R&D and marketing positions at pharmaceutical companies Eli Lilly and Company, Abbott Laboratories and G. D. Searle & Company. At the beginning of his career, he was a Chief Resident at Yale University School of Medicine, and held clinical fellowships at Harvard Medical School and the National Institutes of Health. Dr. Langer currently serves as a Director of Myriad Genetics, Inc., Dicerna Pharmaceuticals, Inc., and several private companies. Dr. Langer served as a Director of several pharmaceutical and biotechnology companies, including Auxilium Pharmaceuticals, Inc., Ception Therapeutics, Inc. (acquired by Cephalon, Inc.), Cytogen Corporation, (acquired by EUSA Pharma, Inc.) Delcath Systems, Inc., Myrexis, Inc. Pharmacopeia, Inc. (acquired by Ligand Pharmaceuticals, Inc.), Sirna Therapeutics, Inc. (acquired by Merck & Co., Inc.), and Transkaryotic Therapies, Inc. (acquired by Shire plc), Dr. Langer is a Clinical Professor, Department of Psychiatry, Georgetown University School of Medicine. Dr. Langer received a J.D. from Harvard Law School, a M.D. from Georgetown University School of Medicine, and a B.A. in Biology from Columbia University.
About Pernix Therapeutics
Pernix Therapeutics is a specialty pharmaceutical business with a focus on acquiring, developing and commercializing prescription drugs primarily for the U.S. market. The Company targets underserved therapeutic areas such as CNS, including neurology and pain management, and has an interest in expanding into additional specialty segments. The Company promotes its branded products to physicians through its integrated Pernix sales force and markets its generic portfolio through its wholly owned subsidiaries, Macoven Pharmaceuticals, LLC and Cypress Pharmaceutical, Inc.
To learn more about Pernix Therapeutics, visit www.pernixtx.com.
CONTACT
Investor Relations
Matthew P. Duffy, 212-915-0685
LifeSci Advisors, LLC
matthew@lifesciadvisors.com