EMPLOYMENT AGREEMENT
Exhibit
10.24
This
Employment Agreement (the “Agreement”)
is by
and between Blackstone Medical, Inc., a Massachusetts corporation (the
“Company”),
and
Xxxxxxx X. Xxxxx, an individual (the “Executive”).
PRELIMINARY
STATEMENTS
A. The
Company and the Executive are parties to a previous Employment Agreement
effective January 1, 2004 (the “Prior
Agreement”),
but
desire to terminate the Prior Agreement and enter into this written Agreement
to
memorialize the new terms of their relationship in light of the Company’s merger
with New Era Medical Corp., as delineated in the Agreement and Plan of Merger
dated on or about August 4, 2006 (the “Merger
Agreement”).
This
Agreement shall become effective on the date of closing of the merger delineated
in the Merger Agreement (the “Effective
Date”).
In
the event that the merger delineated in the Merger Agreement does not close,
then this Agreement shall have no effect and the Company and the Executive
will
continue with their obligations and relationship terms memorialized in the
Prior
Agreement.
B. The
Executive understands and agrees that the Executive’s entry into this Agreement
is a material inducement and condition to the execution and delivery of the
Merger Agreement by the parties to the Merger Agreement.
C. The
Executive desires to render such services, upon the terms and conditions
contained herein.
D. The
Company and the Executive agree and acknowledge that pursuant to this Agreement
the Executive will receive consideration and other benefits over and above
that
which he was entitled to receive under the Prior Agreement and over and above
that which he would otherwise be entitled to receive as compensation for
services performed for the Company.
The
parties, intending to be legally bound, hereby agree as follows:
I. EMPLOYMENT
AND DUTIES
1.1 Duties.
The
Company hereby employs the Executive as an employee, and the Executive agrees
to
be employed by the Company, upon the terms and conditions set forth herein.
While serving as an employee of the Company, the Executive shall serve as
President - Orthofix Spine. The Executive shall have such power and authority
and perform such duties, functions and responsibilities as are associated with
and incident to such position, and as the Company may from time to time require
of him.
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1.2 Services.
During
the Term (as defined in Section 1.3), and excluding any periods of vacation,
sick leave or disability, the Executive agrees to devote his full business
time,
attention and efforts to the business and affairs of the Company. During the
Term, it shall not be a violation of this Section 1.2 for the Executive to
(a)
serve on civic or charitable boards or committees (but not corporate boards),
(b) deliver lectures or fulfill speaking engagements or (c) manage personal
investments, so long as such activities do not interfere with the performance
of
the Executive’s responsibilities in accordance with this Agreement. The
Executive must request the Company’s prior written consent to serve on a
corporate board, which consent shall be at the Company’s reasonable discretion
and only so long as such service does not
interfere with the performance of his responsibilities hereunder.
1.3 Term
of Employment.
The
term of this Agreement shall commence on the Effective Date and shall continue
until a date two years after the Effective Date (the “Term”)
unless
sooner terminated or extended as provided hereunder. In the event that the
Executive continues to be employed by the Company after the Term, unless
otherwise agreed by the parties in writing, such continued employment shall
be
on an at-will basis upon terms agreed upon at such time without regard to the
terms and conditions of this Agreement and this Agreement shall be deemed
terminated at the end of the Term, regardless of whether such employment
continues at-will, other than Articles VI and VII, which shall survive the
termination or expiration of this Agreement for any reason.
II. COMPENSATION
2.1 General.
The
Base
Salary (as defined in Section 2.2) and the Incentive Compensation (as defined
in
Section 2.3.) payable to the Executive hereunder, as well as any other
compensation (if any), shall be determined from time to time by the Company
and
paid pursuant to the Company’s customary payroll practices or in accordance with
the terms of any applicable Company policies, written plans, or written
agreements. The
Company shall pay the Executive in cash, in accordance with the normal payroll
practices of the Company, the base salary and Incentive Compensation set forth
below. The Company may also withhold from any of the Executive’s compensation,
in whatever form, under this Agreement any amount required by law or necessary
for the Executive’s elected participation in any Company benefit
plan(s).
2.2 Base
Salary.
The
Executive shall be paid a base salary (“Base Salary”) of no less than $21,666.67
per month ($260,000.00 on an annualized basis) while he is employed by the
Company during the Term;
provided,
however,
that
nothing shall prohibit the Company from reducing the Base Salary as part of
an
overall cost reduction program that affects all senior executives of the Company
and does not disproportionately affect the Executive,
so long
as such reductions do not reduce the Base Salary to a rate that is less than
90%
of the minimum Base Salary amount set forth above (or, if the minimum base
salary amount has been increased during the Term, 90% of such increased
amount).
2.3 Bonus
or other Incentive Compensation.
With
respect to each fiscal year of the Company during the Term, the Executive shall
be eligible to receive annual bonus compensation in an amount based on
reasonable goals for the earning of such compensation as may be determined
by
the Company from time to time (the “Goals”).
Amounts that may be earned upon attainment of all
reasonably achievable annual Goals will be targeted to equal not less than
40%
of the annual base salary in such fiscal year. The amount of any actual payment
under this Section 2.3 will depend upon the achievement (or not) of the various
performance metrics comprising the Goals. If employed for a partial year, the
Executive shall be eligible to receive only a pro rata portion of any bonus
amounts annualized for that year. Amounts payable under this Section 2.3 shall
be determined by the Company, at its sole discretion, and shall be payable
no
later than two and one-half months after the end of such fiscal year. In
addition, the Executive shall be eligible to receive such additional bonus
or
incentive compensation as the Company may establish from time to time in its
sole discretion. Any bonus or incentive compensation under this Section 2.3
or
otherwise is referred to herein as “Incentive
Compensation.”
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III. EMPLOYEE
BENEFITS
3.1 General.
Subject
only to any post-employment rights under Article V, so long as the Executive
is
employed by the Company pursuant to this Agreement, he shall be eligible for
the
following benefits to
the
extent generally available to senior executives of the Company or by virtue
of
his position, tenure, salary and other qualifications. Any eligibility shall
be
subject to and in accordance with the terms and conditions of the Company’s
benefits policies and applicable plans (including as to deductibles, premium
sharing, co-payments or other cost-splitting arrangements).
3.2 Savings
and Retirement Plans.
The
Executive shall be entitled to participate in, and enjoy the benefits of, all
savings, pension, salary continuation and retirement plans, practices, policies
and programs available to senior executives of the Company.
3.3 Welfare
and Other Benefits.
The
Executive and/or the Executive’s eligible dependents, as the case may be, shall
be entitled to participate in, and enjoy the benefits of, all welfare benefit
plans, practices, policies and programs provided by the Company and other
benefits at a level that is available to other senior executives of the
Company.
3.4 Vacation.
The
Executive shall be entitled to 3 weeks paid vacation per 12-month period.
3.5 Car
Allowance.
The
Executive shall be entitled to a car allowance of $900.00 per month while he
is
employed by the Company during the Term on the same basis as other employees
of
the Company.
3.6 Expenses.
The
Executive shall be entitled to receive prompt reimbursement for all reasonable
business-related expenses incurred by the Executive in performing his duties
under this Agreement. Reimbursement of the Executive for such expenses will
be
made upon presentation to the Company of expense vouchers that are in sufficient
detail to identify the nature of the expense, the amount of the expense, the
date the expense was incurred and to whom payment was made to incur the expense,
all in accordance with the expense reimbursement practices, policies and
procedures of the Company.
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3.7 Key
Man Insurance.
The
Company shall be entitled to obtain a “key man” or similar life or disability
insurance policy on the Executive, and neither the Executive nor any of his
family members, heirs or beneficiaries shall be entitled to the proceeds
thereof. Such insurance shall be available to offset any payments due to the
Executive pursuant to Section 5.1 of this Agreement due to his death or
Disability.
IV. TERMINATION
OF EMPLOYMENT
4.1 Termination
by Mutual Agreement.
The
Executive’s employment
may be terminated at any time during the Term by mutual written agreement of
the
Company and the Executive.
4.2 Death.
The
Executive’s employment hereunder shall terminate upon his death and no further
compensation will be due to the Executive except for the Executive’s unpaid Base
Salary owed through the employment termination date.
4.3 Termination
Without Cause.
The
Company may terminate the Executive’s employment at any time during the Term
without Cause by delivering to the Executive a Notice of Termination 30 days
in
advance of the date of termination; provided that as part of such notice the
Company may request that the Executive immediately tender the resignations
contemplated by Section 4.8 and otherwise cease performing his duties under
the
Agreement. The Notice of Termination need not state any reason for termination
and such termination can be for any reason or no reason. The date of termination
shall be the date set forth in the Notice of Termination.
4.4 Termination
With Cause.
The
Company may, by delivering to the Executive a Notice of Termination, effective
as of the date listed on the Notice of Termination, terminate Executive’s
employment at any time for Cause. For purposes of this Agreement, “Cause” shall
mean the following: (i)
if the
Executive should be convicted of or pleads nolo
contendre
to any
felony offense or to a crime that the Company determines, in its sole
discretion, is crime of moral turpitude (whether or not a felony); (ii)
if
the
Executive should commit misconduct or violate any law in connection with the
performance of any of the Executive’s duties, including, without limitation, (a)
misappropriation of funds or property of the Company or any of its affiliates
or
customers, (b) securing or attempting to secure personally any profit in
connection with any transaction entered into on behalf of the Company or any
of
its affiliates, or (c) making any material misrepresentation to the Company
or
any of the Company’s affiliates; (iii) the Executive’s
violation of or failure to comply with any written Company policy; (iv) the
Executive’s material breach of any term of this Agreement; (v) the Executive’s
unacceptable work performance; and (vi) if
the
Executive gives any oral or written notice of resignation or provides a Notice
of Termination based on the Voluntary Termination provision in Section 4.6.
The
Company shall not have Cause to terminate the Executive’s employment under
sub-sections (iii), (iv), or (v) of this Section 4.4 unless and until the
Company provides written notice to the Executive identifying the Executive’s
alleged violation of policy, breach of this Agreement, or unacceptable work
performance and the Executive fails to cure such violation of policy, breach
of
this Agreement, or unacceptable work performance within 30 days. If the
Executive’s employment is terminated for Cause, no further compensation will be
due the Executive except for the Executive’s unpaid Base Salary owed through the
employment termination date.
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4.5 Expiration
of the Term.
The
Executive’s employment under this Agreement shall terminate automatically at the
expiration of the Term of the Agreement and no further compensation will be
due
to the Executive except for any of the Executive’s unpaid compensation under
this Agreement owed through the employment termination date.
4.6 Voluntary
Termination.
The
Executive may voluntarily terminate his employment at any time during the Term
by delivering to the Company a Notice of Termination at least 90 days in advance
of the date of termination (a “Voluntary
Termination”).
A
Voluntary Termination in compliance with this Section 4.6 shall not be
considered a breach of this Agreement. The Company may shorten the notification
period under this Section 4.6 by terminating the Executive for Cause. If the
Executive’s employment is terminated under this Section 4.6, no further
compensation will be due the Executive except for the Executive’s unpaid Base
Salary owed through the employment termination date.
4.7 Notice
of Termination.
Any
termination of employment under this Agreement by the Company or the Executive
requiring a notice of termination shall require delivery of a written notice
by
one party to the other party (a “Notice
of Termination”).
A
Notice of Termination must indicate the specific termination provision of this
Agreement relied upon and the date of termination. It must also set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
such termination, other than in the event of a Voluntary Termination or
termination without Cause. The date of termination specified in the Notice
of
Termination shall comply with the time periods required under this Article
IV,
and may in no event be earlier than the date such Notice of Termination is
delivered to or received by the party getting the notice. If the Executive
fails
to include a date of termination in any Notice of Termination he delivers,
the
Company may establish such date in its sole discretion.
4.8 Resignations.
Upon
ceasing to be an employee of the Company for any reason, the Executive agrees
to
immediately tender written resignations to the Company with respect to all
officer and director positions he may hold at that time with the Company or
any
of its parents, subsidiaries, or affiliated companies.
X. XXXXXXXXX
BENEFITS
5.1 Severance
Benefits Applicable Only to Termination Without Cause.
If at
any time during the Term the Executive’s employment with the Company is
terminated pursuant to Section 4.3, the Executive shall be entitled to the
following only:
(a) any
unpaid Base Salary and accrued unpaid vacation then owing through the date
of
termination.
(b) a
one-time lump sum severance payment in an amount equal to 90 days of the
Executive’s Base Salary. The lump sum severance payment shall be paid within 60
days after the date of termination; provided,
however,
that
such payment shall be delayed until the first day of the seventh month following
the date of termination if the payment would otherwise be expected to trigger
imposition of the additional tax under Section 409A.1
1 For
purposes of this Agreement, “Code”
shall
mean the Internal Revenue Code of 1986, as amended and “Section
409A”
shall
mean Section 409A of the Code and regulations promulgated thereunder (and any
similar or successor federal or state statute or regulations).
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5.2 Release.
The
Company’s obligation to pay or provide, within 60 days after the date of
termination, any benefits to the Executive in Section 5.1(b) or Section 5.1(c)
is expressly subject to the requirements and pre-conditions that: (a) within
the
60 day period after the date of termination, the Executive signs a release
agreement (“Release Agreement”) that the Company will provide and that is in a
form acceptable to the Company in which Executive releases any possible claims
against the Company and all of its parents, divisions, subsidiaries, affiliates,
and related companies, and their present and former agents, employees, officers,
directors, attorneys, stockholders, plan fiduciaries, successors, and assigns;
and (b) within the 60 day period after the date of termination, any revocation
period in the Release Agreement (if any) has expired without Executive’s
revocation. If either (a) or (b) of this Section 5.2 does not occur within
the
60 day period after the date of termination, the Executive will forfeit all
rights to any payments or benefits provided for under Section 5.1(b) and/or
Section 5.1(c).
5.3 Other
Benefits.
Except
as expressly provided otherwise in this Article V, the provisions of this
Agreement shall not affect the Executive’s participation in, or terminating
distributions and vested rights under, any pension, profit-sharing, insurance
or
other employee benefit plan to which the Executive is entitled pursuant to
the
terms of such plans, or expense reimbursements he is otherwise entitled to
under
Section 3.6.
5.4 Adjustments
Due to Excise Tax.
(a) If
it is
determined that any amount or benefit to be paid or payable to the Executive
under this Agreement or otherwise in conjunction with his employment (whether
paid or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise in conjunction with his employment) would give rise
to
liability of the Executive for the excise tax imposed by Code Section 4999,
as
amended from time to time, or any successor provision (the “Excise
Tax”),
then
the amount or benefits payable to the Executive (the total value of such amounts
or benefits, the “Payments”)
shall
be reduced to the extent necessary so that no portion of the Payments to the
Executive is subject to the Excise Tax.
(b) In
the
event it is determined that the Excise Tax may be imposed on the Executive
prior
to the possibility of any reductions being made pursuant to Section 5.4(a),
the
Company and the Executive agree to take such actions as they may mutually agree
in writing to take to avoid any such reductions being made or, if such reduction
is not otherwise required by Section 5.4(a), to reduce the amount of Excise
Tax
imposed.
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VI. PROTECTIVE
PROVISIONS
6.1 Restriction
on Competition.
This
Agreement incorporates by reference Section 6.14 of the Merger Agreement.
Executive agrees to comply with the terms of Section 6.14 of the Merger
Agreement.
6.2 No
Solicitation.
This
Agreement incorporates by reference Section 6.15 of the Merger Agreement.
Executive agrees to comply with the terms of Section 6.15 of the Merger
Agreement.
6.3 Confidential
Information.
During
the period of the Executive’s employment with the Company and at all times
thereafter, the Executive shall hold in secrecy for the Company all Confidential
Information2
that may
come to his knowledge, may have come to his attention or may have come into
his
possession or control while employed by the Company (or otherwise performing
services for any affiliated company). Notwithstanding the preceding sentence,
the Executive shall not be required to maintain the confidentiality of any
Confidential Information which (a) is or becomes available to the public or
others in the industry generally (other than as a result of disclosure or
inappropriate use, or caused, by
the
Executive in violation of this Section 6.3) or (b) the Executive is
compelled to
disclose under any applicable laws, regulations or directives of any government
agency, tribunal or authority having jurisdiction in the matter or under
subpoena. Except as expressly required in the performance of his duties to
the
Company under this Agreement, the Executive shall not use for his own benefit
or
disclose (or permit or cause the disclosure of) to any Person,3
directly
or indirectly, any Confidential Information unless such use or disclosure has
been specifically authorized in writing by the Company in advance. During the
Executive’s employment and as necessary to perform his duties under
Section 1.2, the Company will provide and grant the Executive access to the
Confidential Information. The Executive recognizes that any Confidential
Information is of a highly competitive value, will include Confidential
Information not previously provided the Executive and that the Confidential
Information could be used to the competitive and financial detriment of the
Company or its affiliates if misused or disclosed by the Executive. The Company
promises to provide access to the Confidential Information only in exchange
for
the Executive’s promises contained herein, expressly including the covenants in
Sections 6.1, 6.2 and 6.4.
2 For
purposes of this Agreement, “Confidential
Information”
shall
include trade secrets and includes information acquired by the Executive in
the
course and scope of his activities under this Agreement, including information
acquired from third parties, that (i) is not generally known or disseminated
outside the Company or its affiliates (such as non-public information), (ii)
is
designated or marked by the Company or any of its affiliates as “confidential”
or reasonably should be considered confidential or proprietary, or (iii) the
Company or any of its affiliates indicates through its policies, procedures,
or
other instructions should not be disclosed to anyone outside of the Company
or
any of its affiliates. Without limiting the foregoing definitions, some examples
of Confidential Information under this Agreement include (a) matters of a
technical nature, such as scientific, trade or engineering secrets, “know-how”,
formulae, secret processes, inventions, and research and development plans
or
projects regarding existing and prospective customers and products or services,
(b) information about costs, profits, markets, sales, customer lists, customer
needs, customer preferences and customer purchasing histories, supplier lists,
internal financial data, personnel evaluations, non-public information about
medical devices or products of the Company or any of its affiliates (including
future plans about them), information and material provided by third parties
in
confidence and/or with nondisclosure restrictions, computer access passwords,
and internal market studies or surveys and (c) and any other information or
matters of a similar nature.
3
For
purposes of this Agreement, “Person” shall
include individuals or entities such as corporations, partnerships, companies,
firms, business organizations or enterprises, and governmental or
quasi-governmental bodies.
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6.4 Inventions.
(a) The
Executive shall promptly and fully disclose to the Company any and all ideas,
improvements, discoveries and inventions, whether or not they are believed
to be
patentable (“Inventions”),
that
the Executive conceives of or first actually reduces to practice, either solely
or jointly with others, during the Executive’s employment with the Company or
any of its affiliates, and that relate to the business now or thereafter carried
on or contemplated by the
Company or any of its affiliates or
that
result from any work performed by the Executive for the Company or any of its
affiliates.
(b) The
Executive acknowledges and agrees that all Inventions shall be the sole and
exclusive property of the Company (or its appropriate affiliate) and are hereby
assigned to the Company (or its appropriate affiliate). During the term of
the
Executive’s employment with the Company (or any of its affiliates) and
thereafter, whenever requested to do so by the Company, the Executive shall
take
such action as may be requested to execute and assign any and all applications,
assignments and other instruments that the Company shall deem necessary or
appropriate in order to apply for and obtain Letters Patent of the United States
and/or of any foreign countries for such Inventions and in order to assign
and
convey to the Company (or any of its affiliates) or their nominees the sole
and
exclusive right, title and interest in and to such Inventions.
(c) The
Company acknowledges and agrees that the provisions of this Section 6.4 do
not
apply to an Invention: (i) for which no equipment, supplies, or facility of
the
Company of any of its affiliates or Confidential Information was used; (ii)
that
was developed entirely on the Executive’s own time and does not involve the use
of Confidential Information; (iii) that does not relate directly to the business
of the Company or any of its affiliates or to the actual or demonstrably
anticipated research or development of the Company or any of its affiliates;
and
(iv) that does not result from any work performed by the Executive for the
Company or any of its affiliates.
6.5 Return
of Documents and Property.
Upon
termination of the Executive’s employment for any reason, the Executive (or his
heirs or personal representatives) shall immediately deliver to the Company
(a) all documents and materials containing Confidential Information
(including without limitation any “soft” copies or computerized or electronic
versions thereof) or otherwise containing information relating to the business
and affairs of the
Company or any of its affiliates
(whether
or not confidential), and (b) all other documents, materials and other
property belonging to the
Company or any of its affiliates that
are
in the possession or under the control of the Executive.
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6.6 Reasonableness;
Remedies.
The
Executive acknowledges that each of the restrictions set forth in this Article
VI are reasonable and necessary for the protection of the Company’s business and
opportunities (and those of its affiliates) and that a breach of any of the
covenants contained in this Article VI would result in material irreparable
injury to the Company and its affiliates for which there is no adequate remedy
at law and that it will not be possible to measure damages for such injuries
precisely. Accordingly, the Company and its affiliates shall be entitled to
the
remedies of injunction and specific performance, or either of such remedies,
as
well as all other remedies to which the
Company or any of its affiliates
may be
entitled, at law, in equity or otherwise, without the need for the posting
of a
bond or by the posting of the minimum bond that may otherwise be required by
law
or court order.
6.7 Extension;
Survival.
The
Executive and the Company agree that the time periods identified in this Article
VI will be stayed, and the Company’s obligation to make any payments or provide
any benefits under Article V shall be suspended, during the period of any breach
or violation by the Executive of the covenants contained herein. The parties
further agree that this Article VI shall survive the termination or expiration
of this Agreement for any reason. The Executive acknowledges that his agreement
to each of the provisions of this Article VI is fundamental to the Company’s
willingness to enter into this Agreement and for it to provide for the severance
and other benefits described in Article V, none of which the Company was
required to do prior to the date hereof. Further, it is the express intent
and
desire of the parties for each provision of this Article VI to be enforced
to
the fullest extent permitted by law. If any part of this Article VI, or any
provision hereof, is deemed illegal, void, unenforceable or overly broad
(including as to time, scope and geography), the parties express desire is
that
such provision be reformed to the fullest extent possible to ensure its
enforceability or if such reformation is deemed impossible then such provision
shall be severed from this Agreement, but the remainder of this Agreement
(expressly including the other provisions of this Article VI) shall remain
in
full force and effect.
VII. MISCELLANEOUS
7.1 Notices.
Any
notice required or permitted under this Agreement shall be given in writing
and
shall be deemed to have been effectively made or given if personally delivered,
or if sent via U.S. mail or recognized overnight delivery service or sent via
confirmed e-mail or facsimile to the other party at its address set forth below
in this Section 7.1, or at such other address as such party may designate
by written notice to the other party hereto. Any effective notice hereunder
shall be deemed given on the date personally delivered, three business days
after mailed via U.S. mail or one business day after it is sent via overnight
delivery service or via confirmed e-mail or facsimile, as the case may be,
to
the
following address:
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If
to the Company:
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Xxxxxxx
X. Xxxxx
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Vice
President and General Counsel
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Orthofix
International, N.V.
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Huntersville
Business Park
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00000
Xxxxxx Xxx., Xxxxx 000
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Xxxxxxxxxxxx,
XX 00000
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Telephone
No.: (000) 000-0000
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Facsimile
No.: (000) 000-0000
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E-mail:
xxxxxxxx@xxxxxxxx.xxx
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If
to the Executive:
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At
the Executive’s most recent address on file with the
Company
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7.2 Severability.
If an
arbitrator or a court of competent jurisdiction determines that any term or
provision hereof is void, invalid or otherwise unenforceable, (a) the
remaining terms and provisions hereof shall be unimpaired and (b) such
arbitrator or court shall replace such void, invalid or unenforceable term
or
provision with a term or provision that is valid and enforceable and that comes
closest to expressing the intention of the void, invalid or unenforceable term
or provision. For the avoidance of doubt, the parties expressly intend that
this
provision extend to Article VI of this Agreement.
7.3 Entire
Agreement.
This
Agreement represents the entire agreement of the parties with respect to the
subject matter hereof and shall supersede any and all previous contracts,
arrangements or understandings between the Company and the Executive relating
to
the Executive’s employment by the Company, expressly including the Prior
Agreement, which Prior Agreement is hereby terminated in its entirety and of
no
further force and effect. The Executive expressly acknowledges that he has
no
further rights, and hereby waives or forfeits any and all rights he may have
or
may have had, under the Prior Agreement as a result of its termination hereby,
and the Company shall not have any obligation to make any payments or satisfy
any other liability to him thereunder. In the event of any conflict between
this
Agreement and any other agreement between the Executive and the Company, this
Agreement shall control.
7.4 Amendment; Modification.
Except
for changes in Base Salary, and adjustments with respect to Incentive
Compensation, made as provided in Article II, this Agreement may be amended
at
any time only by mutual written agreement of the Executive and the Company;
provided,
however,
that,
notwithstanding any other provision of this Agreement to the contrary, if
any
provision of this Agreement contravenes the final regulations or regulations
anticipated to be promulgated under Section 409A or any other guidance from
the
United States Department of Treasury with respect to Section 409A, the Company
may reform this Agreement or any provision thereof (including,
without limitation, an amendment instituting
a six-month waiting period before
a
distribution) or
otherwise incorporate the necessary provisions to maintain to the maximum extent
practicable the original intent of the provision without violating the
provisions of Section 409A to the extent that the Company, in its reasonable
discretion, shall determine.
7.5 Representations.
The
Executive hereby represents and warrants to the Company that (i) the execution,
delivery and performance of this Agreement by the Executive do not and shall
not
conflict with, breach, violate or cause a default under any contract, agreement,
instrument, order, judgment or decree to which the Executive is a party or
by
which he is bound, and (ii) upon the execution and delivery of this Agreement
by
the Company, this Agreement shall be the valid and binding obligation of the
Executive, enforceable in accordance with its terms. The Executive hereby
acknowledges and represents that he has consulted with legal counsel regarding
his rights and obligations under this Agreement and that he fully understands
the terms and conditions contained herein.
10
7.6 Governing
Law; Jurisdiction.
This
Agreement shall be construed, interpreted, and governed in accordance with
the
laws of the Commonwealth of Massachusetts without regard to any provision of
that Commonwealth’s rules on the conflicts of law that might make applicable the
law of a jurisdiction other than that
of the
Commonwealth of Massachusetts.
Except
as
otherwise provided in Section 7.2, all actions or proceedings arising out of
this Agreement shall exclusively be heard and determined in state or federal
courts in the Commonwealth of Massachusetts having appropriate jurisdiction.
The
parties expressly consent to the exclusive jurisdiction of such courts in any
such action or proceeding and waive any objection to venue laid therein or
any
claim for forum nonconveniens.
7.7 Successors.
This
Agreement shall be binding upon and inure to the benefit of, and shall be
enforceable by the Executive, the Company, and their respective heirs,
executors, administrators,
legal
representatives,
successors, and assigns. Both parties agree that there are no third party
beneficiaries to this Agreement other than as expressly set forth in this
Section 7.7.
7.8 Nonassignability.
Neither
this Agreement nor any right or interest hereunder shall be assignable by the
Executive, his beneficiaries, dependents or legal representatives without the
Company’s prior written consent; provided,
however,
that
nothing in this Section 7.8 shall preclude (a) the Executive from designating
a
beneficiary to receive any benefit payable hereunder upon his death or (b)
the
executors, administrators or other legal representatives of the Executive or
his
estate from assigning any rights hereunder to the Person(s) entitled
thereto.
7.9 Waiver.
No term
or condition of this Agreement shall be deemed to have been waived, nor shall
there be any estoppel against the enforcement of any provision of this
Agreement, except by written instrument of the party charged with such waiver
or
estoppel. No such written waiver shall be deemed a continuing waiver unless
specifically stated therein, and each such waiver shall operate only as to
the
specific term or condition waived and shall not constitute a waiver of such
term
or condition for the future or as to any act other than that specifically
waived.
7.10
Construction.
The
headings of articles or sections herein are included solely for convenience
of
reference and shall not control the meaning or interpretation of any of the
provisions of this Agreement. References to days found herein shall be actual
calendar days and not business days unless expressly provided
otherwise.
7.11
Counterparts.
This
Agreement may be executed by any
of
the
parties hereto in counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same
instrument.
11
7.12
Effectiveness.
This
Agreement shall be effective upon the Effective Date when signed by the
Executive and the Company.
7.13 Survival.
Except
as provided in Section 1.3 with respect to expiration of the Term, Articles
VI and VII shall survive the termination or expiration of this Agreement for
any
reason.
12
IN
WITNESS WHEREOF,
the
parties have executed this Agreement as of the Effective Date.
|
BLACKSTONE
MEDICAL, INC.
|
EXECUTIVE
|
|||
|
/s/
Xxxxxxx X. Xxxxx
|
||||
|
/s/
Xxxxxxx X. Xxxxx
|
||||
|
Name:
|
Xxxxxxx
X. Xxxxx
|
|||
|
Title:
|
President
|
|||
13
