Exhibit
10.1
EMPLOYMENT
AGREEMENT
THIS
EMPLOYMENT AGREEMENT (the “Agreement”) is entered into as of February 22, 2022 is entered into between Shaun O’Neil
(“Executive”), and PAVmed Inc., a Delaware corporation having its principal office at One Grand Central Place, Suite 4600,
New York, New York 10165 (“Company”) to become effective immediately.
WHEREAS,
the Company and the Executive desire to enter into this Agreement to set forth the terms and conditions of Executive’s employment
with the Company.
NOW,
THEREFORE, in consideration of the premises and of the mutual covenants and agreements hereinafter set forth, the Company and the Executive
hereby agree as follows:
1. Employment,
Duties and Acceptance.
1.1 General.
The Company hereby agrees to employ the Executive as its Chief Operating Officer and Executive Vice President. All of Executive’s
powers and authority in any capacity shall at all times be subject to the direction and control of the Company’s Chief Executive
Officer (“CEO”). The Executive may be assigned such management and supervisory responsibilities and executive duties for
the Company or any subsidiary of the Company, including serving as an executive officer and/or director of any subsidiary, as are consistent
with Executive’s status as Chief Operating Officer and Executive Vice President.
1.2 Full-Time
Position. Executive accepts such employment and agrees to devote his best efforts and full time to promote the business and affairs
of the Company and its affiliated entities and shall be engaged in other business activities only to the extent that such activities
do not materially interfere or conflict with his obligations to the Company hereunder. Nothing herein, other than Section 5.4 below,
shall be construed as preventing Executive from making and supervising personal investments, or serving on civic, philanthropic, educational,
or charitable boards or committees, or with the prior written consent of the Board, in its sole discretion, on either public or private
corporate boards so long as such activities are not restricted under the Company’s Code of Conduct and employment practices. Executive
acknowledges and agrees that Schedule 1.2 attached hereto represents a complete list of corporate boards on which the Executive serves
as of the effective date of this agreement. Notwithstanding any provision of this Section to the contrary, in no event shall the Executive
invest in any business competitive with the Company or that would otherwise violate the provisions of Section 5.4 below.
1.3 Location.
Executive will perform his duties in San Diego County, California or in such other location as may be mutually agreed by Executive and
the Company. Executive shall undertake such travel, within or outside the United States, as is necessary to perform his duties hereunder.
2. Term.
The initial term of this Agreement shall commence on February 22, 2022 (“Effective Date”) and terminate on the third anniversary
of the Effective Date (the “Initial Term”) unless terminated earlier as provided in this Agreement. In addition, the term
of this Agreement shall thereafter automatically renew for periods of one-year (the “Renewal Term”) unless either party gives
written notice to the other party at least 60 days prior to the end of the term or at least 60 days prior to any one-year renewal period,
that the Agreement shall not be further extended. The period commencing on the Effective Date and ending on the date on which the term
of the Executive’s employment under the Agreement terminates is referred to herein as the “Term”.
3. Compensation
and Benefits.
3.1 Salary.
The Company shall pay to Executive a salary (“Base Salary”) at the annual rate of $325,000. Executive’s compensation
shall be paid in equal, periodic installments in accordance with the Company’s normal payroll procedures. The Executive’s
base salary shall be reviewed periodically by the Board or Committee (as defined below) pursuant to the Board or Committee’s normal
performance review policies for senior level executives.
3.2 Bonus.
In addition to the Base Salary, Executive shall be eligible to receive a discretionary performance bonus (“Bonus”) with a
target of fifty percent (50%) of the Executive’s Base Salary in effect as of December 31st of the preceding year based
on Executive’s and the Company’s performance over the preceding year. The payment and amount of any Bonus shall be in the
sole discretion of the Board or the Compensation Committee of the Board (the “Committee”).
3.3 Equity
Awards. Subject to approval by the Committee, Executive will be granted an option (the “Option”) to acquire 300,000 shares
of the Company’s common stock, at an exercise price per share basis equal to the closing price of the Company’s common stock
as of the date immediately prior to the date of grant (the “Grant Date”). Such option will be subject to the terms and conditions
of the Company’s 2014 Long-Term Incentive Equity Plan and a stock option agreement in the Company’s standard form (pursuant
to which the Option shall be granted).
3.4 Benefits.
Executive shall be entitled to such medical, life, disability and other benefits as are generally afforded to other executives of the
Company, subject to applicable waiting periods and other conditions, as well as participation in all other company-wide employee benefits,
including a defined contribution pension plan and 401(k) plan, as may be made available generally to executive employees from time to
time. The Executive shall be eligible to participate in the Company’s annual and long-term incentive plans and programs in accordance
with the terms of such plans and programs as in effect and afforded to other senior executives of the Company at levels determined by
the Board (or committee of the Board).
3.5 Vacation.
Executive shall be entitled to twenty (20) days of paid vacation in each year during the Term and to a reasonable number of other days
off for religious and personal reasons in accordance with customary Company policy.
3.6 Expenses.
The Company shall pay or reimburse Executive for all transportation, hotel and other expenses reasonably incurred by Executive on business
trips and for all other ordinary and reasonable out-of-pocket expenses actually incurred by him in the conduct of the business of the
Company, including expenses relating to his laptop, cell phone or other similar devices, against itemized vouchers submitted with respect
to any such expenses and approved in accordance with customary procedures.
4. Termination.
4.1 Death.
If Executive dies during the Term, Executive’s employment hereunder shall terminate and the Company shall pay to Executive’s
estate the amount set forth in Section 4.6(a).
4.2 Disability.
The Company, by written notice to Executive, may terminate Executive’s employment hereunder if Executive shall fail because of
illness or incapacity to render services of the character contemplated by this Agreement for one hundred eighty (180) days. Upon such
termination, the Company shall pay to Executive the amount set forth in Section 4.6(a).
4.3 By
Company for “Cause” or By the Executive Without “Good Reason”. The Company, by written notice to Executive,
may terminate Executive’s employment hereunder for “Cause.” As used herein, “Cause” shall mean: (a) the
refusal or failure by Executive to carry out any lawful direction of the Board which are of a material nature and consistent with his
status as Chief Operating Officer and Executive Vice President (or whichever positions Executive holds at such time), or the refusal
or failure by Executive to perform a material part of Executive’s duties hereunder; (b) the commission by Executive of a material
breach of any of the provisions of this Agreement; (c) fraud or dishonest action by Executive in his relations with the Company or any
of its subsidiaries or affiliates (“dishonest” for these purposes shall mean Executive’s knowingly or recklessly making
of a material misstatement or omission for his personal benefit); or (d) the conviction of Executive of a felony under federal or state
law. Notwithstanding the foregoing, no “Cause” for termination shall be deemed to exist with respect to Executive’s
acts described in clauses (a) or (b) above, unless the Company shall have given written notice to Executive within a period not to exceed
thirty (30) calendar days of the initial existence of the occurrence, specifying the “Cause” with reasonable particularity
and, within thirty (30) calendar days after such notice, Executive shall not have cured or eliminated the problem or thing giving rise
to such “Cause;” provided, however, no more than two cure periods need be provided during any twelve-month period. Upon such
termination, the Company shall pay to Executive the amount set forth in Section 4.6(b). The Company shall also pay such amount to Executive
upon his termination of employment without “Good Reason” (as defined below), which Executive shall have the right to do on
at least thirty (30) days written notice to the Company.
4.4 By
Executive for “Good Reason”. The Executive, by written notice to the Company, may terminate Executive’s employment
hereunder if a “Good Reason” exists. For purposes of this Agreement, “Good Reason” shall mean the occurrence
of any of the following circumstances without the Executive’s prior written consent: (a) a substantial and material adverse change
in the nature of Executive’s title, duties or responsibilities with the Company (other than as a director of the Company) that
represents a demotion from his title, duties or responsibilities as in effect immediately prior to such change (such change, a “Demotion”);
(b) material breach of this Agreement by the Company; (c) a failure by the Company to make any payment to Executive when due, unless
the payment is not material and is being contested by the Company, in good faith; (d) a change of the principal office or work place
assigned to the Executive to a location more than 35 miles distant from its location immediately prior to such change; (e) a material
reduction of the Executive’s Base Salary or bonus opportunity, unless pursuant to a reduction in such items applicable proportionally
to all senior management and board members; or (f) a liquidation, bankruptcy or receivership of the Company. Notwithstanding the foregoing,
no “Good Reason” shall be deemed to exist with respect to the Company’s acts described in clauses (a), (b), (c), (d)
or (e) above, unless Executive shall have given written notice to the Company within a period not to exceed thirty (30) calendar days
of the initial existence of the occurrence, specifying the “Good Reason” with reasonable particularity and, within thirty
(30) calendar days after such notice, the Company shall not have cured or eliminated the problem or thing giving rise to such “Good
Reason”; provided, however, that no more than two cure periods shall be provided during any twelve-month period of a breach of
clauses (a), (b), (c), (d), or (e) above. Upon such termination, the Company shall pay to Executive the amount set forth in Section 4.6(c).
4.5 By
Company Without “Cause”. The Company may terminate Executive’s employment hereunder without “Cause”
by giving at least thirty (30) days written notice to Executive. Upon such termination, the Company shall pay to Executive the amount
set forth in Section 4.6(c).
4.6 Compensation
Upon Termination. In the event that Executive’s employment hereunder is terminated, the Company shall pay to Executive the
following compensation:
(a) Payment
Upon Death or Disability. In the event that Executive’s employment is terminated pursuant to Sections 4.1 or 4.2, the Company
shall no longer be under any obligation to Executive or his legal representatives pursuant to this Agreement except for: (i) the Base
Salary due Executive pursuant to Section 3.1 hereof through the date of termination; (ii) any Bonus which would have become payable under
Section 3.2 for the year in which the employment was terminated prorated by multiplying the full amount of the Bonus by a fraction, the
numerator of which is the number of “full calendar months” worked by Executive during the year of termination and the denominator
of which is 12 (a “full calendar month” is a month in which the Executive worked at least two weeks); (iii) all earned and
previously approved but unpaid Bonuses for any year prior to the year of termination; (iv) all valid expense reimbursements, and (v)
all unused vacation pay through the date of termination required by law to be paid.
(b) Payment
Upon Termination by the Company For “Cause” or by the Executive Without Good Reason. In the event that the Company terminates
Executive’s employment hereunder pursuant to Section 4.3, the Company shall have no further obligations to the Executive hereunder,
except for: (i) the Base Salary due Executive pursuant to Section 3.1 hereof through the date of termination (ii) all valid expense reimbursements
and (iii) all unused vacation pay through the date of termination required by law to be paid.
(c) Payment
Upon Termination by Company Without Cause or by Executive for Good Reason. In the event that Executive’s employment is terminated
pursuant to Sections 4.4 or 4.5, the Company shall have no further obligations to Executive hereunder except for: (i) the Base Salary
(at the rate in effect immediately before Executive’s termination or resignation, as applicable) due Executive pursuant to Section
3.1 hereof for twelve (12) months from the date of termination; (ii) any Bonus which would have become payable under Section 3.2 for
the year in which the employment was terminated prorated by multiplying the full amount of the Bonus by a fraction, the numerator of
which is the number of “full calendar months” worked by Executive during the year of termination and the denominator of which
is 12 (a “full calendar month” is a month in which the Executive worked at least two weeks); (iii) the Base Salary due Executive
pursuant to Section 3.1 hereof through the date of termination; (iv) all valid expense reimbursements; (v) to the extent the Executive
timely elects to receive continuation coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”),
the Company shall pay or reimburse the Executive, on a monthly basis, an amount equal to the full monthly premium for such coverage,
from the date of termination until the earlier of (a) the date twelve (12) months following the date of termination, and (B) the date
of Executive becoming eligible for coverage under a new employer’s health insurance plan (the COBRA health care continuation coverage
period under Section 4980B of the Internal Revenue Code of 1986, as amended (the “Code”) shall run concurrently with the
foregoing period); and (vi) all unused vacation pay through the date of termination required by law to be paid, subject, in the case
of clause (i) and (ii), to Executive’s compliance with Section 5 and to Executive’s execution of a release of claims in favor
of the Company, its affiliates and their respective officers and directors in a form provided by the Company and such release becoming
effective,.
(d) Executive
shall have no duty to mitigate awards paid or payable to him pursuant to this Agreement, and any compensation paid or payable to Executive
from sources other than the Company will not offset or terminate the Company’s obligation to pay to Executive the full amounts
pursuant to this Agreement.
5. Protection
of Confidential Information; Non-Competition.
5.1 Acknowledgment.
Executive acknowledges that:
(a) As
a result of his employment with the Company, Executive will obtain secret and confidential information concerning the business of the
Company and its subsidiaries (referred to collectively in this Section 5 as the “Company”), including, without limitation,
financial information, proprietary rights, trade secrets and “know-how,” customers and sources (“Confidential Information”).
(b) The
Company will suffer substantial damage which will be difficult to compute if, during the period of his employment with the Company or
thereafter, Executive should enter a business competitive with the Company or divulge Confidential Information.
(c) The
provisions of this Agreement are reasonable and necessary for the protection of the business of the Company.
5.2 Confidentiality.
Executive agrees that he will not at any time, during the Term or thereafter, divulge to any person or entity any Confidential Information
obtained or learned by him as a result of his employment with the Company, except (i) in the course of performing his duties hereunder,
(ii) with the Company’s prior written consent; (iii) to the extent that any such information is in the public domain other than
as a result of Executive’s breach of any of his obligations hereunder; or (iv) where required to be disclosed by law, regulation,
stock exchange rule, court order, subpoena or other government process. If Executive shall be required to make disclosure pursuant to
the provisions of clause (iv) of the preceding sentence, Executive promptly, but in no event more than 48 hours after learning of such
subpoena, court order, or other government process, shall notify, confirmed by mail, the Company and, at the Company’s expense,
Executive shall: (a) take all reasonably necessary and lawful steps required by the Company to defend against the enforcement of such
subpoena, court order or other government process, and (b) permit the Company to intervene and participate with counsel of its choice
in any proceeding relating to the enforcement thereof.
5.3 Documents.
Upon termination of his employment with the Company, Executive will promptly deliver to the Company all memoranda, notes, records, reports,
manuals, drawings, blueprints and other documents (and all copies thereof) relating to the business of the Company and all property associated
therewith, which he may then possess or have under his control; provided, however, that Executive shall be entitled to retain copies
of such documents reasonably necessary to document his financial relationship with the Company.
5.4 Non-competition.
During the Term and for a period of one (1) year thereafter, or two (2) years thereafter in the event of a Change of Control, Executive,
without the prior written permission of the Company, shall not, anywhere in the world, (i) be employed by, or render any services to,
any person, firm or corporation engaged in the medical device industry (or any other business) which is directly in competition with
any “material” business conducted or proposed to be conducted by the Company or any of its subsidiaries at the time of termination
(“Competitive Business”); (ii) engage in any Competitive Business for his own account; (iii) be associated with or interested
in any Competitive Business as an individual, partner, shareholder, creditor, director, officer, principal, agent, employee, trustee,
consultant, advisor or in any other relationship or capacity; (iv) employ or retain, or have or cause any other person or entity to employ
or retain, any person who was employed or retained by the Company while Executive was employed by the Company; or (v) solicit, interfere
with, or endeavor to entice away from the Company, for the benefit of a Competitive Business, any of its customers or other persons with
whom the Company has a contractual relationship. Notwithstanding the foregoing, nothing in this Agreement shall preclude Executive from
investing his personal assets in any manner he chooses, provided, however, that Executive may not, during the period referred to in this
Section 5.4, own more than 4.9% of the equity securities of any Competitive Business.
5.5 Injunctive
Relief. If Executive commits a breach, or threatens to commit a breach, of any of the provisions of Sections 5.2 or 5.4, the Company
shall have the right and remedy to seek to have the provisions of this Agreement specifically enforced by any court having equity jurisdiction,
it being acknowledged and agreed by Executive that the services being rendered hereunder to the Company are of a special, unique and
extraordinary character and that any such breach or threatened breach will cause irreparable injury to the Company and that money damages
will not provide an adequate remedy to the Company. The rights and remedies enumerated in this Section 5.5 shall be in addition to, and
not in lieu of, any other rights and remedies available to the Company under law or equity. In connection with any legal action or proceeding
arising out of or relating to this Agreement, the prevailing party in such action or proceeding shall be entitled to be reimbursed by
the other party for the reasonable attorneys’ fees and costs incurred by the prevailing party.
5.6 Modification.
If any provision of Sections 5.2 or 5.4 is held to be unenforceable because of the scope, duration or area of its applicability, the
tribunal making such determination shall have the power to modify such scope, duration, or area, or all of them, and such provision or
provisions shall then be applicable in such modified form.
5.7 Survival.
The provisions of this Section 5 shall survive the termination of employment under this Agreement for any reason.
6. Miscellaneous
Provisions.
6.1 Notices.
All notices provided for in this Agreement shall be in writing, and shall be deemed to have been duly given when (i) delivered personally
to the party to receive the same, or (ii) when mailed first class postage prepaid, by certified mail, return receipt requested, addressed
to the party to receive the same at his or its address set forth below, or such other address as the party to receive the same shall
have specified by written notice given in the manner provided for in this Section 6.1, or sent via email or facsimile.
If
to Executive, to his address as set forth in the Company’s books and records.
If
to the Company:
PAVmed
Inc.
One
Grand Central Place, Suite 4600
New
York, New York 10165
Attn:
Lishan Aklog, M.D.
Email:
la@pavmed.com
With
a copy in either case to:
Friedman
Kaplan Seiler and Adelman LLP
7
Times Square
New
York, NY 10036-6516
Attn:
Michael Gordon
Email:
mgordon@fklaw.com
6.2 Entire
Agreement; Waiver. This Agreement, the Option and the separate indemnification agreement being entered simultaneously herewith sets
forth the entire agreement of the parties relating to the employment of Executive and is intended to supersede all prior negotiations,
understandings and agreements. No provisions of this Agreement may be waived or changed except by a writing by the party against whom
such waiver or change is sought to be enforced. The failure of any party to require performance of any provision hereof or thereof shall
in no manner affect the right at a later time to enforce such provision.
6.3 Governing
Law. All questions with respect to the construction of this Agreement, and the rights and obligations of the parties hereunder, shall
be determined in accordance with the law of the State of New York applicable to agreements made and to be performed entirely in New York.
6.4 Binding
Effect; Nonassignability. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of the Company.
This Agreement shall not be assignable by Executive, but shall inure to the benefit of and be binding upon Executive’s heirs and
legal representatives.
6.5 Severability.
Should any provision of this Agreement become legally unenforceable, no other provision of this Agreement shall be affected, and this
Agreement shall continue as if the Agreement had been executed absent the unenforceable provision.
6.6 Section
409A. This Agreement is intended to comply with the provisions of Section 409A of the Internal Revenue Code (“Section 409A”).
To the extent that any payments and/or benefits provided hereunder are not considered compliant with Section 409A, the parties agree
that the Company shall take all actions necessary to make such payments and/or benefits become compliant.
6.7 Preparation
of Agreement. This Agreement has been prepared by Friedman Kaplan Seiler & Adelman LLP (“Friedman Kaplan”) solely
as counsel to the Company. Friedman Kaplan is not acting as legal counsel nor providing any legal representation or consultative services
to Executive in connection with the Agreement and the Company has advised Executive to seek the advice of other counsel in connection
with the negotiation and preparation of this Agreement.
7. Arbitration;
Expenses. In the event of any dispute under the provisions of this Agreement, other than a dispute in which the primary relief sought
is an equitable remedy such as an injunction, the parties shall be required to have the dispute, controversy or claim settled by arbitration
in the non-moving parties jurisdiction in accordance with the Employment Arbitration Rules and Mediation Procedures then in effect of
the American Arbitration Association, before an arbitrator agreed to by both parties. If the parties cannot agree upon the choice of
arbitrator, the Company and the Executive will each choose an arbitrator. The two arbitrators will then select a third arbitrator who
will serve as the actual arbitrator for the dispute, controversy or claim. Any award entered by the arbitrator shall be final, binding
and nonappealable and judgment may be entered thereon by either party in accordance with applicable law in any court of competent jurisdiction.
This arbitration provision shall be specifically enforceable. The arbitrator shall have no authority to modify any provision of this
Agreement or to award a remedy for a dispute involving this Agreement other than a benefit specifically provided under or by virtue of
the Agreement. Each party shall be responsible for its own expenses relating to the conduct of the arbitration (including reasonable
attorneys’ fees and expenses) and shall share the fees of the American Arbitration Association.
8. Attorneys’
Fees. Except as provided in Section 7 above, in any action at law or in equity to enforce or construe any provisions or rights under
this Agreement, the unsuccessful party or parties to such litigation, as determined by the courts pursuant to a final judgment or decree,
shall pay the successful party or parties all costs, expenses, and reasonable attorneys’ fees incurred by such successful party
or parties (including, without limitation, such costs, expenses, and fees on any appeals), and if such successful party or parties shall
recover judgment in any such action or proceedings, such costs, expenses, and attorneys’ fees shall be included as part of such
judgment.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the parties have executed this Agreement on the date first above written.
| |
PAVMED
INC. |
| |
|
|
| |
By: |
/s/
Lishan Aklog |
| |
Name: |
Lishan
Aklog, M.D. |
| |
Title: |
Chairman
and CEO |
| |
By: |
/s/
Shaun O’Neil |
| |
Name: |
Shaun
O’Neil |
Schedule
1.2. Schedule of Consultancy, Advisory, or Board of Directors
None.
NEW YORK, February 24, 2022 (GLOBE NEWSWIRE) — PAVmed Inc. (Nasdaq: PAVM, PAVMZ)
(the “Company” or “PAVmed”), a diversified commercial-stage medical technology company and parent of cancer prevention
company Lucid Diagnostics Inc. (Nasdaq: LUCD) (“Lucid”), today announced the appointment of Shaun O’Neil
to serve as Executive Vice President and Chief Operating Officer, overseeing diverse corporate operations and commercial activities across
the Company and its subsidiaries. Mr. O’Neil has served as PAVmed’s Chief Commercial Officer and Executive Vice President,
Business Development since joining the Company in 2018. He will serve on the Company’s Executive Committee and as an executive officer
pursuant to Section 16(a) of the Securities Exchange Act of 1934.