Exhibit 10.21
AMENDED AND RESTATED
EXECUTIVE EMPLOYMENT AGREEMENT
This
Amended and Restated Executive Employment Agreement (the
“Agreement”) is made as of June 7, 2005 (the
“Effective Date”) between CNS, Inc., a Delaware
corporation (“CNS”), and Dan Cohen
(“Employee”) and amends and restates the Executive
Employment Agreement dated February 12, 1999, as amended June
29, 2001, June 29, 2003 and June 30, 2004 between CNS and
Employee.
WHEREAS,
CNS considers the establishment and maintenance of a sound and
vital management to be essential to protecting and enhancing the
best interests of CNS and its shareholders; and
WHEREAS,
Employee has made and is expected to continue to make, due to his
experience and knowledge, a significant contribution to the
profitability, growth and financial strength of CNS; and
WHEREAS,
it is in the best interests of CNS to receive certain assurances
from Employee regarding CNS’s confidentiality, competition
and other proprietary business concerns;
THEREFORE,
in consideration of the foregoing and of this Agreement, continued
employment and other benefits hereunder, as well as other mutual
covenants and obligations hereinafter set forth, CNS and Employee
agree as follows:
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1.
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Employment . Employee’s sole duties and
responsibilities will be that of Chairman of the Board of Directors
of CNS, Inc., a part-time, regular position with the Company. As
such, Employee will perform the duties of Board Chairman and
director, which shall include chairing Board meetings and
interacting with the Chief Executive Officer as appropriate.
Employee agrees to make himself available to assist the CEO and
CFO, as requested, in reviewing new products and negotiating
licensing contracts with inventors. Employee will also provide
other expertise and assistance, as requested by the CEO or other
members of the Management Team. The Company will provide Employee
home office support and will make an office available to Employee
at CNS.
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2.
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Term .
The Company agrees to retain Employee as an employee of the
Company under the terms of this Agreement until June 30, 2006,
at which time, unless the Agreement is extended by mutual agreement
of the parties, the Agreement shall terminate, except with respect
to the provisions of Sections 6, 7, 8, 9, 10 and 11 of the
Agreement, which shall survive. Effective June 30, 2006,
Employee will cease to be an employee of the Company, and
Employee’s salary, perquisites and any other welfare and
fringe benefits provided to him as an employee shall thereupon
cease. Employee shall not be entitled to any salary continuation,
severance or similar payment from the Company under the Agreement
or any policy or practice of the Company because of such
termination on June 30, 2006.
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3.
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Compensation . As full compensation during the term of
employment for services as Chairman, the Company will pay Employee
a base salary at a rate of One Hundred Thousand Dollars ($100,000)
per annum, payable in semi-monthly installments, subject to tax
withholding to the extent required by law. Employee will not accrue
paid time off during the term of employment, but shall be entitled
to take time off as required without any change in base
salary.
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4.
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Benefits . Employee shall be entitled to such
insurance, 401(k) program and other benefits available to all
part-time salaried employees of CNS, subject to any limitations on
such benefits to officers, directors or highly paid employees in
order that such benefit programs qualify under federal or state law
for favored tax or other treatment. Such benefit programs may be
changed from time to time by the Company. Employee shall also be
entitled to reimbursement of his reasonable and necessary expenses
incurred in connection with the performance of his duties
hereunder. The Company shall also pay or reimburse Employee for the
reasonable and necessary costs associated with a home office
maintained by the Employee, provided that the Employee provides
reasonable proof of such expenses in accordance with general
Company policies.
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5.
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Termination
by Employee .
Employee may resign his employment with CNS effective upon 30
days’ advance written notice to the Chief Executive Officer.
If Employee resigns under this paragraph,
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