Exhibit 10.14


 


EXECUTION VERSION


 


AMENDED AND RESTATED EMPLOYMENT AGREEMENT


 


AMENDED
AND RESTATED EMPLOYMENT AGREEMENT by and between Ikaria Holdings, Inc., a
Delaware corporation (the “Company”), and James Briggs (the “Executive”),
dated as of the 1st day of June, 2009 (this “Agreement”).


 


WHEREAS,
the Executive possesses skills, experience and knowledge that are of value to
the Company;


 


WHEREAS,
the Company desires to continue to employ the Executive as its Senior Vice
President, Human Resources, and the Executive is willing to continue such
employment, in each case on the terms and conditions set forth herein; and


 


WHEREAS,
the Executive and the Company previously entered into an Employment Agreement
dated as of August 11th, 2008 (the “Original Agreement”) and now
wish to amend and restate the Original Agreement in its entirety as set forth
in this Agreement.


 


NOW,
THEREFORE, in consideration of the promises and mutual covenants herein
contained, the parties hereto agree as follows:


 


1.             Employment
Period.  The Company shall employ the
Executive, and the Executive shall serve the Company, on the terms and
conditions set forth in this Agreement, for the period commencing on June 1,
2009 (the “Effective Date”), and ending on May 31, 2010 (the “Initial
Term”); provided, however, that commencing on May 31,
2010 and each annual anniversary of such date (May 31, 2010, and each
annual anniversary thereof, shall hereinafter be referred to as the “Renewal
Date”), unless previously terminated, the Term shall be automatically
extended so as to terminate one year from the applicable Renewal Date (each
such one year renewal, a “Renewal Term,” and the Initial Term together
with all Renewal Terms(s), the “Term”), unless at least ninety (90) days
prior to such Renewal Date the Company or the Executive shall give written
notice to the other party that the Term shall not be so extended; provided,
further, however that if a “Sale Transaction” (as defined in the Company’s
Senior Executive Bonus Pool Program) occurs during the Term and prior to June 1,
2010, and the Term is scheduled to expire prior to the day that is seven (7) months
following the closing of Sale Transaction (the “Sale Extension Date”) as
a result of a notice by the Company that the Term shall not be extended, the
Term, notwithstanding such notice, shall be extended until the Sale Extension
Date.  The Executive’s period of
employment pursuant to this Agreement shall hereinafter be referred to as the “Employment
Period.”


 


2.             Position and
Duties.


 


(a)           During the Employment
Period, the Executive shall serve as Senior Vice President, Human Resources, of
the Company, with such duties and responsibilities as are customarily assigned
to such position, and such other duties and responsibilities not inconsistent therewith
as may be assigned to the Executive from time to lime by the Company.  In such capacity, the Executive shall report
to the Company’s Chief Executive Officer.


 


(b)           During the
Employment Period, and excluding any periods of vacation and sick leave to
which the Executive is entitled, the Executive shall devote his full business


 

















 


time
and efforts to the business and affairs of the Company and use his best efforts
to carry out such responsibilities faithfully and efficiently.  During the Employment Period, the Executive
shall not be engaged in any other business activity without the prior written
consent of the Company except for time spent in managing his personal,
financial and legal affairs, in each case only if, and to the extent that, such
activities do not interfere with the performance of the Executive’s duties and
responsibilities hereunder or otherwise result in a breach of this Agreement.


 


(c)           The Executive’s
services hereunder shall be performed at the Company’s headquarters, subject to
such business travel as may be required from time to time.


 


3.             Compensation.


 


(a)           Base Salary.  During the Employment Period, the Executive
shall receive a base salary (such base salary, as it may be increased from time
to time hereunder, the “Annual Base Salary”) at the annual rate of
$250,000.00.  The Annual Base Salary
shall be payable in accordance with the Company’s payroll practices as in
effect from time to time, subject to applicable taxes and withholding.  During the Employment Period, the Annual Base
Salary shall be reviewed for possible merit increases at least annually but
shall not be reduced during the Employment Period.


 


(b)           Annual Bonus.  For each calendar year ending during the
Employment Period, the Executive shall be eligible to earn an annual cash bonus
payable in accordance with the terms of the Company’s management incentive
program at a target of 50% of Annual Base Salary, or such higher level
established by the Company from time to time (the “Annual Bonus”).


 


(c)           Benefits.  During the Employment Period, the Executive
and/or the Executive’s family, as the case may be, shall be provided with such
employee benefits, and under the same terms, as are provided by the Company
from time to time to its executives.  The
Company reserves the right to modify or terminate its benefits plans generally
for employees.


 


(d)           Vacation.  During each year of the Employment Period,
the Executive shall be entitled to paid vacation consistent with the Company’s
practices, policies and programs for its senior executives; provided
that the Executive shall be entitled to no less than four (4) weeks of
paid vacation during each year of the Employment Period.


 


(e)           Business and
Entertainment Expenses. 
During the Employment Period, the Executive shall be entitled to receive
prompt reimbursement for all reasonable expenses, incurred by the Executive in
carrying out the Executive’s duties under this Agreement; provided that
the Executive complies with the policies, practices and procedures of the
Company for submission of expense reports, receipts, or similar documentation
of such expenses.


 


4.             Termination of
Employment.


 


(a)           Death or
Disability.  The
Executive’s employment hereunder shall terminate automatically upon the
Executive’s death during the Term.  The
Company shall, to the full extent permitted by law, be entitled to terminate
the Executive’s employment because of the


 

















 


Executive’s
“Disability” (as herein defined) during the Term.  “Disability” means the permanent
disability of the Executive in accordance with the long-term disability plan of
the Company applicable to the Executive.


 


(b)           By the Company.  The Company may terminate the Executive’s
employment hereunder during the Term for Cause or without Cause.  For purposes of this Agreement, the term “Cause”
shall be defined as: (A) disloyalty or dishonesty which results or is
intended to result in material personal enrichment to Executive at the material
expense of the Company or any of its subsidiaries (including, without
limitation, fraud, embezzlement or dishonesty or breach of business ethics); (B) fraudulent
conduct in connection with the material business or affairs of the Company or
any of its subsidiaries that materially and adversely affects the Company or
any of its subsidiaries; (C) conviction of a felony or any crime involving
moral turpitude (or entering into a plea of nolo contendere with respect to
such crime); (D) gross misconduct that materially and adversely affects
the Company; (E) any breach or intended breach of any Company policies or
procedures as in effect from time to time, in each case constituting a material
violation of such policies or procedures, and in each case causing material
harm to the Company; or (F) failure by the Executive to provide thirty
(30) days advance written notice of resignation; provided that in the
case of subsection (E) of this Section 4(b), the Company shall give
written notice to the Executive at least ten (10) days prior to such
termination (“Notice of Termination for Cause”) of the Company’s intent
to terminate, which notice shall set out in detail the ways in which Executive
has materially breached or expressed an intent to breach materially a Company
policy or procedure in such a way as to cause the Company material harm, and
Executive shall have failed to cure such breach prior to the expiration of ten (10) days
following the date on which such notice is provided to him; and provided
further that with respect to the Executive’s violation of Subsection (E) of
this Section 4(b), the Executive shall have only one opportunity to cure
such failure and thereafter may be terminated immediately in connection with
subsequent violations of Subsection (E) of this Section 4(b).


 


(c)           By the
Executive for Good Reason.  The
Executive may terminate the Executive’s employment hereunder during the Term
for Good Reason or other than for Good Reason. 
For purposes of this Agreement, “Good Reason” means that the
Company has engaged in any of the following without the Executive’s consent:


 


A.            any material
and adverse change in the Executive’s position, title or status, any change in
the Executive’s job duties, authority or responsibilities to those of lesser
status, or any obligation that the Executive report other than to the Chief
Executive Officer of the Company;


 


B.            any material
and adverse breach of this Agreement by the Company; provided, that any failure
of a successor to assume and agree to perform under this Agreement required by Section 7(c) shall
be deemed to be a material and adverse breach of this Agreement by the Company;


 


C.            relocation of
the Company’s headquarters more than fifty (50) miles from its present location
or transfer of Executive to any location more than fifty (50) miles from the
location of the current headquarters; or


 

















 


D.            any material
and adverse change in the Executive’s compensation or benefits;


 


provided, that,
following a Change in Control, any change (in the case of clauses (A) and
(D)) and any breach (in the case of clause (B)), in each case whether or not
material and adverse, shall constitute Good Reason hereunder and (in the case
of clause (A)) a change shall be deemed to have occurred if, following a Change
in Control in which the Company becomes controlled by another entity (a “Parent
Company”) (i) the Executive’s position, title, status, job duties,
authority or responsibilities with the Parent Company are not equivalent to his
position, title, status, job duties, authority and responsibilities with the
Company immediately prior to the Change in Control and/or (ii) the
Executive is obligated to report other than to the Chief Executive Officer of
the Company.  For purposes of this
Agreement, a “Change in Control” shall have occurred if, after the
Effective Date, (A) any “Person” (as the term person is used for purposes
of Section 13(d) or 14(d) of the Securities Exchange Act of
1934, as amended (the “Exchange Act”)) (other than any Person that
includes New Mountain Partners II, L.P., New Mountain Affiliated Investors II,
L.P. or Allegheny New Mountain Partners, L.P. or any of their affiliates (an “Excluded
Person”)), is the “Beneficial Owner” (within the meaning of Rule 13d-3
promulgated under the Exchange Act), directly or indirectly, of more than 50%
of the voting capital stock of the Company, (B) any Person other than an
Excluded Person has or obtains the right to elect a majority of the Board or (C) the
Company sells in a single transaction or series of transactions all or
substantially all of its assets; and provided, that, for avoidance of doubt, an
initial public offering of securities of the Company shall not constitute a
Change in Control for purposes of this Agreement.


 


A
termination of employment by the Executive for Good Reason shall be effectuated
by giving the Company written notice (“Notice of Termination for Good Reason”)
of the termination, setting forth the conduct of the Company that constitutes
Good Reason, within the later of (i) ninety (90) days of the first date on
which the Executive has knowledge of such conduct or (ii) if a Sale
Transaction has occurred prior to June 1, 2010, prior to the Sale
Extension Date.  The Executive shall
further provide the Company at least thirty (30) days following the date on
which such notice is provided to cure such conduct.  Failing such cure, a termination of
employment by the Executive for Good Reason shall be effective on the day
following the expiration of such cure period.


 


(d)           No Waiver.  The failure to set forth any fact or
circumstance in a Notice of Termination for Cause or a Notice of Termination
for Good Reason shall not constitute a waiver of the right to assert, and shall
not preclude the party giving notice from asserting, such fact or circumstance
in an attempt to enforce any right under or provision of this Agreement.


 


(e)           Date of
Termination.  The “Date
of Termination” means the date of the Executive’s death, the date on which
the Executive is designated as having a Disability, or the date on which the
termination of the Executive’s employment by the Company or by the Executive is
effective.


 

















 


5.             Obligations of
the Company upon Termination.


 


(a)           Termination
Other Than for Cause; Termination for Good Reason; Non-Renewal of the Term.  If either (i) during the Term, (A) the
Company terminates the Executive’s employment, for any reason other than for
Cause, death or Disability, or (B) the Executive terminates his employment
for Good Reason, or (ii) the Executive terminates his employment at the
end of the Term and the Company has previously given notice to the Executive
that the Term will not be extended, then the Company shall pay the amounts and
provide the benefits, subject to and in accordance with Section 5(e) hereof,
in each case as set forth in paragraphs A through F below.


 


A.            The Executive’s
earned and accrued but unpaid cash compensation, in the form of a lump-sum
payment, to be paid not later than the regularly scheduled pay period next
following the date on which the Release becomes effective, which shall equal
the sum of (i) any portion of the Executive’s Annual Base Salary earned
through the Date of Termination that has not yet been paid, (ii) any
unpaid Annual Bonus that was earned by the Executive and declared due and owing
by the Company, and (iii) any accrued but unpaid vacation time, in each
case subject to applicable taxes and withholding (the amounts set forth in
subclauses (i)-(iii) constitute the “Accrued Obligations”).  The Company shall also provide the Executive
with any other benefits (other than severance benefits) to which the Executive
is entitled under the Company’s benefit plans and arrangements as and when due
under such plans and arrangements (the “Accrued Benefits”).


 


B.            A pro rata
portion of the Executive’s Annual Bonus in the form of a lump-sum payment,
which shall equal the sum of the Executive’s Annual Bonus at target, multiplied
by the number equal to the sum of any partial and full months worked by the
Executive in the year of termination, divided by the number twelve (12) (the “Pro
Rata Bonus”).


 


C.            Payments,
payable in accordance with the Company’s standard monthly payroll practices and
subject to withholding and taxes, of an amount equal to the sum of (i) the
Executive’s Annual Base Salary and (ii) the greater of the Annual Bonus at
the target level and the actual Annual Bonus most recently paid to the
Executive, determined on a monthly basis, for a period of 12 (twelve) months
from the Date of Termination (the “Salary Continuation Severance Payments”).


 


D.            For twelve (12)
months from the Date of Termination, and subject to the Executive electing
COBRA continuation coverage, the Company shall provide the Executive with
medical, dental and vision benefits at active-employee rates.


 


E.             A lump sum
payment of $18,263 in lieu of the annual financial planning, annual physical
and life insurance benefits (the “Benefit Payment”).


 


F.             The unvested
portion of any equity compensation granted to the Executive shall (whether or
not specified in the grant agreements evidencing such equity compensation)
become immediately vested as to that portion thereof that would become
exercisable during the period beginning on the Date of Termination and ending
on the first anniversary of the Date of Termination, assuming that the
Executive’s employment had continued during the entirety of such period; provided,
that if the Date of Termination is on or after the date on which a Change in
Control occurs, then any equity compensation granted to the


 

















 


Executive
shall (whether or not specified in the grant agreements evidencing such equity
compensation) become fully vested as of the Date of Termination.


 


(b)           Death or
Disability.  If the
Executive’s employment is terminated by reason of the Executive’s death or
Disability during the Term, the Company shall pay the Accrued Obligations to
the Executive or the Executive’s estate or legal representative, as applicable,
in a lump-sum payment (subject to applicable taxes and withholding) not later
than the next regularly scheduled pay period following the Date of Termination,
and, following the Date of Termination, the Company shall provide the Executive
with the Accrued Benefits as and when due.


 


(c)           Cause, etc.  If the Executive’s employment is terminated
by the Company for Cause during the Term, or if the Executive terminates his
employment during the Term other than for Good Reason, the Company shall pay
the Executive, in a lump-sum payment (subject to applicable taxes and
withholding) not later than the next regularly scheduled pay period following
the Date of Termination, the Accrued Obligations, and, following the Date of
Termination, the Company shall provide the Executive with the Accrued Benefits
as and when due.


 


(d)           Termination
Other Than for Cause, Termination for Good Reason, or Non-Renewal of the Term
following a Change in Control.  If either (i) within eighteen (18)
months following a Change in Control, (A) the Company terminates the
Executive’s employment for any reason other than for Cause, death or
Disability, or (B) the Executive terminates his employment for Good
Reason, or (ii) the Executive terminates his employment at the end of the
Term and the Company has given notice to the Executive within eighteen (18)
months following a Change in Control that the Term will not be extended, then
the Company shall, in addition to the payment and benefits provided for in
Sections 5(a)(A) through 5(a)(F) and subject to and in accordance
with Section 5(e), pay the amounts and provide the benefits described in
paragraphs (A) through (D) below:


 


A.            A lump sum
payment equal to one-half (.5) times the sum of (i) the Executive’s Annual
Base Salary and (ii) the greater of the Annual Bonus at the target level
and the actual Annual Bonus most recently paid to the Executive (the “CIC
Severance Payment”).


 


B.            In addition to
the continuation coverage provided in Section 5(a)(D) hereof, and
subject to the Executive electing COBRA continuation coverage, the Company shall
provide the Executive with medical, dental and vision benefits at
active-employee rates for an additional six (6) months.


 


C.            A lump sum
payment equal to one half (1⁄2)  times the Benefit Payment (the “CIC
Benefit Payment”).


 


D.            The unvested
portion of any equity compensation granted to the Executive shall (whether or
not specified in the grant agreements evidencing such equity compensation)
become immediately fully vested.


 


If
the Executive’s employment is terminated by the Company for any reason other
than for Cause, death or Disability at any time prior to the date of a Change
in


 

















 


Control
and either (i) such termination occurred after the Company entered into a
definitive agreement, the consummation of which would constitute a Change in
Control or (ii) the Executive was terminated at the request of a third
party who has indicated an intention or has taken steps reasonably calculated
to effect a Change in Control, such termination shall be deemed to have
occurred after a Change in Control, notwithstanding that such event or
condition occurred prior to a Change in Control, and the payments and benefits
described above in this Section 5(d) shall apply.


 


For
purposes of this Section 5(d), with respect to the definition of Good
Reason, if any event or condition described in Section 4(c) occurs at
any time prior to the date of a Change in Control and either (i) occurred
after the Company entered into a definitive agreement, the consummation of
which would constitute a Change in Control or (ii) was at the request of a
third party who has indicated an intention or has taken steps reasonably
calculated to effect a Change in Control, any resulting termination by the
Executive for Good Reason shall be deemed to have occurred after a Change in
Control, notwithstanding that such event or condition occurred prior to a
Change in Control, and the payments and benefits described above in this Section 5(d) shall
apply.


 


If
the Executive terminates his employment at the end of the Term and the Company
has previously given notice to the Executive that the Term will not be extended
at any time prior to or following the date of a Change in Control and either (i) such
notice or termination occurred after the Company entered into a definitive
agreement, the consummation of which would constitute a Change in Control or (ii) the
Company gave such notice of termination to the Executive that the Term will not
be extended at the request of a third party who has indicated an intention or
has taken steps reasonably calculated to effect a Change in Control, such
termination shall be deemed to have occurred after a Change in Control,
notwithstanding that such event or condition occurred prior to a Change in
Control, and the payments and benefits described above in this Section 5(d) shall
apply.


 


(e)           Timing of
Severance Payments and Benefits.


 


The
Company’s obligations to make the payments, or otherwise perform, as set forth
in Sections 5(a)(B), (C), (D), (E), and (F) and Sections 5(d)(A), (B), (C) and
(D), shall be conditioned upon: (i) the Executive’s continued compliance
with his obligations under Section 6 and (ii) the Executive’s
execution, delivery and non-revocation of a valid and enforceable general
release of claims against the Company and its affiliates in the form attached
hereto as Exhibit A (the “Release”) within forty-five (45) days
after the Executive’s Date of Termination.


 


The
payments and benefits described in Sections 5(a)(A), (D), and (F) and
Sections 5(d)(B) and (D) shall be made, provided, or commenced, as
applicable, promptly after the Date of Termination, provided that the Executive
has executed and delivered the Release, and the Release has become irrevocable
by such date.


 


If
no stock of the Company is publicly traded on an established securities market
or otherwise on the Date of Termination, the payments and benefits described in
Sections 5(a)(B), (C), and (E) and Sections 5(d)(A) and (C) shall
be made, provided, or commenced, as


 

















 


applicable,
on the forty-fifth (45th) day after the
Date of Termination.  If stock of the
Company is publicly traded on an established securities market or otherwise on
the Date of Termination, the payments and benefits described in Sections
5(a)(B), (C), and (E) and Sections 5(d)(A) and (C) shall be
made, provided, or commenced, as applicable, upon the day following the day
that is six (6) months after the Date of Termination.


 


Except
for any payments made pursuant to the Company’s Senior Executive Bonus Pool
Program, the payments described in Sections 5(a) through (d) shall
constitute the exclusive payments in the nature of severance or termination pay
which shall be due to the Executive upon a termination of employment and shall
be in lieu of any other such payments under any plan, program, policy or other
arrangement of the Company or any affiliate. 
The Executive shall have no obligation to mitigate any amounts payable
or arrangements made under any provision of this Agreement, whether by seeking
employment or otherwise.


 


If
the Executive dies during the period between the Date of Termination and the
date on which the payments and benefits described in Sections 5(a) and 5(d) are
due to be paid, all such payments and benefits shall be paid to the personal
representative of the Executive’s estate.


 


(f)            Immediate
Vesting on Change in Control.  Without limitation of Section 5(a)(F),
the unvested portion of any equity compensation granted to the Executive shall
(whether or not specified in the grant agreements evidencing such equity
compensation) immediately become fully vested upon a Change in Control, whether
or not a termination of the Executive’s employment occurs; provided,
however, that to the extent equity compensation is treated as deferred
compensation for purposes of the Internal Revenue Code of 1986 as amended, and
the regulations issued thereunder (“Section 409 A”), the vesting of
such equity compensation shall only accelerate pursuant to this Section 5(f) upon
a Change in Control which also constitutes a change in control or effective
control of the Company or a change in the ownership of a substantial portion of
its assets, in each case within the meaning of Section 409A.


 


(g)           Separate
Payments.  The Pro
Rata Bonus, the Salary Continuation Severance Payments, the Benefit Payment,
the CIC Benefit Payment, and the CIC Severance Payment are each intended to be
separate payments for purposes of Section 409A.


 


(h)           Indemnification
by the Company.  The Company
shall defend, indemnify, and hold the Executive harmless from and against any
liabilities the Executive may incur by virtue of the applicability of Section 409A
to any payments made hereunder.


 


(i)            Taxes and
Withholding.  All
payments and benefits to be made or otherwise provided to the Executive
hereunder shall be subject to applicable taxes and withholding.


 


6.             Confidential
Information; Noncompetition; Work Product.  The Executive acknowledges that his
employment by the Company will, throughout the Employment Period bring him into
close contact with the confidential affairs of the Company and its affiliates,
including information about their client and customer lists and information
concerning proprietary manufacturing formulations and processes, costs,
profits, real estate, markets, sales,


 

















 


products,
key personnel, pricing policies, operational methods, patents, research and
development, technical processes, and other business affairs and methods, plans
for future product development and other information not readily available to
the public.  The Executive further
acknowledges that the services to be performed under this Agreement are of a
special, unique, unusual, extraordinary and intellectual character.  The Executive further acknowledges that the
business of the Company and its subsidiaries is international in scope, that
their products are marketed throughout the world, that the Company and its
subsidiaries competes in nearly all of their business activities with other
entities that are or could be located in nearly any part of the world and that
the nature of the Executive’s services, position and expertise are such that he
is capable of competing with the Company and its subsidiaries from nearly any
location in the world.  In recognition of
the foregoing, the Executive covenants and agrees:


 


(a)           The Executive,
at all times during the Employment Period and thereafter, shall hold in a fiduciary
capacity for the benefit of the Company all secret, trade, proprietary or
confidential information, knowledge or data relating to the Company or any of
its affiliated companies and shareholders, and their respective businesses,
that the Executive obtains during the Executive’s employment by the Company or
any of its affiliated companies and that is not public knowledge (other than as
a result of the Executive’s violation of this Section 6(a)) (“Confidential
Information”).  The Executive shall
not communicate, divulge or disseminate Confidential Information at any time
during or after the Executive’s employment with the Company, except with the
prior written consent of the Company or as otherwise required by law or legal
process.  The Executive shall deliver
promptly to the Company on termination of the Executive’s employment by the
Company, or at any other time the Company may so request, at the Company’s
expense, all memoranda, notes, records, reports and other documents (and all
copies thereof) relating to the Company’s business, which the Executive
obtained while employed by, or otherwise serving or acting on behalf of, the
Company and which the Executive may then posses or have under the Executive’s
control.


 


(b)           During the “Noncompetition
Period,” the Executive shall not, without the prior written consent of the
Board, engage in or become associated with a “Competitive Activity.”  For purposes of this Section 6:  (i) the “Noncompetition Period”
means the period commencing on the Effective Date and ending on the
twelve-month anniversary of the date upon which Executive’s employment with the
Company is terminated for any reason; (ii) a “Competitive Activity”
means any business or other endeavor that engages in clinical or pre-clinical
research or development, manufacturing, marketing, sales, or commercialization
of products or services that directly or indirectly compete with, or are a
therapeutic alternative to, either (x) the products of, or services
engaged in by, the Company or any of its subsidiaries at the Date of
Termination in any geographic location in the United States, or (y) the
products proposed to be developed or commercialized, or services proposed to be
engaged in, by the Company or any of its subsidiaries at the Date of
Termination in any geographic location in the United States (provided that
clause (y) shall apply only to any proposed business activity as to which
the Company or any of its subsidiaries has devoted significant and documented
efforts at the Date of Termination, whether internally or through acquisition,
licensing or other business development activities); provided, however, that
the Executive shall not be engaged in a Competitive Activity if he is providing
services to a division or subsidiary of a multi-division entity or holding
company, so long as no division or subsidiary to which the Executive provides
services is in competition with the Company or its subsidiaries or affiliates,
and the Executive does not


 

















 


otherwise
engage in a Competitive Activity on behalf of the multi-division entity or any
competing division or subsidiary; and (iii) the Executive shall be
considered to have become “associated with a Competitive Activity” if the
Executive becomes directly or indirectly involved as an owner, investor (other
than a passive stockholder of less than five percent (5%) of a corporation the
securities of which are traded on a national securities exchange), employee,
officer, director, consultant, independent contractor, agent, partner, advisor,
or in any other capacity calling for the rendition of the Executive’s personal
services, with any individual, partnership, corporation or other organization
that is engaged directly or indirectly in a Competitive Activity.


 


(c)           During the
Noncompetition Period, the Executive shall not, on his own behalf or on behalf
of any other person, firm or entity (x) directly or indirectly solicit,
induce or attempt to solicit or induce any employee of the Company or any of
its subsidiaries to terminate his employment with the Company or any of its
subsidiaries, or to provide any assistance whatsoever to any person, firm or
entity engaged in a Competitive Activity, or (y) directly or indirectly
induce any business, entity or person with which the Company or any of their
subsidiaries or affiliates has a business relationship to terminate or alter
such business relationship.


 


(d)           In addition to
such other rights and remedies as the Company may have at equity or in law with
respect to any breach of this Agreement, if the Executive commits a material
breach of any of the provisions of Section 6, the Company shall have the
right to seek to have such provisions specifically enforced by any court having
equity jurisdiction (without any obligation to post a bond or other security);
it being acknowledged and agreed that any such breach or threatened breach will
cause irreparable injury to the Company and that money damages alone will not
provide an adequate remedy to the Company.


 


(e)           The Executive
acknowledges that during the Employment Period, the Executive may conceive of,
discover, invent or create inventions, improvements, new contributions,
literary property, computer programs and software material, ideas and
discoveries, whether patentable or copyrightable or not (all of the foregoing
being collectively referred to herein as “Work Product”), and that
various business opportunities shall be presented to the Executive by reason of
the Executive’s employment by the Company. 
The Executive acknowledges that all of the foregoing shall be owned by
and belong exclusively to the Company and that the Executive shall have no
personal interest therein; provided that they are either related in any
manner to the business (commercial or experimental) of the Company or any of
its subsidiaries, or are, in the case of Work Product, conceived or made on the
Company’s time or with the use of the Company’s facilities or materials, or, in
the case of business opportunities, are presented to the Executive for the
possible interest or participation of the Company or any of its
subsidiaries.  The Executive shall (i) promptly
disclose any such Work Product and business opportunities to the Company; (ii) assign
to the Company, upon request and without additional compensation, the entire
rights to such Work Product and business opportunities; (iii) sign all
papers necessary to carry out the foregoing; and (iv) give testimony in
support of the Executive’s inventorship or creation in any appropriate
case.  The Executive agrees that the
Executive will not assert any rights to any Work Product or business
opportunity as having been made or acquired by the Executive prior to the date
of this Agreement except for Work Product or business opportunities disclosed
on Exhibit B to this Agreement.


 














 


(f)            The Executive
acknowledges and agrees that the provisions of this Section 6 are
necessary to protect the business operations and affairs of the Company and its
subsidiaries.  The Executive understands
that the restrictions set forth in this Agreement may limit his ability to earn
a livelihood in a business similar that of the Company, but he nevertheless
believes that he has received and will receive sufficient consideration and
other benefits as an employee of the Company to justify clearly such restrictions
which, in any event (given his education, skills and ability), the Executive
does not believe would prevent him from earning a livelihood.


 


7.             Successors.


 


(a)           This Agreement
is personal to the Executive and, without the prior written consent of the
Company, shall not be assignable by the Executive otherwise than by will or the
laws of descent and distribution.  This
Agreement shall inure to the benefit of and be enforceable by the Executive’s
legal representatives.


 


(b)           This Agreement
shall inure to the benefit of and be binding upon the Company and its
successors and assigns, and may be assigned by Company in connection with any
sale, transfer or other disposition of all or substantially all of its business
and assets.


 


(c)           The Company
shall require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or
assets of the Company expressly to assume and agree to perform under this
Agreement in the same manner and to the same extent that the Company would have
been required to perform it if no such succession had taken place, except under
circumstances in which such assumption occurs by operation of law.  As used in this Agreement, “Company” shall
mean both the Company as defined above and any such successor that assumes and
agrees to perform this Agreement, by operation of law or otherwise.


 


8.             Indemnification.  The Executive shall be entitled to defense by
and full indemnification from the Company for any claims that a third party
brings against him based on any alleged act or omission related in any way to
the Executive’s employment by the Company to the maximum extent permitted under
applicable law.  In addition, during the
term of the Executive’s employment, the Executive shall be covered under any
directors’ and officers’ insurance policy maintained by the Company.


 


9.             Post-Termination
Assistance.  After the
termination of the Executive’s employment for any reason, for so long as the
Executive is receiving any payments pursuant to this Agreement, the Executive
shall cooperate, at the reasonable request of the Company or any of its
subsidiaries, (i) in the transition of any matter for which the Executive
had authority or responsibility during the Employment Period, or (ii) with
respect to any other matter involving the Company or any of its subsidiaries
for which the Executive may be of assistance. 
Any such cooperation required from the Executive shall take into account
any responsibilities to which the Executive is subject to a subsequent employer
or otherwise.


 


10.           Miscellaneous.


 


(a)           This Agreement
shall be governed by, and construed in accordance with, the laws of the State
of New Jersey, applicable to agreements made and to be performed entirely


 

















 


within
such state.  The captions of this
Agreement are not part of the provisions hereof and shall have no force or
effect.  This Agreement may not be
amended or modified except by a written agreement executed by the parties
hereto or their respective successors and legal representatives.


 


(b)           All notices and
other communications under this Agreement shall be in writing and shall be
given by hand delivery to the other party or by registered or certified mail,
return receipt requested, postage prepaid, addressed as follows:


 


If
to the Executive, to the Executive’s address as


maintained
by the Company.


 


If
to the Company:


 


Ikaria
Holdings, Inc.


6
Route 173


Clinton,
New Jersey 08809


Telephone:  (908) 238-6600


Facsimile:  (908) 238-6699


Attention:  General Counsel


 


or
to such other address as either party furnishes to the other in writing in
accordance with this Section 10. 
Notices and communications shall be effective when actually received by
the addressee.


 


(c)           The invalidity
or unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provision of this Agreement.  If any provision of this Agreement shall be
held invalid or unenforceable in part, the remaining portion of such provision,
together with all other provisions of this Agreement, shall remain valid and
enforceable and continue in full force and effect to the fullest extent
consistent with law, and the invalid or unenforceable provision shall be deemed
to have been redrafted as if in the original, so as to be valid and enforceable
to the maximum extent permissible under applicable law.


 


(d)           Notwithstanding
any other provision of this Agreement, the Company may withhold from amounts
payable under this Agreement all federal, state, local and foreign taxes that
are required to be withheld by applicable laws or regulations.


 


(e)           The failure of
the Executive or the Company to insist upon strict compliance with any
provision of, or to assert any right under, this Agreement shall not be deemed
to be a waiver of such provision or right or of any other provision of or right
under this Agreement.


 


(f)            The Executive
and the Company acknowledge that this Agreement represents the complete
agreement between the parties and supersedes any other agreement between them
concerning the subject matter hereof, including the Original Agreement.  This Agreement may not be modified except by
express written agreement between the parties.


 


(g)           This Agreement
may be executed in one or more counterparts, each of which shall be deemed an
original, and which together shall constitute one instrument.


 

















 


(h)           Whenever this
Agreement provides for any payment to the Executive’s estate, such payment may
be made instead to such beneficiary or beneficiaries as the Executive may
designate by written notice to the Company. 
The Executive shall have the right to revoke any such designation and to
redesignate a beneficiary or beneficiaries by written notice to the Company
(and to any applicable insurance company) to such effect.


 


(i)            The Executive
represents and warrants to the Company that this Agreement is legal, valid and
binding upon the Executive and the execution of this Agreement and the
performance of the Executive’s obligations hereunder does not and will not
constitute a breach of, or conflict with the terms or provisions of, any
agreement or understanding to which the Executive is a party (including,
without limitation, any other employment agreement).  The Company represents and warrants to the
Executive that this Agreement is legal, valid and binding upon the Company and
the execution of this Agreement and the performance of the Company’s
obligations hereunder does not and will not constitute a breach of, or conflict
with the terms or provisions of, any agreement or understanding to which the
Company is a party.


 


(j)            Neither the
Executive, his legal representative nor any beneficiary designated by the
Executive shall have any right, without the prior written consent of the
Company, to assign, transfer, pledge, hypothecate, anticipate or commute to any
person or entity any payment due in the future pursuant to any provision of
this Agreement, and any attempt to do so shall be void and shall not be
recognized by the Company.


 


(k)           Each party (i) hereby
irrevocably submits itself to and acknowledges and recognizes the jurisdiction
of the courts of the State of New Jersey in the County of Hunterdon (which
court, together with all applicable appellate courts, for purposes of this
Agreement, are the only “courts of competent jurisdiction”), for the purpose of
any suit, action or other proceeding arising out of, under, or in connection
with, relating to, or based upon this Agreement, (ii) agrees that any
service of process in connection with any such suit, action or other proceeding
may be made upon it by means of the United States mail or such other service as
may be authorized by any such court, (iii) agrees that the courts of
competent jurisdiction shall be the sole and exclusive courts and forums for
the purpose of any such suit, action or proceeding and (iv) waives and
agrees not to assert, by way of motion, as a defense, or otherwise, in any such
suit, action or proceeding, any claim that it is not subject to the
jurisdiction of courts of competent jurisdiction, that such suit, action or
proceeding is brought in an inconvenient forum, that the venue of the suit,
action or proceeding is improper or that this Agreement or the subject matter
hereof may not be enforced in or by such court. 
Each party agrees that its submission to jurisdiction and its consent to
service of process by mail is made for the express benefit of the other party.


 


(l)            Each of the
parties has been represented by counsel (or has had the opportunity to be so
represented) in the negotiation and preparation of this Agreement.  The parties agree that this Agreement is to
be construed as jointly drafted. 
Accordingly, this Agreement will be construed according to the fair
meaning of its language, and the rule of construction that ambiguities are
to be resolved against the drafting party will not be employed in the
interpretation of this Agreement.


 

















 


(m)          The Executive
acknowledges and agrees that the Company may satisfy its obligations to make
payments to the Executive under this Agreement by causing one or more of its
subsidiaries to make such payments to the Executive.  The Executive agrees that any such payment
made by any such subsidiary shall fully satisfy and discharge the Company’s
obligation to make such payment to the Executive hereunder (but only to the
extent of such payment).


 


(n)           Notwithstanding
the expiration or termination of this Agreement, the provisions of Sections 6,
7, 9 and 10 of the Agreement shall continue in full force and effect and remain
fully binding upon the parties.


 


11.           Gross-Up
Payment.


 


(i)            To the extent
that any (a) severance payment, (b) transaction or other bonus
payment, (c) payment under any transaction or other incentive plan, (d) payment
related to equity or made under an equity incentive program, or (e) other
amounts or payments of any type or kind whatsoever, in the nature of
compensation (within the meaning of Section 280G of the Internal Revenue
Code of 1986, as amended, and the regulations promulgated thereunder (“Section 280G”))
or otherwise to or for the benefit of the Executive under this Agreement, or
any other agreement or plan, or otherwise (or any part of such amount or other
payment) (collectively, “Payments”), in any case constitutes an “excess
parachute payment” within the meaning of Section 280G and Section 4999
of the Internal Revenue Code (“Section 4999”), then the Company
shall pay to the Executive an additional sum (“Gross-Up Payment”) such
that, after all taxes applicable to the receipt of such amount have been
subtracted therefrom, the remaining amount will equal the sum of the amount of tax
imposed with respect to the “excess parachute payments,” plus any interest and
penalties thereon (other than those caused solely by Executive’s action or
inaction).  Therefore, the effect shall
be to maintain the Executive in the same financial position that he would have
been in had no tax under Section 4999 been imposed.  All payments and reimbursements to which the
Executive is entitled under this Section 11 shall be made not later than April 15
of the taxable year of the Executive next following the taxable year of the
Executive in which the Executive receives amounts subject to Section 4999.


 


(ii)           Notwithstanding
the immediately preceding paragraph, in the event that a reduction to the
Payments in respect of the Executive of 10% or less, but not more than
$250,000, would cause none of the Payments to be “excess parachute payments,”
the Executive will not be entitled to a Gross-Up Payment and the Payments shall
be reduced to the extent necessary so that none of the Payments shall be “excess
parachute payments.”  Unless the
Executive shall have given prior written notice to the Company specifying a
different order by which to effectuate the foregoing, the Company shall reduce
or eliminate the Payments (x) by first reducing or eliminating the portion
of the Payments which are not payable in cash (other than that portion of the
Payments subject to clause (z) hereof), (y) then by reducing or
eliminating cash payments (other than that portion of the Payments subject to
clause (z) hereof) and (z) then by reducing or eliminating the
portion of the Payments (whether payable in cash or not payable in cash) to
which Treasury Regulation § 1.280G-1 Q/A 24(c) (or successor thereto)
applies, in each case in reverse order beginning with payments or benefits
which are to be paid the farthest in time from the date of the Change in
Control.  Any notice given by the
Executive pursuant to the preceding sentence shall take precedence over the
provisions of any other plan,


 

















 


arrangement
or agreement governing the Executive’s rights and entitlements to any benefits
or compensation.


 


(iii)          The provisions
of this Section 11 shall expire, and shall be of no further force or
effect, on December 31, 2010.


 


[SIGNATURE PAGE FOLLOWS]


 

















 


IN
WITNESS WHEREOF, the Executive has hereunto set the Executive’s hand and,
pursuant to the authorization of its Board, the Company has caused this
Agreement to be executed in its name on its behalf, all as of the day and year
first above written.


 


	
  EXECUTIVE

  
	
   

  
	
   

  
	
  /s/ James A. Briggs

  	
   

  
	
  By:

  	
  James A Briggs

  
	
  Title:

  	
  Senior Vice President,
  Human Resources

  
	
   

  	
   

  
	
   

  	
   

  
	
  IKARIA HOLDINGS, INC.

  
	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Daniel Tassé

  	
   

  
	
   

  	
   

  
	
  By:

  	
  Daniel Tassé

  
	
  Title:

  	
  President & Chief
  Executive Officer

  



 


Exhibits:


A:  Form of Waiver and Release of Claims


B:  Disclosed Work Product and Business
Opportunities


 

















 


Exhibit A


Form of Waiver and Release of Claims


 


WAIVER AND RELEASE OF CLAIMS


 


1.             General Release.  In consideration of the payments and benefits
to be made under the Amended and Restated Employment Agreement, dated as of June 1,
2009, to which Ikaria Holdings, Inc. (the “Company”) and James
Briggs (the “Executive”) are parties (the “Employment Agreement”),
the Executive, with the intention of binding the Executive and the Executive’s
heirs, executors, administrators and assigns, does hereby release, remise,
acquit and forever discharge the Company and each of its subsidiaries and
affiliates (the “Company Affiliated Group”), their present and former
officers, directors, executives, agents, shareholders, attorneys, employees and
employee benefits plans (and the fiduciaries thereof), and the successors,
predecessors and assigns of each of the foregoing (collectively, the “Company
Released Parties”), of and from any and all claims, actions, causes of
action, complaints, charges, demands, rights, damages, debts, sums of money,
accounts, financial obligations, suits, expenses, attorneys’ fees and
liabilities of whatever kind or nature in law, equity or otherwise, whether
accrued, absolute, contingent, unliquidated or otherwise and whether now known,
unknown, suspected or unsuspected which the Executive, individually or as a
member of a class, now has, owns or holds, or has at any time heretofore had,
owned or held, against any Company Released Party (an “Action”) arising
out of or in connection with the Executive’s service as an employee, officer
and/or director to any member of the Company Affiliated Group (or the
predecessors thereof), including (i) the termination of such service in
any such capacity, (ii) for severance or vacation benefits, unpaid wages,
salary or incentive payments, (iii) for breach of contract, wrongful
discharge, impairment of economic opportunity, defamation, intentional
infliction of emotional harm or other tort and (iv) for any violation of
applicable state and local labor and employment laws (including, without
limitation, all laws concerning harassment, discrimination, retaliation and
other unlawful or unfair labor and employment practices), any and all Actions
based on the Employee Retirement Income Security Act of 1974 (“ERISA”), and any
and all Actions arising under the civil rights laws of any federal, state or
local jurisdiction, including, without limitation, Title VII of the Civil
Rights Act of 1964 (“Title VII”), the Americans with Disabilities Act (“ADA”),
Sections 503 and 504 of the Rehabilitation Act, the Family and Medical Leave
Act and the Age Discrimination in Employment Act (“ADEA”), excepting
only:


 


(a)                                  rights of the Executive
under this Waiver and Release of Claims and the Employment Agreement;


 


(b)                                 rights of the Executive
relating to equity awards held by the Executive as of his date of termination;


 


(c)                                  the right of the Executive
to receive COBRA continuation coverage in accordance with applicable law and
the Employment Agreement;


 


(d)                                 rights to indemnification
the Executive may have (i) under applicable corporate law, (ii) under
the by-laws or certificate of incorporation of any 


 

















 


Company
Released Party or (iii) as an insured under any director’s and officer’s
liability insurance policy now or previously in force;


 


(e)                                  claims (i) for benefits
under any health, disability, retirement, deferred compensation, life insurance
or other, similar employee benefit plan or arrangement of the Company
Affiliated Group and (ii) for earned but unused vacation pay through the
date of termination in accordance with applicable Company policy; and


 


(f)                                    claims for the reimbursement
of unreimbursed business expenses incurred prior to the date of termination
pursuant to applicable Company policy.


 


2.             No Admissions,
Complaints or Other Claims.  The Executive acknowledges and agrees that
this Waiver and Release of Claims is not to be construed in any way as an
admission of any liability whatsoever by any Company Released Party, any such
liability being expressly denied.  The
Executive also acknowledges and agrees that he has not, with respect to any
transaction or state of facts existing prior to the date hereof, filed any
Actions against any Company Released Party with any governmental agency, court
or tribunal.


 


3.             Application to
all Forms of Relief.  This Waiver
and Release of Claims applies to any relief no matter how called, including,
without limitation, wages, back pay, front pay, compensatory damages,
liquidated damages, punitive damages for pain or suffering, costs and attorney’s
fees and expenses.


 


4.             Specific Waiver.  The Executive specifically acknowledges that
his acceptance of the terms of this Waiver and Release of Claims is, among
other things, a specific waiver of any and all Actions under Title VII, ADEA, ADA
and any state or local law or regulation in respect of discrimination of any
kind; provided, however, that nothing herein shall be deemed, nor
does anything herein purport, to be a waiver of any right or Action which by
law the Executive is not permitted to waive.


 


5.             Voluntariness.  The Executive acknowledges and agrees that he
is relying solely upon his own judgment; that the Executive is over eighteen
years of age and is legally competent to sign this Waiver and Release of
Claims; that the Executive is signing this Waiver and Release of Claims of his
own free will; that the Executive has read and understood the Waiver and
Release of Claims before signing it; and that the Executive is signing this
Waiver and Release of Claims in exchange for consideration that he believes is
satisfactory and adequate.  The Executive
also acknowledges and agrees that he has been informed of the right to consult
with legal counsel and has been encouraged to do so.


 


6.             Complete
Agreement/Severability.  This
Waiver and Release of Claims constitutes the complete and final agreement
between the parties and supersedes and replaces all prior or contemporaneous
agreements, negotiations, or discussions relating to the subject matter of this
Waiver and Release of Claims.  All provisions
and portions of this Waiver and Release of Claims are severable.  If any provision or portion of this Waiver
and Release of Claims or the application of any provision or portion of the
Waiver and Release of Claims shall be determined to be invalid or unenforceable
to any extent or for any reason, all other provisions and portions of 


 

















 


this
Waiver and Release of Claims shall remain in full force and shall continue to
be enforceable to the fullest and greatest extent permitted by law.


 


7.             Acceptance and
Revocability.  The
Executive acknowledges that he has been given a period of 21 days within which
to consider this Waiver and Release of Claims, unless applicable law requires a
longer period, in which case the Executive shall be advised of such longer period
and such longer period shall apply.  The
Executive may accept this Waiver and Release of Claims at any time within this
period of time by signing the Waiver and Release of Claims and returning it to
the Company.  This Waiver and Release of
Claims shall not become effective or enforceable until seven calendar days
after the Executive signs it.  The
Executive may revoke his acceptance of this Waiver and Release of Claims at any
time within that seven calendar day period by sending written notice to the
Company.  Such notice must be received by
the Company within the seven calendar day period in order to be effective and,
if so received, would void this Waiver and Release of Claims for all purposes.


 


8.             Governing Law.  Except for issues or matters as to which
federal law is applicable, this Waiver and Release of Claims shall be governed
by and construed and enforced in accordance with the laws of the State of New
Jersey without giving effect to the conflicts of law principles thereof.


 


 


	
   

  	
   

  



 

















 


Exhibit B


Disclosed Work Product and Business Opportunities


 


NONE