Exhibit
10.15


 


EMPLOYMENT
AGREEMENT


 


THIS
AGREEMENT, dated as of August 21, 2009, between Innocoll Holdings, Inc., a Delaware corporation or its assignee (the “Company”),
and James Croke, a resident of Ireland (the “Employee”).


 


Background


 


A.          The
Company wishes to employ the Employee and the Employee wishes to be employed by the Company,
subject to the terms and conditions set forth in this Agreement; and


 


B.           The
parties acknowledge that this Agreement is intended to set forth the parties entire agreement with respect to the Company’s
employment of Employee.


 


Agreements


 


NOW,
THEREFORE, in consideration of the mutual benefits to be derived from this Agreement, and intending to be legally bound, the Company
and the Employee hereby agree as follows:


 


		1.	Definitions.
                                         As used in this Agreement, the following terms shall have the meanings as set forth
                                         below:



 


		1.1	“Affiliate”
                                         of any Person means any Person directly or indirectly controlling, controlled
                                         by or under common control with such Person including without limitation any direct or
                                         indirect Subsidiary of such Person.



 


		1.2	“Code” means the Internal
                                         Revenue Code of 1986, as amended.



 


		1.3	“Company’s
                                         Business” means:



 


		(a)	the
                                         business of development and commercialization of products based on the Company’s
                                         proprietary collagen based drug delivery technologies, including without limitation proprietary
                                         collagen products that are administered by implantation, topically, bucally, orally or
                                         intra-ocularly; and



 


		(b)	such
                                         other business or enterprise conducted by the Company during the Term of this Agreement;
                                         and



 


		(c)	any
                                         other business or enterprise conducted by any Affiliate of Company during the Term of
                                         this Agreement in which Employee has been involved while an employee of Company or any
                                         such Affiliate.



 


		1.4	“Confidential
                                         Matters” includes all technical, commercial and business or other data and information
                                         (including new product plans, invoices,



 




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			customer
                                         correspondence, computer records or mailing, telephone or customer of lists) of Company
                                         or its Affiliates, and tangible and intangible property of Company or its Affiliates
                                         (including intellectual property of Company or its Affiliates
                                         or its licensors) related to the products or business of Company or its Affiliates, including
                                         but not limited to trade secrets, designs, devices, inventions, improvements, ideas,
                                         strategies, concepts, discoveries, techniques, processes, methods of operation, sales
                                         and profit figures, know-how, expressions of ideas and systems, software, firmware, microcode,
                                         source code and object code, routines, subroutines, and algorithms, structure, sequence
                                         and organization of computer programs, specifications, and other related data, whether
                                         or not patentable.



 


		1.5	“Effective
                                         Date” means August 21, 2009.



 


		1.6	“Exit Date” means the
                                         date on which Employee ceases, for any reason whatsoever, to be employed by Company or
                                         any of its Affiliates.



 


		1.7	“Inventions” includes
                                         inventions, discoveries, ideas, techniques, methods, developments, improvements, modifications,
                                         and all other forms of intellectual property, whether or not patentable.



 


		1.8	“Person” means an individual,
                                         a company, a corporation, a partnership, an association, a trust or other entity or organization.



 


		1.9	“Restrictive Period”
                                         means the period of time equal to the Term of this Agreement plus the one (1) year period
                                         immediately following the Exit Date.



 


		1.10	“Restricted Territory”
                                         shall mean everywhere in the world.



 


		1.11	“Separation” shall mean
                                         a “separation from service,” as defined in the regulations under Section
                                         409A of the Code.



 


		1.12	“Subsidiary” means any
                                         corporation of which Company owns or controls directly, or indirectly through one or
                                         more Affiliates or other Subsidiaries, more than fifty percent
                                         (50%) of the combined voting power of all of the issued and outstanding shares of capital
                                         stock of such corporation and includes, without limitation, Syntacoll (Pty) Ltd. (a South
                                         African corporation), Syntacoll, A.G. (a Swiss corporation), and Innocoll GmbH (a German
                                         corporation).



 


		1.13	“Term”
                                         or “Term of this Agreement” means the period commencing as of the Effective
                                         Date and continuing until the Exit Date.



 


		2.	No
                                         Prior Agreement. Employee acknowledges that this Agreement is intended to set forth
                                         the parties’ entire understanding
                                         and agreement regarding Employee’s employment with Company or its Affiliates. Additionally,
                                         Employee represents to Company, and covenants and agrees, that he/she is not currently
                                         subject to, and



 




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			shall not during the Term of this
                                         Agreement become subject to, any employment agreement, confidentiality agreement, non-competition
                                         agreement, non-disclosure agreement or any other agreement, covenant, understanding or
                                         restriction which would prohibit Employee from fully observing and performing his duties
                                         and responsibilities to Company or would otherwise in any manner, directly or indirectly,
                                         limit or affect (i) the duties and responsibilities which may now or in the future be
                                         assigned to Employee by Company, or (ii) otherwise prevent Employee from performing in
                                         accordance with the terms and conditions set forth in this Agreement.



 


		3.	Employment.
                                         During the Term of
                                         this Agreement and subject to Company’s right to assign the Agreement as described
                                         in Section 13 below, Company employs Employee and Employee accepts such employment in
                                         accordance with the terms and conditions of this Agreement including without limitation:



 


		3.1	Employee
                                         shall serve as Executive Vice President Engineering and Technology Development
                                         of the Company and shall perform
                                         all reasonable duties and accept all reasonable responsibilities assigned to him by the
                                         President and Chief Executive Officer of the Company. During the Term, Employee shall
                                         devote all of his normal
                                         business time and attention to the business of the Company. Employee hereby accepts this
                                         employment and will render services as required by the Company conscientiously, loyally,
                                         competently and to the best of Employee’s talents throughout the Term



 


		3.2	Employee’s
                                         place of performance will be from the company’s facilities in Ireland and at such
                                         other locations as may be necessary to fulfill his job responsibilities under this Agreement
                                         or as may be assigned by the President and Chief Executive Officer of the Company. Employee
                                         acknowledges and agrees to travel from time to time as required to perform his duties
                                         and responsibilities under this Agreement to or on behalf of the Company or any of its
                                         Affiliates.



 


		3.3	For
                                         all services rendered by Employee, Company shall pay Employee an initial annual base
                                         compensation (“Base Salary”) in the amount of one hundred and eighty thousand
                                         Euros (€180,000), less any withholding required by law or agreed to by Employee,
                                         payable in installments at such time as Company customarily pays its other employees.
                                         Employee’s Base Salary will be reviewed annually by the President and Chief Executive
                                         Officer to determine if an increase is appropriate. Such increase, if any, shall be in
                                         the sole discretion of the President and Chief Executive Officer. Should the Company,
                                         in its discretion, increase Employee’s salary, any such increase shall be stated
                                         in writing.



 


		3.4	Company
                                         shall provide Employee with such retirement, profit sharing, group insurance (including
                                         without limitation life, health, and disability insurance), and other fringe benefits
                                         (“Benefits”) as Company in its sole 



 




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			discretion
                                         provides from time to time for other employees of Company generally.



 


		3.5	Employee
                                         shall be entitled to twenty-five (25) days paid vacation annually. Vacation shall be
                                         taken at a time or times mutually agreeable to the Employee and the Company consistent
                                         with the Employee’s duties and obligations under this Agreement.
                                         Pay will not be provided
                                         in lieu of vacation and unused vacation time may not be carried over from one year to
                                         the next. Employee will also be entitled to sick days and holidays consistent with other
                                         similarly situated employees.



 


		3.6	Annually
                                         throughout the employment relationship, the Board of Directors of the Company (the “Board”)
                                         shall establish annual corporate goals and objectives (“Annual Corporate Goals”)
                                         and annual individual goals and objectives (“Annual Individual Goals”) applicable
                                         to Employee for the then current calendar year which shall be embodied in resolutions
                                         duly adopted by the Board. In the event that Company shall fully achieve all of the Annual
                                         Corporate Goals and Employee shall fully achieve all of his Annual Individual Goals applicable
                                         to any calendar year, Employee shall be entitled to a performance bonus (“Performance
                                         Bonus”) in an amount determined by the Board, provided however that in no event
                                         shall the Performance Bonus be less than twenty percent (20%) nor more than fifty percent
                                         (50%) of Employee’s Base Salary applicable as of December 31 of such calendar year
                                         (prorated for calendar year 2009 based on the Effective Date). Such Performance Bonus
                                         shall be payable in such manner, including cash, Company common stock or a combination
                                         of cash and Company common stock, and at such time, as the Board shall determine in its
                                         sole discretion, provided that such payment shall be made no later than two and one-half
                                         months following the end of the year in which the amount of Performance Bonus is determined.



 


		3.7	Promptly
                                         following the Effective Date and subject to the formal approval of the Board, Employee
                                         shall be granted the right to purchase shares of common stock of the Company representing
                                         one percent (1.0%) of the issued and outstanding
                                         common stock of the Company on a fully diluted basis under the terms of the Company’s
                                         2004 Equity Compensation Plan. The Company will offer Employee a loan of sufficient funds
                                         to purchase this stock.



 


		4.	No
                                         Solicitation/Hire. At any time during the Term of this Agreement or during the one
                                         (1) year period immediately following the Exit Date, Employee shall not, either directly
                                         or indirectly, employ or solicit the employment (the “Employment/Solicitation”)
                                         of any Person, or engage or solicit the engagement as a consultant of any Person, who
                                         is at the time of the Employment/Solicitation then currently employed by, or providing
                                         consulting services to, the Company or any of its Affiliates on a full or part-time basis.



 




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		5.	Covenant-Not-To-Compete.
                                           During the Restrictive Period, Employee shall not, and shall not encourage or permit
                                         any of his Affiliates, or any other Person, directly or indirectly, to:



 


		5.1	engage
                                         in competition with, or acquire a direct or indirect interest or an option to acquire
                                         such an interest in any Person engaged in competition with, Company’s Business
                                         anywhere in the Restricted Territory (other than an interest of not more than five percent
                                         (5%) of the outstanding stock of any publicly traded
                                         company);



 


		5.2	serve
                                         as a director, officer, employee, consultant, agent or representative of, or furnish
                                         information to, or otherwise facilitate in any way (including but not limited to providing
                                         financial support) the efforts of, any Person engaged in competition with Company’s
                                         Business anywhere in the Restricted Territory.



 


		5.3	for
                                         any business or commercial purpose that competes with Company’s Business, approach,
                                         solicit or deal with any Person who at any time during the Term of this Agreement is
                                         or was:



 


		(a)	a
                                         customer, client, supplier, agent or distributor of Company or any Affiliate; or



 


		(b)	a
                                         Person with whom Employee had regular, substantial or a series of business dealings on
                                         behalf of Company or any Affiliate (whether or not a customer, client, supplier, agent
                                         or distributor of Company or any Affiliate).



 


			The Restrictive Period shall be automatically
                                         extended for any period of time during which the Employee has breached, or threatened
                                         to breach, any provisions of this Section 5. Employee acknowledges that Company and its
                                         Affiliates are conducting business in the Restricted Territory and therefore the geographic
                                         scope of the covenants set forth in this Section 5 is reasonable and necessary to protect
                                         the interests of Company.



 


		6.	Benefits
                                         Payable Upon Termination of Employment.



 


		6.1	Upon
                                         a Separation caused by the termination of Employee’s employment by Company, other
                                         than by reason of any of the events set forth in Section 6.2 below,
                                         Employee shall be entitled to the following:



 


		(a)	Compensation.
                                         Employee shall be entitled to Base Salary payable in bi-weekly installments, every
                                         other Friday and in such amounts as were in effect on the date of termination of Employee’s
                                         employment. Payments of such Base Salary shall commence not later than sixty (60) days
                                         after the Exit Date. Once such payments commence, they shall be retroactive to the Exit
                                         Date. Such payments shall continue until the earlier of (i) the date six (6) 



 




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			months after the Exit Date or (ii)
                                         the date when Employee becomes employed on a full-time basis.



 


		(b)	Employee
                                         Benefits. Employee shall be entitled to a continuation of all medical, dental
                                         and life insurance benefits in the same manner and amount to which Employee was entitled
                                         on the date of termination of Employee’s employment until the earlier of (i) six
                                         (6) months after termination of Employee’s employment by Company or its Affiliates,
                                         or (ii) Employee’s eligibility for medical benefits with any new employer or other
                                         Person.



 


			To be eligible for any of the payments
                                         under this Section 6.1, Employee must (i) execute and deliver to Company a general release,
                                         in the form acceptable to the Company, within forty five (45) days after the Exit Date,
                                         and (ii) as determined by the Company, must be and remain in compliance in all material
                                         respects with his material obligations under this Agreement, including without limitation
                                         those set forth in Sections 4, 5 and 8. In the event the Company determines that Employee
                                         has materially breached his material obligations hereunder, including those set forth
                                         in Sections 4, 5 and 8, any and all payments or benefits provided for in Section 6.1
                                         shall cease immediately.



 


		6.2	Employee
                                         shall not be entitled to any compensation or Benefits of any nature, including without
                                         limitation those referred in Section 6.1 of this Agreement, other than unpaid Base Salary
                                         and Benefits accrued to the Exit Date, in the event that the employment relationship
                                         between Company and Employee ends by reason of: death; Employee’s inability with
                                         reasonable accommodation to perform fully his duties and responsibilities to Company
                                         to the full extent required by the Board by reason of illness, injury or incapacity for
                                         ninety (90) days in the aggregate during any period of twelve (12) consecutive calendar
                                         months, during which time Company shall continue to compensate Employee, subject to the
                                         provisions of Section 10, below; Employee’s conviction of any misdemeanor or felony
                                         pertaining to or involving dishonesty, harassment or violence; Employee’s willful
                                         misconduct; Employee’s refusal to implement or observe any directive of the President
                                         and Chief Executive Officer or the Board; Employee’s breach, violation or default
                                         of any of the representations, duties or obligations imposed upon Employee pursuant to
                                         this Agreement and the failure to cure the same as permitted by this Agreement; Employee’s
                                         failure to fully perform such performance standards as shall be determined from time
                                         to time by the Board; or a good faith determination by the Board or Company’s outside
                                         accountants that Company is insolvent using the balance sheet test or is unable to pay
                                         its debts as they mature.



 


		6.3	Except
                                         as otherwise specifically provided in this Agreement or required by applicable law, upon
                                         termination of the employment relationship between Company and Employee, all duties and
                                         obligations of Company
                                         to



 




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			Employee and all rights, remedies, compensation,
                                         Benefits, privileges, grants and options of Employee shall cease and terminate as of
                                         the Exit Date.



 


		6.4	For
                                         purposes of Section 409A of the Code, each periodic salary continuation payment under
                                         Section 6.1(a) is hereby designated as a separate payment. If Company determines that
                                         Employee is a “specified employee” under Section 409A(a)(2)(B)(i) of the
                                         Code and the regulations thereunder at the time of his Separation, then (a) the salary
                                         continuation payments under Section 6.1(a), to the extent not exempt from Section 409A
                                         of the Code, shall commence
                                         during the seventh month after Employee’s Separation and (b) the installments that
                                         otherwise would have been paid during the first six months following Employee’s
                                         Separation shall be paid in a lump sum when such salary continuation payments commence.



 


		7.	Inventions;
                                         Company Property.



 


		7.1	All
                                         rights in Inventions which Employee conceives, makes or obtains either alone or with
                                         others during his employment by Company or its Affiliates (both before and after the
                                         Effective Date of this Agreement) and within six months after his employment ends, are
                                         and shall be the property of Company except as set forth in Section 7.2 hereof.



 


		7.2	This
                                         Agreement does not apply to Inventions that Company determines in its sole discretion
                                         to be unrelated to any matter of actual or potential interest to Company unless they
                                         are conceived, made or obtained in the course of his employment or with the use of the
                                         time, material or facilities of Company.



 


		7.3	Employee
                                         shall make full and prompt disclosure to Company of all Inventions that are defined by
                                         this Section 7 to be Company’s property. At Company’s request and expense
                                         (but without additional compensation to Employee), Employee shall at any time take such
                                         actions as Company reasonably considers necessary to obtain or preserve
                                         Company’s rights in such Inventions. These actions may include, but are
                                         not necessarily limited to, signing and delivering applications, assignments and other
                                         papers and testifying in legal proceedings.



 


		8.	Confidential
                                         Information. Employee shall not, during or after his employment with Company or any
                                         of its Affiliates, use for himself or others, or disclose to others, any formulae, trade
                                         secrets, customer lists, know-how, Inventions which are Company’s property, or
                                         other Confidential Matters of Company or its Affiliates unless authorized in writing
                                         to do so by Company or its Affiliates. Employee understands that these matters are kept
                                         confidential and secret by Company, would be of great value to competitors, and would
                                         irreparably harm Company if known to competitors.



 




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		9.	Remedies.
                                         Upon any breach, violation or default by either party to this Agreement (“Defaulting
                                         Party”) of any of the representations, duties or obligations imposed upon such
                                         Defaulting Party pursuant to this Agreement, and the failure of such Defaulting Party
                                         to cure such breach, violation or default within ten (10) days of the date of the giving
                                         of notice by the other party to this Agreement (“Non-Defaulting Party”),
                                         the Non-Defaulting Party shall have all rights and remedies which are contained in this
                                         Agreement and all other rights and remedies which are at law, in equity or by statute
                                         permitted or provided, all such rights and remedies to be cumulative and concurrent.



 


		10.	Disability
                                         Payments. In the event that Company shall obtain or procure any disability or similar
                                         insurance which makes payments to Employee (“Disability Payments”) on account
                                         of Employee being unable to perform his duties and obligations to Company by reason of
                                         illness, injury or incapacity, the aggregate amount of such Disability Payments shall
                                         constitute a credit on a Euro for Euro basis against all amounts, including without limitation
                                         Base Salary, owing by Company to Employee and shall decrease on a Euro for Euro basis
                                         such amounts owing by Company, and Company shall be released to such extent.



 


		11.	Papers.
                                         All correspondence, memoranda, notes, records, reports, drawings, lists, photographs,
                                         plans and other papers and items received or made by Employee in connection with his
                                         employment by Company shall be the property of Company. Employee shall deliver all such
                                         materials, all copies thereof in whatever form stored, and all other Company property
                                         to Company upon request of Company, and in any event upon cessation of his employment
                                         with the Company for any reason, even if Company does not request.



 


		12.	Enforcement.
                                         Employee acknowledges the restrictions contained in this Agreement are, in view of
                                         the nature of the business of Company, reasonable and necessary to protect the legitimate
                                         interests of the Company, and that any breach, violation or default by Employee of any
                                         of such restrictions, including the representations, covenants, duties or obligations
                                         imposed upon Employee pursuant to this Agreement, shall cause Company immediate and irreparable
                                         harm for which Company’s remedies at law (such as money damages) will be inadequate.
                                         Company shall have the right, in addition to any other rights it may have, to obtain
                                         injunctive relief, including a temporary restraining order and a preliminary and permanent
                                         injunction, to restrain any breach or threatened breach of this Agreement, without the
                                         necessity of proving actual damages, and the right to an equitable accounting of all
                                         earnings, profits and other benefits arising from any such breach, which rights shall
                                         be cumulative and in addition to any other rights or remedies to which the Company may
                                         be entitled. Employee agrees that in the event of any such breach, an action may be commenced
                                         for any such temporary restraining order, preliminary or permanent injunction and other
                                         equitable relief in any court of competent jurisdiction sitting in Ireland or in any
                                         other court of competent jurisdiction. Employee hereby waives, to the fullest extent
                                         permitted by law, any objection that Employee may now
                                         or hereafter have to such jurisdiction or to the laying of the venue of any such suit,
                                         action or 



 




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			proceeding brought in such court and
                                         any claim that such suit, action or proceeding has been brought in an inconvenient forum.
                                         Employee agrees that effective service of process may be made upon Employee by mail under
                                         the notice provisions of Section 14 of this Agreement. Should any provision of this Agreement
                                         be adjudged to any extent invalid by any competent tribunal, that provision shall be
                                         deemed modified to the extent necessary to make it enforceable. Company may contact any
                                         Person with or for whom Employee works after his employment by Company ends for the purpose
                                         of enforcing the Covenant-Not-To-Compete and may send that Person a copy of this Agreement.



 


		13.	Binding
                                         Effect; Assignment. Employee’s undertakings hereunder shall bind his and his
                                         heirs and legal representatives regardless of (a) the duration of his employment by Company,
                                         (b) any change in his duties or the nature of his employment, (c) the reasons for or
                                         manner of termination of his employment, and (d) the
                                         amount of his compensation. The duties and responsibilities of Employee to Company are
                                         of a personal nature and shall not be assignable or delegatable in whole or in part by
                                         Employee. Company shall have the absolute right to assign all or any part of this Agreement
                                         without the consent of Employee. In the event of any assignment by Company of this Agreement,
                                         Company’s assignee shall have the right to enforce each of the provisions of this
                                         Agreement, including without limitation Sections 4, 5, 7, 8, 9 and 12 of this Agreement
                                         and in such event, as used in this Agreement, “Company” shall include without
                                         limitation any assignee or other successor to its business or assets.



 


		14.	Notices.  All
notices, requests, demands and other communications in connection with this Agreement shall be in writing and shall be personally
delivered or sent by expedited overnight courier as follows:



 


If
to the Company:


 


Innocoll
Holdings, Inc.


42662
Kitchen Prim Ct.


Ashburn,
VA 20148


Attention:
Michael Myers, President and Chief Executive Officer


 


With
a copy to:


 


White
and Williams LLP


1650
Market Street


One
Liberty Place, Suite 1800


Philadelphia,
PA 19103


Attention:
Michael J. Mentzel, Esq.


 




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If
to Employee:


 


James
Croke


Cuan
Dor


Stradbelly
North


Clarinbridge


County
Galway


Ireland


 


and/or
to such other persons and addresses as any party shall have specified in writing to the other.


 


		15.	Miscellaneous. This Agreement
                                         (a) establishes an at will employment relationship between Company and Employee and shall
                                         in no way bind Employee or Company to a specific term of employment, (b) supersedes all
                                         prior understandings, discussions, negotiations, correspondence and other writings and
                                         constitutes the entire understanding between Company and Employee about the subject matter
                                         covered by this Agreement, (c) may be modified or varied only by mutual agreement in
                                         writing signed by Company and Employee, (d) shall survive the termination of the employment
                                         relationship between Company and Employee to the extent necessary to effect the intended
                                         preservation of the parties post termination rights and obligations, and (e) will be
                                         governed by laws of Ireland without giving effect to any conflict of laws provisions.



 


IN
WITNESS WHEREOF, the parties to this Agreement have executed this Agreement as of the day and
year first written above.


 


	 	INNOCOLL
    HOLDINGS, INC.
	 	 	 
	 	By:	/s/
    Michael Myers
	 	 	Michael Myers
	 	 	President and Chief
    Executive Officer 
	 	 
	 	EMPLOYEE:
    
	 	 
	 	/s/
    James Croke
	 	James
    Croke


 




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