UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): September 25, 2014
RESPONSE
GENETICS, INC.
(Exact name of registrant as specified in its charter)
| Delaware | 1-33509 | 11-3525548 | ||
| (State or other | (Commission File | (IRS Employer | ||
| jurisdiction of | Number) | Identification No.) | ||
| incorporation) |
1640 Marengo St., 7th Floor
Los Angeles, California 90033
(323) 224-3900
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Not Applicable
(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:
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On September 25, 2014, Response Genetics, Inc. (the “Company”) and its Chief Executive Officer, Thomas A. Bologna, entered into an Amendment No. 1 to Employment Agreement (the “Amendment”) which amended certain provisions of Mr. Bologna’s existing Employment Agreement that was effective as of December 21, 2011 (the “Employment Agreement”).
The Amendment extends the term of the Employment Agreement to December 31, 2015 provided that Mr. Bologna will have the right to terminate his employment with the Company at any time for any reason (or no reason) upon thirty (30) days prior written notice to the Company provided that no notice period is required if such termination is following a change of control of the Company.
Mr. Bologna will continue to be eligible to receive an annual incentive bonus (the “Annual Bonus”) as determined by the compensation committee of the Board of Directors of the Company provided that Mr. Bologna’s Annual Bonus for 2014 will equal his Target Annual Bonus (as defined in the Employment Agreement) for 2014.
If Mr. Bologna’s employment is terminated by the Company with Cause (as defined in the Employment Agreement), Mr. Bologna will only be entitled to receive the Accrued Obligations (as defined in the Employment Agreement) and his Annual Bonus for 2014. If Mr. Bologna’s employment is terminated (i) by the Company without Cause, (ii) by Mr. Bologna for any reason (or no reason), or (iii) by reason of Mr. Bologna’s disability or death, then within ten (10) days following Mr. Bologna’s execution and delivery of a release of claims, Mr. Bologna will be entitled to receive a lump sum cash benefit equal to 1.5 times the sum of Mr. Bologna’s then current base salary and the amount of Annual Bonus paid to Mr. Bologna in 2013 applicable to the fiscal year ended December 31, 2012.
Except as described in the Amendment, all provisions of the Employment Agreement will remain in full force and effect. There were no incentives or inducements offered in connection with the Amendment other than the modifications to certain provisions of the Employment Agreement as described herein. The Employment Agreement was previously filed as Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on December 23, 2011.
The Amendment is included in this filing as Exhibit 10.1 and is incorporated herein by reference. This summary does not purport to be complete and is subject to and qualified in its entirety by reference to the text of the Amendment.
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Item 9.01. Financial Statements and Exhibits.
| (d) | Exhibits. |
| Exhibit # | Description | |
|
10.1 |
Amendment No. 1 to Employment Agreement, dated December 21, 2011, by and between Thomas A. Bologna and Response Genetics, Inc., dated September 25, 2014. |
| -3- |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| RESPONSE GENETICS, INC. | ||
| Date: September 30, 2014 | By: | /s/ Adanech Getachew |
| Name: | Adanech Getachew | |
| Title: | General Counsel | |
Exhibit 10.1
AMENDMENT NO. 1
TO
EMPLOYMENT AGREEMENT
This Amendment No. 1 (“Amendment”) to the Agreement (defined below) is entered into as of September 25, 2014 between Thomas A. Bologna (“Executive”) and Response Genetics, Inc., a Delaware corporation (the “Company”).
WHEREAS, the Company and Executive are parties to that certain employment agreement dated as of December 21, 2011 which governs Executive’s employment with the Company (the “Agreement”); and
WHEREAS, the Company and Executive have determined to amend the Agreement as of the dates set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained and for other good and valuable consideration, the receipt and sufficiency of which are mutually acknowledged, the parties agree as follows:
1. Capitalized Terms. Capitalized terms that are not defined in this Amendment shall have the meanings ascribed thereto in the Agreement.
2. Amendment Effective as of October 1, 2014. Effective as of October 1, 2014, Section 3 of the Agreement is hereby amended to read as follows:
“3. Place of Performance. The parties acknowledge that the Company’s main offices are located in Los Angeles, California. Executive shall not be required to reside in Los Angeles, California, or relocate his residence.”
3. Amendments Effective as of January 1, 2015. Effective as of January 1, 2015, the Agreement is hereby amended as follows:
(i) Section 1 is hereby amended to read as follows:
“1. Term. The term of Executive’s employment hereunder shall commence at the Effective Date and shall end on December 31, 2015 (the ‘Employment Period’), unless earlier terminated as provided in Section 5 hereof. At any time during 2015, Executive shall have the right for any reason (or no reason) to terminate Executive’s employment hereunder upon thirty (30) days prior written notice to the Company in accordance with Section 12 hereof; provided that no notice period shall be required if such termination occurs following a Change of Control. The terms and conditions of the Company’s rights to terminate Executive’s employment hereunder are provided in Section 5 hereof.”
(ii) Section 4(b) is hereby amended by the addition of a new penultimate sentence thereto to read as follows:
“Executive’s Annual Bonus for 2014 shall equal the Target Annual Bonus for 2014, and shall be paid on the date the Company regularly pays its annual bonuses or the termination of Executive’s employment, whichever date is earlier.”
(iii) Section 5 is hereby amended to read as follows:
“5. Termination. Executive’s employment hereunder shall terminate during the Employment Period upon any of the following: (i) Executive’s death, (ii) a termination by the Company for Disability, (iii) a termination by the Company with or without Cause, and (iv) a termination by Executive for any reason (or no reason).
(a) Notice of Termination. Any purported termination by the Company of Executive’s employment (other than termination due to Executive’s death) shall be communicated by written Notice of Termination delivered to Executive in accordance with Section 12 hereof. For purposes of this Agreement, a ‘Notice of Termination’ shall mean a notice issued by the Company that shall indicate the specific termination provision in this Agreement relied upon and shall set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of Executive’s employment under the provision so indicated. Notwithstanding Section 12 below, Executive may provide notice of termination of his employment at any time by means of email, letter, memo or other writing sent to the Company’s General Counsel or the Company’s Lead Director.
(b) Date of Termination. For purposes of this Agreement, ‘Date of Termination’ shall mean the following: (i) if Executive’s employment is terminated by Executive’s death, the date of Executive’s death; (ii) if Executive’s employment is terminated by the Company for Disability, thirty (30) days after the Notice of Termination is given (provided that such Notice of Termination may be provided to Executive prior to the date that Executive has satisfied requirements for being deemed to have a ‘Disability’); (iii) if Executive’s employment is terminated by the Company with Cause, the date specified in the Notice of Termination (but no earlier than the date such Notice of Termination is given), subject to Executive’s right to cure as set forth herein; (iv) if Executive’s employment is terminated by Executive, the last day of the applicable notice period required by Section 1 hereof; or (v) if Executive’s employment is terminated by the Company for any other reason, the date specified in the Notice of Termination.”
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(iv) Section 6(b) is hereby amended to read as follows:
“(b) Termination by the Company with Cause. If Executive’s employment hereunder is terminated during the Employment Period by the Company with Cause, then Executive shall be entitled to receive only the Accrued Obligations and his 2014 Annual Bonus.”
(v) The prefatory language to Section 6(c) is hereby amended to read as follows:
“(c) Termination by Company without Cause, by Executive, or by Reason of Disability or Death. If Executive’s employment hereunder is terminated during the Employment Period (i) by the Company without Cause, (ii) by Executive for any reason (or no reason), or (iii) by reason of Executive’s Disability or death, then within ten (10) days following Executive’s execution and delivery of the Release of Claims (defined below), Executive will be entitled to receive:”
(vi) Section 6(c)(ii) is hereby amended to read as follows:
“(ii) a lump sum cash benefit equal to 1.5 times the sum of (I) Executive’s then-current Base Salary and (II) the Past Bonus;”
(vii) Section 6(d) is hereby deleted.
(viii) Section 6(f) is hereby amended to delete the reference to “or Section 6(d)”.
(ix) The second sentence of Section 11(a) is hereby amended to delete the reference to “with Good Reason”.
(x) The Company’s address in Section 12 is hereby amended to read as follows:
“Response Genetics, Inc.
1640 Marengo Street, 7th Floor
Los Angeles, California 90033
Attention: Lead Director”
(xi) Section 18(m) is hereby deleted and Sections 18(n) and 18(o) are hereby re-designated as Sections 18(m) and 18(n), respectively.
(xii) Section 18(n) is hereby amended to read as follows:
“(n) ‘Past Bonus’ shall mean, as of any date of determination, the Annual Bonus paid to Executive in 2013 applicable to the fiscal year ended December 31, 2012.”
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4. Ratification and Confirmation. Except as specifically amended hereby, the Agreement is hereby ratified and confirmed in all respects and remains in full force and effect.
5. Entire Agreement. The Agreement and this Amendment constitute the entire understanding and agreement of the parties hereto regarding the employment of Executive and supersede all prior negotiations, discussions, correspondence, communications, understandings and agreements between the parties with respect to the subject matter hereof.
6. Governing Law. The validity, interpretation, construction, and performance of this Amendment shall be governed by the laws of the State of California, without reference to its conflict-of-law rules.
7. Counterparts. This Amendment may be executed in several counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same instrument.
8. Headings. Captions and Section headings in this Amendment are provided merely for convenience and shall not affect the interpretation of any of the provisions hereof.
IN WITNESS WHEREOF, this Amendment has been executed as of the date first set forth above.
| RESPONSE GENETICS, INC. | ||
| By: | /s/ Kirk K. Calhoun | |
| Name: Kirk K. Calhoun | ||
| Title: Lead Director | ||
| /s/ Thomas A. Bologna | ||
| Thomas A. Bologna | ||
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