EMPLOYMENT AGREEMENT
Exhibit 10.1
THIS AGREEMENT (the “Agreement”), dated as of July 7, 2007 (the “Effective Date”), is made by
and between Javelin Pharmaceuticals, Inc., a Delaware corporation with principal executive offices
at 000 XxxxxxxxxXxxx Xxxxx, Xxxxxxxxx, XX 00000, and Xxxxxx X. Xxxx, M.D., residing 000 Xxxxxxx
Xxxxxx, Xxxxxxxx Xxxx, XX 00000 (the “Executive”)
WITNESSETH:
WHEREAS, the Company currently employs the Executive as Chief Executive Officer and Chief
Medical Officer of the Company under a contract dated July 7, 2004 (the “Prior Agreement”);
WHEREAS, the Company and the Executive mutually wish to renew and extend the Executive’s term
as Chief Executive Officer and Chief Medical Officer of the Company; and
WHEREAS, the Company desires to employ the Executive as Chief Executive Officer and Chief
Medical Officer of the Company, and the Executive desires to serve the Company in those capacities,
upon the terms and subject to the conditions contained in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained,
the parties hereto hereby agree as follows:
1. Employment
(a) Services. The Executive will be employed by the Company as its Chief Executive
Officer and Chief Medical Officer. The Executive will report to the Board of Directors of the
Company (the “Board”) and shall perform such duties as are consistent with his position as Chief
Executive Officer and Chief Medical Officer (as applicable, the “Services”). The Executive
agrees to perform such duties faithfully, to devote all of his working time, attention and energies
to the business of the Company, and while he remains employed by the Company, not to engage in any
other business activity that is in conflict with his duties and obligations to the Company. Subject
to the forgoing sentence, the Executive may continue to see patients, may continue his professional
activities, (specifically: attending professional meetings, lecturing, serving on editorial boards,
and serving on editorial boards of professional organizations), to maintain his professional
standing and thereby enhance the reputation and standing of the Company. Notwithstanding the
foregoing or any other provision in this Agreement, the Executive agrees that he will not spend
more than 8 business hours per month on any activities, in the aggregate, that are not directly
related to the business of the Company.
(b) Acceptance. Executive hereby accepts such employment and agrees to render the
Services.
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2. Term
The Executive’s employment under this Agreement (the “Term”) shall commence as of the
Effective Date and shall continue for a term of three (3) years unless sooner terminated pursuant
to Section 9 of this Agreement. Thereafter, this Agreement shall automatically renew for successive
one (1) year periods until such time as either party elects to not renew. A party electing to not
renew this Agreement must give the other party at least six (6) months notice of such election.
Notwithstanding anything to the contrary contained herein, the provisions of this Agreement
governing protection of Confidential Information shall continue in effect as specified in Section 6
hereof and survive the expiration or termination hereof.
3. Best Efforts; Place of Performance
(a) Subject to the exceptions of §l(a), the Executive shall devote substantially all of his
business time, attention and energies to the business and affairs of the Company and shall use his
best efforts to advance the best interests of the Company and shall not during the Term be actively
engaged in any other business activity, whether or not such business activity is pursued for gain,
profit or other pecuniary advantage, that will interfere with the performance by the Executive of
his duties hereunder or the Executive’s availability to perform such duties or that will adversely
affect, or negatively reflect upon, the Company.
(b) The duties to be performed by the Executive hereunder shall be performed primarily at the
office of the Company, subject to reasonable travel requirements on behalf of the Company, or such
other place as the Board may reasonably designate.
4. Directorship.
The Executive is currently a member of the Board of Directors of the Company. The Company
shall use its best efforts to cause the Executive to be re-elected as a Director throughout the
Term, and shall include him in the management slate for election as a director at every
stockholders meeting during the Term at which his term as a director would otherwise expire. The
Executive agrees to accept election, and to serve during the Term, as director of the Company,
without any compensation therefore other than as specified in this Agreement.
5. Compensation.
As full compensation for the performance by the Executive of his duties under this Agreement,
the Company shall pay the Executive as follows:
(a) Base Salary. The Company shall pay Executive a salary (the “Base Salary”) equal
to Four Hundred Fifty Thousand Dollars ($450,000.00) per year. Payment shall be made in accordance
with the Company’s normal payroll practices. The Base Salary shall be reviewed for adjustment
annually by the Board of Directors. In no event shall the amount of the Base Salary be reduced
below $450,000.00 during the Term of the Executive.
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(b) Annual Performance Cash Bonus. The Executive shall be entitled to receive
additional bonus income (the “Performance Cash Bonus”) in an amount up to $450,000.00, based
on the attainment by the Executive of certain financial, clinical development and business
milestones (the “Performance Objectives”) as established annually by mutual agreement of the Board
of Directors and the Executive. The Executive will have a target cash bonus equal to 50% of base
salary, with the potential to be awarded up to 100% of base salary. The Performance Cash Bonus
actually awarded for each annual period during the Term shall be pro-rated based on the percentage
of Performance Objectives achieved for that annual period; however, the Board of Directors may, in
its sole judgment, make discretionary adjustments to the Performance Cash Balance. The Board of
Directors and the Executive shall, by mutual agreement, establish the Performance Objectives for
each upcoming year in connection with the establishment of annual Corporate Goals.
(c) Withholding. The Company shall withhold all applicable federal, state and local
taxes and social security and such other amounts as may be required by law from all amounts payable
to the Executive under this §5.
(d) Annual Stock Option Bonus.
The Executive shall be entitled to receive an annual option to purchase shares of the Company’s
common stock (the “Stock Option Bonus”), based on the attainment by the Executive of the
Performance Objectives as established annually by mutual agreement of the Board of Directors and
the Executive, and as described in §5(b) above. The actual number of options awarded shall be
determined using the then-current option award guidelines approved by the Board of Directors;
however, the Board may, in its sole judgment, make discretionary adjustments to the Stock Option
Bonus. Any options granted under the Stock Option Bonus will be issued at the closing price of the
Company’s Common Stock on the date of any such grant and shall vest, if at all, in three equal
parts upon each anniversary of the grant. All such options shall be subject to the provisions of
the Company’s then-current Omnibus Stock Incentive Plan.
(e) Expenses. The Company shall reimburse the Executive for all normal, usual and
necessary expenses incurred by the Executive in furtherance of the business and affairs of the
Company, including reasonable travel and entertainment, upon timely receipt by the Company of
appropriate vouchers or other proof of the Executive’s expenditures and otherwise in accordance
with any expense reimbursement policy as may from time to time be adopted by the Company.
(f) Other Benefits. The Executive shall be entitled to all rights and benefits for
which he shall be eligible under any benefit or other plans (including, without
limitation, dental, medical, medical reimbursement and hospital plans, disability insurance,
pension plans, employee stock purchase plans, profit sharing plans, bonus plans and other
so-called “fringe” benefits) as the Company shall make available to its senior executives from
time to time. In addition, the Company shall reimburse Executive for the reasonable cost of a
dedicated phone line for his home office.
(g) Vacation. The Executive shall, during the Term, be entitled to accrue vacation at
a rate of five (5) weeks per annum, in addition to holidays observed and personal and
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sick days allowed by the Company. The Executive shall not be entitled to carry any vacation
forward to the next year of employment, and shall not receive any compensation for such unused
vacation days.
6. Confidential Information and Inventions.
(a) The Executive recognizes and acknowledges that in the course of his duties he is likely to
receive confidential or proprietary information owned by the Company, its affiliates or third
parties with whom the Company or any such affiliates has an obligation of confidentiality.
Accordingly, during and after the Term, the Executive agrees to keep confidential and not
disclose or make accessible to any other person or use for any other purpose other than in
connection with the fulfillment of his duties under this Agreement, any Confidential and
Proprietary Information (as defined below) owned by, or received by or on behalf of, the Company or
any of its affiliates. “Confidential and Proprietary Information” shall include, but shall not be
limited to, confidential or proprietary scientific or technical information, data, formulas and
related concepts, business plans (both current and under development), client lists, promotion and
marketing programs, trade secrets, or any other confidential or proprietary business information
relating to development programs, costs, revenues, marketing, investments, sales activities,
promotions, credit and financial data, manufacturing processes, financing methods, plans or the
business and affairs of the Company or of any affiliate or client of the Company. The Executive
expressly acknowledges the trade secret status of the Confidential and Proprietary Information and
that the Confidential and Proprietary Information constitutes a protectable business interest of
the Company. The Executive agrees: (i) not to use any such Confidential and Proprietary Information
for himself or others; and (ii) not to take any Company material or reproductions (including but
not limited to writings, correspondence, notes, drafts, records, invoices, technical and business
policies, computer programs or disks) from the Company’s offices at any time during his employment
by the Company, except as required in the execution of the Executive’s duties to the Company. The
Executive agrees to return immediately all Company material and reproductions (including but not
limited, to writings, correspondence, notes, drafts, records, invoices, technical and business
policies, computer programs or disks) thereof in his possession to the Company upon request and in
any event immediately upon termination of employment.
(b) Except with prior written authorization by the Company, the Executive agrees not to
disclose or publish any of the Confidential and Proprietary Information, or any confidential,
scientific, technical or business information of any other party to whom the Company or any of its
affiliates owes an obligation of confidence, at any time during or after his employment with the
Company.
(c) The Executive agrees that all inventions, discoveries, improvements and patentable
or copyrightable works initiated, conceived or made by him, either alone
or in conjunction with others, through the use of the resources of the Company or directly related
to the business of the Company (the “Inventions”) during the Term shall be the sole property of
the Company to the maximum extent permitted by applicable law and, to the extent permitted by law,
shall be “works made for hire” as that term is defined in the United States Copyright Act (17
U.S.C.A., §101). The Company shall be the sole owner of all patents,
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copyrights, trade secret rights, and other intellectual property or other rights in the
Inventions. The Executive hereby assigns to the Company all right, title and interest he may have
or acquire in all such Inventions; provided, however, that the Board of Directors of the Company
may in its sole discretion agree to waive the Company’s rights pursuant to this §6(c). The
Executive further agrees to assist the Company in every proper way (at the Company’s expense) to
obtain and from time to time enforce patents, copyrights or other rights on such Inventions in any
and all countries, and to that end the Executive will execute all documents necessary:
(i) to apply for, obtain and vest in the name of the Company alone (unless the Company
otherwise directs) Letters Patent, copyrights or other analogous protection in any country
throughout the world and when so obtained or vested to maintain, renew and restore the same; and,
(ii) to defend any opposition proceedings in respect of such applications and any opposition
proceedings or petitions or applications for revocation of such Letters Patent, copyright or other
analogous protection.
(d) The Executive acknowledges that while performing the Services under this Agreement the
Executive may locate, identify and/or evaluate patented or patentable inventions or other business
opportunities (the “Third Party Inventions”) having commercial potential in the fields of pharmacy,
pharmaceuticals, biotechnology, healthcare, technology and other fields which may be of potential
interest to the Company or its affiliates. The Executive understands, acknowledges and agrees that
all rights to, interests in or opportunities regarding, all Third-Party Inventions identified by
the Company, its affiliates or any of the foregoing persons’ officers, directors, employees
(including the Executive), agents or consultants during the Employment Term shall be and remain the
sole and exclusive property of the Company (or such affiliate). The Executive shall have no rights
whatsoever to such Third-Party Inventions and will not pursue for himself or for others any
transaction relating to the Third-Party Inventions which is not on behalf of the Company.
Notwithstanding the foregoing, if the Company, having been presented with the opportunity by the
Executive to pursue such Third Party Inventions chooses not to do so, then Executive may pursue
such Third Party Inventions himself without accounting to the Company therefore, subject to §l(a)
hereof.
(e) Executive agrees that he will promptly disclose to the Company, or
any persons designated by the Company, all improvements and/or Inventions made, conceived, reduced
to practice, or learned by him, either alone or jointly with others, during the Term.
(f) Executive has participated in the development of intellectual property jointly created by
the Tufts New England Medical Center and the Neuropeptide Laboratory of the Polish Academy of
Sciences, and will continue to do so during the term of this Agreement subject to §l(a). However,
§6(c) shall not be applicable to such work or such intellectual property provided, however, the
Executive does not use the resources of the Company to develop such intellectual property.
(g) The provisions of this §6 shall survive any termination of this Agreement.
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7. Non-Competition, Non-Solicitation and Non-Disparagement.
(a) The Executive understands and recognizes that his services to the Company are
special and unique and that in the course of performing such services the Executive will have
access to and knowledge of Confidential and Proprietary Information (as defined in §6) and the
Executive agrees that, during the Term and for a period of nine (9) months thereafter, he shall not
in any manner, directly or indirectly, on behalf of himself or any person, firm, partnership, joint
venture, corporation or other business entity (“Person”), enter into or engage in any business
which is engaged in any business directly competitive with the business of the Company, either as
an individual for his own account, or as a partner, joint venturer, owner, executive, employee,
independent contractor, principal, agent, consultant, salesperson, officer, director or shareholder
of a Person in a business competitive with the Company within the geographic area of the Company’s
business, which is deemed by the parties hereto to be worldwide. The Executive acknowledges that,
due to the unique nature of the Company’s business, the loss of any of its clients or business flow
or the improper use of its Confidential and Proprietary Information could create significant
instability and cause substantial damage to the Company and its affiliates and therefore the
Company has a strong legitimate business interest in protecting the continuity of its business
interests and the restriction herein agreed to by the Executive narrowly and fairly serves such an
important and critical business interest of the Company. For purposes of this Agreement, the
Company shall be deemed to be actively engaged on the date hereof in the development and
commercialization of (a) drugs, including therapeutics for the treatment of pain, (b) novel
application drug delivery systems for the treatment of pain, and (c) in the future in any other
business in which it actually devotes substantive resources to study, develop or pursue.
Notwithstanding the foregoing, nothing contained in this Section 7(a) shall be deemed to prohibit
the Executive from (i) acquiring or holding, solely for investment, publicly traded securities of
any corporation, some or all of the activities of which are competitive with the business of the
Company if such holdings do not, in the aggregate, constitute more than four percent (4%) of any
class or series of outstanding securities of such corporation, with the exception of Accugesics.
This §7(a) shall not be enforceable by the Company against the Executive if the Executive (i) is
terminated by the Company without Cause; (ii) terminates this Agreement for Good Reason; or (iii)
is terminated at the time or within six (6) months of a Change of Control (as hereinafter defined).
(b) During the Term and for a period of 12 months thereafter, the Executive shall not,
directly or indirectly, without the prior written consent of the Company:
(i) solicit or induce any employee of the Company or any of its affiliates to leave the employ
of the Company or any such affiliate; or hire for any purpose any employee of the Company or any
affiliate or any employee who has left the employment of the Company or any affiliate within one
year of the termination of such employee’s employment with the Company or any such affiliate or at
any time in violation of such employee’s non-competition agreement with the Company or any such
affiliate; or
(ii) solicit or accept employment or be retained by any Person who, at any time during the
term of this Agreement, was an agent, client or customer of the Company or any
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of its affiliates where his position will be related to the business of the Company or any such
affiliate; or
(iii) solicit or accept the business of any agent, client or customer of the Company or any
of its affiliates with respect to products or services which compete directly with the products or
services provided or supplied by the Company or any of its affiliates.
(iv) Notwithstanding the foregoing, §§7(b)(ii)-7(b)(iii) shall not be enforceable by the
Company against Executive if the Executive (i) is terminated by the Company without Cause; (ii)
terminates this Agreement for Good Reason; or (iii) is terminated at the time or within six (6)
months of a Change of Control (as hereinafter defined).
(c) The Company and the Executive each agree that both during the Term and at all times
thereafter, neither party shall directly or indirectly disparage, whether or not true, the name or
reputation of the other party or any of its affiliates, including but not limited to, any officer,
director, employee or shareholder of the Company or any of its affiliates.
(d) In the event that the Executive breaches any provisions of §6 or this §7 or there is a
threatened breach, then, in addition to any other rights which the Company may have, the Company
shall be entitled, without the posting of a bond or other security, to seek injunctive relief to
enforce the restrictions contained in such Sections, in addition to any other remedies at law or in
equity to which the Company may be entitled.
(e) Each of the rights and remedies enumerated in §7(d) shall be independent of the others and
shall be in addition to and not in lieu of any other rights and remedies available to the Company
at law or in equity. If any of the covenants contained in this §7, or any part of any of them, is
hereafter construed or adjudicated to be invalid or unenforceable, the same shall not affect the
remainder of the covenant or covenants or rights or remedies which shall be given full effect
without regard to the invalid portions. If any of the covenants contained in this §7 is held to be
invalid or unenforceable because of the duration of such provision or the area covered thereby, the
parties agree that the court making such determination shall have the power to reduce the duration
and/or area of such provision and in its reduced form such provision shall then be enforceable.
(f) In the event that an actual proceeding is brought in equity to enforce the provisions of
§6 or this §7, the Executive shall not urge as a defense that there is an adequate remedy at law
nor shall the Company be prevented from seeking any other remedies which may be available.
(g) The provisions of this §7 shall survive any termination of this Agreement.
8. Representations and Warranties by the Executive.
The Executive hereby represents and warrants to the Company as follows:
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(a) Neither the execution or delivery of this Agreement nor the performance by the Executive
of his duties and other obligations hereunder violate or will violate any statute, law,
determination or award, or conflict with or constitute a default or breach of any covenant or
obligation under (whether immediately, upon the giving of notice or lapse of time or both) any
prior employment agreement, contract, or other instrument to which the Executive is a party or by
which he is bound.
(b) The Executive has the full right, power and legal capacity to enter and deliver this
Agreement and to perform his duties and other obligations hereunder. This Agreement constitutes the
legal, valid and binding obligation of the Executive enforceable against him in accordance with its
terms. No approvals or consents of any persons or entities are required for the Executive to
execute and deliver this Agreement or perform his duties and other obligations hereunder.
9. Termination.
The Executive’s employment hereunder shall be terminated upon the Executive’s death and may be
terminated as follows:
(a) The Executive’s employment hereunder may be terminated by the Board of Directors of the
Company for Cause. Any of the following actions by the Executive shall constitute “Cause”:
(i) The willful failure, disregard or refusal by the Executive to perform his duties
hereunder, which is not cured, if curable, by Executive within thirty (30) days after written
notice thereof is given to the Executive by the Company, which notice shall specify the act(s) or
omission(s) on which the Company relies to establish Cause;
(ii) Any willful, intentional grossly negligent act by the Executive
having the effect of injuring, in a material way (whether financial or otherwise and as determined
in good-faith by a majority of the Board of Directors of the Company), the business or reputation
of the Company or any of its affiliates, including but not limited to, any officer, director,
executive or shareholder of the Company or any of its affiliates;
(iii) Willful misconduct by the Executive in respect of the duties or obligations of the
Executive under this Agreement, including insubordination with respect to the lawful directions
received by the Executive from the Board of Directors of the Company, which is not cured, if
curable, by Executive within thirty (30) days after written notice thereof is given to the
Executive by the Company, which notice shall specify the act(s) or omission(s) on which the
Company relies to establish Cause;
(iv) The Executive’s conviction of any felony or a misdemeanor involving moral
turpitude (including entry of a nolo contendere plea);
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(v) The determination by the Company, after a reasonable and good-faith investigation by the
Company following a written allegation by another employee of the Company, that the Executive
engaged in some form of harassment prohibited by law (including, without limitation, age, sex or
race discrimination), unless the Executive’s actions were specifically directed by the Board of
Directors of the Company;
(vi) Any misappropriation or embezzlement of the property of the Company or its
affiliates (whether or not a misdemeanor or felony);
(vii) Breach by the Executive of any of the provisions of Sections 6, 7 or 8 of this
Agreement; and
(viii) A material breach by the Executive of any provision of this Agreement other than those
contained in Sections 6, 7 or 8 which is not cured by the Executive within thirty (30) days after
written notice thereof is given to the Executive by the Company, which notice shall specify the
act(s) or omission(s) on which the Company relies to establish Cause.
(b) The Executive’s employment hereunder may be terminated by the Board of Directors of the
Company due to the Executive’s Disability. For purposes of this Agreement, a termination for
“Disability” shall occur (i) when the Board of Directors of the Company has provided a written
termination notice to the Executive supported by a written statement from a reputable independent
physician to the effect that the Executive shall have become so physically or mentally
incapacitated as to be unable to resume, within the ensuing twelve (12) months, his employment
hereunder by reason of physical or mental illness or injury, or (ii) upon rendering of a written
termination notice by the Board of Directors of the Company after the Executive has been unable to
substantially perform his duties hereunder for ninety (90) or more consecutive days, or more than
one hundred twenty (120) days in any consecutive twelve (12) month period, by reason of any
physical or mental illness or injury. For purposes of this Section 9(b), the Executive agrees to
make himself available and to cooperate in any reasonable examination by a reputable independent
physician retained by the Company.
(c) The Executive’s employment hereunder may be terminated by the Board of Directors of the
Company (or its successor) upon the occurrence of a Change of
Control. For purposes of this Agreement, “Change of Control” means (i) the acquisition, directly
or indirectly, following the date hereof by any person (as such term is defined in Sections 13(d)
and 14(d)(2) of the Securities Exchange Act of 1934, as amended), in one transaction or a series
of related transactions, of securities of the Company representing in excess of fifty percent
(50%) or more of the combined voting power of the Company’s then outstanding securities if such
person or his or its affiliates do not own in excess of 50% of such voting power on the date of
this Agreement, or (ii) the future disposition by the Company (whether direct or indirect, by sale
of assets or stock, merger, consolidation or otherwise) of all or substantially all of its
business and/or assets in one transaction or series of related transactions (other than a merger
effected exclusively for the purpose of changing the domicile of the Company).
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(d) The Executive’s employment hereunder may be terminated by the Executive for Good Reason.
For purposes of this Agreement, “Good Reason” shall mean:
(i) any material breach of this Agreement that is not cured by the Company within thirty (30)
days after receipt of written notice by Executive to the Company of such material breach;
(ii) any diminution or adverse (to the Executive) change in the duties, responsibilities,
rights, privileges or the reporting relationships, which were applicable to and enjoyed by the
Executive at the commencement of the Term, without the consent of the Executive, except as a
result of the termination of the Executive’s employment by the Company;
(iii) any requirement from the Board of Directors of the Company that Executive must relocate
his office from the Metropolitan Boston area; or
(iv) the failure to nominate Executive to, or his removal from, the
Board of Directors of the Company. For purposes of clarification, this §9(d)(iv) shall not apply
if the Executive is removed from the Board of Directors as a result of a failure to be re-elected
by a vote of the shareholders.
(e) The Executive’s employment may be terminated by the Company or by the Executive without
Cause at any time.
10. Compensation Upon Termination.
(a) If the Executive’s employment is terminated as a result of his death or Disability, the
Company shall pay to the Executive or to the Executive’s estate, as applicable, his Base Salary and
any accrued but unpaid Bonus and expense reimbursement amounts through the date upon which his
Death or Disability occurs. All Stock Options that are scheduled to vest by the end of the calendar
year in which such termination occurs shall be accelerated and shall be vested as of the date of
his Disability or Death. All Stock Options that have not vested (or been deemed pursuant to the
immediately preceding sentence to have vested) as of the date of his Disability or Death shall be
deemed to have expired as of such date.
(b) If the Executive’s employment is terminated by the Board of Directors
of the Company for Cause, then the Company shall pay to the Executive his Base Salary and expense
reimbursement through the date of his termination and the Executive shall have no further
entitlement to any other compensation or benefits from the Company. All Stock Options that have
not vested as of the date of termination for Cause shall be deemed to have expired as of such
date. Any Stock Options that have vested as of the date of the Executive’s termination for Cause
shall remain exercisable for a period of 90 days following the date of such termination.
(c) If the Executive’s employment is terminated by the Company (or its successor) upon the
occurrence of a Change of Control or within six (6) months thereafter, the Company (or its
successor, as applicable) shall (i) continue to pay to the Executive his Base Salary for a period
of six (6) months following such termination, and (ii) pay the Executive any accrued and unpaid
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Bonus, and (iii) pay expense reimbursement amounts through the date of termination. All Stock
Options that have not vested as of the date of such termination shall be accelerated and deemed to
have vested as of such termination date.
(d) If the Executive’s employment is terminated by the Company without Cause, or by the
Executive for Good Reason, then the Company shall (i) continue to pay to the Executive his Base
Salary for a period of twelve (12) months from the date of such termination, and (ii) pay the
Executive the Bonus he would have earned had he been employed for six (6) months from the date upon
which such termination occurs, and (iii) pay the Executive any expense reimbursement amounts owed
through the date of termination. All Stock Options that are scheduled to vest in the contract year
of the date of such termination shall be accelerated and deemed to have vested as of the
termination date. All Stock Options that have not vested (or deemed to have vested pursuant to the
preceding sentence) shall be deemed expired, null and void. Any Stock Options that have vested as
of the date of the Executive’s termination shall remain exercisable for a period as outlined in the
company’s Omnibus Stock Option program.
(e) This Agreement sets forth the only obligations of the Company with respect to the
termination of the Executive’s employment with the Company, and the Executive acknowledges
that, upon the termination of his employment, he shall not be entitled to any payments or benefits
which are not explicitly provided for herein. Furthermore, any payments made to the Executive
under §§10(c) or 10(d) herein, shall be conditioned upon the Executive executing a mutually
acceptable release of any and all claims that the Executive may have had, has or may have against
the Company and/or its employees, executives and/or directors, arising out of the Executive’s
employment with the Company.
(f) Upon termination of the Executive’s employment hereunder for any reason, the Executive
shall be deemed to have resigned as director of the Company, effective as of the date of such
termination.
(g) The provisions of this Section 10 shall survive any termination of this Agreement.
11. Miscellaneous.
(a) This Agreement shall be governed by, and construed and interpreted in accordance with, the
laws of the Commonwealth of Massachusetts, without giving effect to its principles of conflicts of
laws.
(b) Any dispute arising out of, or relating to, this Agreement or the breach thereof (other
than Sections 6 or 7 hereof), or regarding the interpretation thereof, shall be finally settled by
arbitration conducted in Boston, Massachusetts in accordance with the rules of the American
Arbitration Association then in effect before a single arbitrator appointed in accordance with such
rules. Judgment upon any award rendered therein may be entered and enforcement obtained thereon in
any court having jurisdiction. The arbitrator shall have authority to grant any form of appropriate
relief, whether legal or equitable in nature, including specific performance. For the purpose of
any judicial proceeding to enforce such award or incidental to such arbitration or to
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compel arbitration and for purposes of Sections 6 and 7 hereof, the parties hereby submit to the
non-exclusive jurisdiction of the state courts of the Commonwealth of Massachusetts, or the United
States District Court for the District of Massachusetts, and agree that service of process in such
arbitration or court proceedings shall be satisfactorily made upon it if sent by registered mail
addressed to it at the address referred to in paragraph (g) below. Each party shall be responsible
for its own attorney’s fees in such arbitration, and all of the costs and expenses incurred with
respect to the arbitration proceeding (except for the filing fee, which shall be borne solely by
the party commencing the arbitration) shall be divided equally between the parties. Judgment on the
arbitration award may be entered by any court of competent jurisdiction.
(c) This Agreement shall be binding upon and inure to the benefit of the parties hereto, and
their respective heirs, legal representatives; successors and assigns.
(d) This Agreement, and the Executive’s rights and obligations hereunder, may not be assigned
by the Executive. The Company may assign its rights, together with its obligations, hereunder in
connection with any sale, transfer or other disposition of all or substantially all of its business
or assets or other Change of Control, provided such assignee agrees in writing to be bound by this
Agreement.
(e) This Agreement cannot be amended orally, or by any course of conduct or dealing, but only
by a written agreement signed by the parties hereto.
(f) The failure of either party to insist upon the strict performance of any of the terms,
conditions and provisions of this Agreement shall not be construed as a waiver or relinquishment of
future compliance therewith, and such terms, conditions and provisions shall remain in full force
and effect. No waiver of any term or condition of this Agreement on the part of either party shall
be effective for any purpose whatsoever unless such waiver is in writing and signed by such party.
(g) All notices, requests, consents and other communications, required or permitted to be
given hereunder, shall be in writing and shall be delivered personally or by an overnight courier
service or sent by registered or certified mail, postage prepaid, return receipt requested, to the
parties at the addresses set forth on the first page of this Agreement, and shall be deemed given
when so delivered personally or by overnight courier, or, if mailed, five (5) days after the date
of deposit in the United States mails. Either party may designate another address, for receipt of
notices hereunder by giving notice to the other party in accordance with this paragraph (g).
(h) This Agreement sets forth the entire agreement and understanding of the parties relating
to the subject matter hereof, and supersedes all prior agreements, arrangements and
understandings, written or oral, relating to the subject matter hereof, including the Prior
Agreement, but excluding agreements and plans with respect to stock and stock options. No
representation, promise or inducement has been made by either party that is not embodied in this
Agreement, and neither party shall be bound by or liable for any alleged representation, promise
or inducement not so set forth.
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(i) As used in this Agreement, “affiliate” of a specified Person shall mean and include any
Person controlling, controlled by or under common control with the specified Person.
(j) The section headings contained herein are for reference purposes only and shall not in
any way affect the meaning or interpretation of this Agreement.
(k) This Agreement may be executed in any number of counterparts, each of which shall
constitute an original, but all of which together shall constitute one and the same instrument.
(1) The Company shall reimburse Executive for the attorney’s fees incurred by him for the
review, revision, negotiation and finalization of this Agreement, to a maximum of $5,000.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above
written.
| EXECUTIVE | ||||||
/s/ Xxxxxxx X. Xxxxxx
Chairman |
/s/ Xxxxxx X. Xxxx
|
