EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement"), is made and entered into to
be effective as of December 1, 1999, by and between Lifef/x Networks, Inc. (the
"Company"), a Delaware corporation doing business in Massachusetts, and Xxxxx
Xxxxxxxxxx ("Executive"), an individual residing in Lincoln, Massachusetts.
The parties-hereby agree as follows:
1. Employment; Term.
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(a) The Company hereby employs Executive, and Executive hereby
accepts employment with the Company, upon the terms and conditions contained in
this Agreement. The term of Executive's employment hereunder (the "Employment
Period") shall commence on December 1, 1999 (the "Effective Date") and shall
continue for a period of two (2) years from and after the Effective Date, unless
sooner terminated as hereinafter provided.
(b) The Employment Period may be extended for two (2) successive one
year periods by mutual written agreement of the parties hereto. If either party
intends not to renew -this Agreement upon the expiration of the Employment
Period then in effect, such party shall give the other party notice of such
intention not less than thirty (30) days prior to the expiration of such
Employment Period. Failure to provide notice of such intention shall not
constitute either a renewal of this Agreement or an extension of the Employment
Period.
2. Duties.
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(a) During the Employment Period, Executive shall serve as the Chief
Technology Officer. Executive shall report directly to the Board of Directors of
the Company and to the Chief Executive Officer. Executive shall faithfully
perform for the Company the duties of Executive's office which shall include
such duties of an executive, technical, managerial or administrative nature as
may be specified and designated from time to time by the Chief Executive Officer
and the Chairman of the Board of the Company. Subject to Section 2(b) below,
Executive shall devote substantially all of Executive's business time and effort
to the performance of Executive's duties for the Company hereunder.
(b) Notwithstanding anything to the contrary contained in Section
2(a) above, and subject to the provisions of Sections 9 and 14(a) and 14(b) and
other applicable provisions hereof, Executive shall be permitted to engage as a
consultant and limited partner in the management and business activities of
Mirage Technologies, Inc. ("MTI"), as post-doctoral fellows at M.I.T. ("MTP"),
and in which Partnership Executive has been a Limited Partner since 1995, and in
addition in connection with Executive's other personal investments and affairs,
and including Advanced Instrument Systems, as further described in Section 14(b)
hereof, provided that such activities do not, individually or in the
aggregate, materially interfere or conflict with Executive's duties and
responsibilities to the Company, as reasonably determined by the Chief Executive
Officer of the Company.
3. Compensation. Commencing on December 1, 1999, the Company shall pay
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to Executive a salary at an annual rate of $250,000. The salary payable pursuant
to this Section 3 (the "Base Salary") shall be payable in accordance with the
Company's payroll practices, as in effect from time to time. In addition to
Executive's Base Salary, Executive shall be entitled to annual consideration for
a bonus based on Executive's and the Company's performance, such bonus, if any,
to be as determined by the Compensation Committee as a subcommittee of the Board
of Directors, in its sole discretion.
4. Stock Option Grant. Following the execution of this Agreement and
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subject to the approval of the Board of Directors of the Company's parent
company, Lifef/x, Inc. ("Parent"), the Company will cause Parent to grant
Executive an option (the "Option") to purchase 400,491 shares of Parent's Common
Stock, subject to the terms and conditions of Parent's stock option plan and
agreements currently under development by Parent. Twenty percent (20%) of the
Option will vest on the Effective Date and the balance will vest in equal
quarterly installments over a period of two (2) years until fully vested. The
Option exercise price shall be $3.00 per share for 300,491 shares, and fair
market value for 100,000 shares. The unvested balance of stock options shall
vest immediately in the event of the Executive's death or in the event of his
Permanent Disability, as defined herein, or in the event his employment
hereunder is terminated with the effect of the Company being obligated to pay
the Severance Compensation described in Section 7(c) hereof.
5. Expenses; Benefits.
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(a) During the Employment Period, the Company agrees to reimburse
Executive, in accordance with the Company's policies as in effect and as
modified from time to time, for all reasonable and ordinary and necessary
business expenses paid or incurred by Executive in connection with the
performance of Executive's duties for the Company hereunder; provided, however
that Executive must obtain the Company's approval prior to incurring individual
expenses exceeding $2,500 (or $5,000 in the aggregate) in any thirty (30) day
period.
(b) During the Employment Period, Executive shall be entitled to
accrue vacation at a rate of 1.25 days per month for up to three weeks (i.e.,
fifteen days) of vacation annually, which vacation shall accrue at a rate of
1.25 days per month; provided that the maximum vacation accrual that Executive
may have at any time shall be fifteen (15) days. Once the Executive has accrued
the full fifteen (15) days vacation, all vacation accruals shall cease and shall
not resume unless and until Executive uses enough vacation time to fall below
the maximum accrual, at which point Executive shall start accruing vacation
again from that date forward until the maximum is reached again.
(c) During the Employment Period, Executive shall be entitled to
participate in and enjoy the benefits of any health, life, or disability
insurance, and of any retirement, pension, or profit-sharing plans, or other
similar plan or plans which may be instituted by the Company for the benefit of
its senior executive staff employees generally, upon such terms as may be
therein provided from time to time, and as modified or
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terminated from time to time. During the initial six month period of this
Agreement, the Executive shall be reimbursed for his reasonable expenses
incurred for such fringe benefit purposes until such time as the Company has
established its own plans and policies for such purpose. As each such plan or
policy is established by the Company in its sole discretion, this reimbursement
obligation shall terminate and be of no further legal force or effect. The
failure of the Executive to satisfy any eligibility requirements of such plans
or policies, waiting periods, or other requirements shall not increase the
maximum reimbursement obligation of the Company hereunder.
(d) During the Employment Period, the Company agrees to reimburse the
Executive, in accordance with the Company's policies as in effect from time to
time, the amount of $500 per month for automobile costs and expenses incurred by
Executive in the course of the performance of his duties hereunder.
6. Termination. Executive's employment hereunder may be terminated prior
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to the expiration of the Employment Period only as follows:
(a) Automatically in the event of the death of Executive;
(b) At the option of the Company, by written notice to Executive or
Executive's personal representative in the event of the Permanent Disability (as
defined below) of Executive. As used herein, and subject to applicable law, the
term "Permanent Disability" shall mean a physical or mental incapacity or
disability which renders Executive unable to perform the essential functions of
his position, as determined by the Company, for a period of not less than one
hundred twenty (120) days in any calendar year. In the event that the Executive
resumes the performance of substantially all of his duties hereunder before the
termination of his employment under this subparagraph becomes effective, the
notice of termination shall automatically be deemed to have been revoked. No
compensation or benefits will be paid or provided to the Executive under this
Agreement on account of termination for Permanent Disability for periods
following the date when such a termination of employment is effective. The
Executive's rights under the benefit plans of the Company shall be determined
under the provisions of those plans. At the request of the Company, Executive
will submit to a medical examination by a physician acceptable to both parties
for the purpose of permitting the Company to determine whether Executive is
unable to perform the essential functions of his position;
(c) At the option of the Company, by written notice to Executive upon
the occurrence of any one or more of the following events:
(i) any action by Executive constituting breach of fiduciary
duty, fraud, embezzlement or theft in the course of Executive's employment
hereunder;
(ii) any conviction of or guilty plea or plea of nolo contendere
by Executive involving a felony or misdemeanor involving moral turpitude, and
which offense results in material harm to the Company, as determined by the
Board of Directors of the Company in its sole and reasonable discretion;
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(iii) gross neglect or willful refusal by Executive to perform
Executive's duties hereunder for a period of ten (10) days following notice
thereof by the Company;
(iv) material failure or refusal by Executive to comply with any
valid and legal directive of the Board of Directors of the Company; or
(v) a breach by Executive of any obligation under this Agreement if
the Company determines in its sole discretion that such breach is not curable
or, if curable, is not cured within thirty (30) days after written notice
thereof by the Company to Executive.
(d) At the option of Executive, by written notice to the Company at any
time:
(i) within one hundred twenty (120) days after the occurrence of a
material breach of any material obligation under this Agreement by the Company
if such breach is not curable or, if curable, is not cured within forty-five
(45) days after written notice thereof by Executive to the Company; or
(ii) within fifteen (15) days if the Company shall have failed to
pay Executive the Base Salary on its due date in accordance with Section 3 and
such failure shall not have been cured within fifteen (15) days of such failure;
or
(iii) subject to the terms and conditions of Section 4 hereof, as
the result of the Company's material failure to issue its grant of the stock
options agreed to herein; or
(iv) in the event the Executive is requested by the Company to
change the location of his regular place of employment by the Company to a
location more than forty miles distant from the City of Cambridge,
Massachusetts; or
(v) in the event the Company initiates legal proceedings pursuant
to this Agreement seeking enforcement against the Executive of the terms and
conditions of Sections 8 or 9 hereof; or
(vi) in the event Good Reason exists, such Good Reason to include
only the following two listed circumstances, and in such event the Executive's
employment with the Company may be regarded as having been constructively
terminated by the Company, and the Executive may therefore terminate his
employment for Good Reason as a result thereof, and subject to the terms and
conditions of this Agreement, thereupon become entitled to only the benefit of
Subsection 9(e)(iv), if, before the end of his Employment Period, one or more of
the following events shall occur (unless such event(s) applies generally to all
senior management of the Company or unless the Executive shall have become
Permanently Disabled):
(1) without the Executive's written consent, the assignment
to the Executive of any duties or the reduction of the Executive's duties,
either
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of which results in a significant diminution in the Executive's position or
responsibilities with the Company in effect immediately prior to such
assignment, and which is reasonably expected to continue for a period of at
least one month, or the removal of the Executive from his position and his
active and ongoing responsibilities and duties pursuant to this Agreement; or
(2) a material reduction by the Company in the kind or
level of employee benefits to which the Executive is entitled immediately prior
to such reduction with the result that the Executive's overall employee benefits
package is significantly reduced.
(e) The Company may terminate this Agreement at any time and for
any reason or for no reason, subject to the Company's obligations under Section
7(c).
7. Effect of Termination.
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(a) In the event of the Company's termination of Executive's
employment hereunder prior to the expiration of the Employment Period for any
reason, the Company shall have no liability or obligation to Executive other
than as specifically set forth in this Section 7.
(b) Upon the termination by the Company of Executive's employment
hereunder pursuant to the provisions of Section 6(a), 6(b), or 6(c) hereof, or
the termination by Executive of Executive's employment hereunder for any reason
other than as set forth in Section 6(d), Executive (or Executive's heirs or
legal representatives) shall be entitled to receive only such portion (if any)
of the Base Salary as may theretofore have accrued but be unpaid on the date of
such termination, plus any accrued and unpaid vacation pay which may be owing
through the date of termination, plus in the event of the Executive's Permanent
Disability hereunder, the Base Salary amount payable pursuant to Section 3
hereof for the period of time until the Company's disability insurance on the
Executive becomes payable, such maximum period of time in any event not to
exceed a maximum period of twelve months from the date of such disability.
(c) Upon the termination of Executive's employment hereunder
either: (i) by the Company for any reason other than pursuant to Sections 6(a),
6(b) or 6(c), including, without limitation, pursuant to Section 6(e), or (ii)
by Executive pursuant to Section 6(d), then Executive shall be entitled to
receive such portion of the Base Salary as may theretofore have accrued but be
unpaid on the date of such termination and any accrued and unpaid vacation pay
which may be owing through the date of termination, and the Company shall
continue to pay to Executive, as severance compensation (the "Severance
Compensation"), Executive's full Base Salary as provided in Section 3 above for
the unexpired period of the Employment Period set forth in Section I(a) hereof.
At the option of the Company, the Severance Compensation shall be payable (i) at
the same time as such compensation would have been paid to Executive had
Executive not been so terminated, or (ii) in one lump sum within thirty (30)
days of the termination of Executive's employment.
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(d) Upon the termination of Executive's employment hereunder for
any reason, Executive shall immediately surrender to the Company all Company
property in the possession, custody or control of Executive, including but not
limited to any computer hardware, software, computer disks and/or data storage
devices, as well as all notes, data, sketches, drawings, manuals, documents,
records, data bases, programs, blueprints, memoranda, specifications, customer
lists, financial reports, equipment and all other physical forms of expression
incorporating or containing any Confidential Information (as defined in Section
8 hereof), it being distinctly understood that all such writings, physical forms
of expression and other things are exclusive property of the Company.
8. Confidential Information and Inventions.
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(a) Executive recognizes and acknowledges that during the course of
Executive's employment with the Company, Executive shall have access to
Confidential Information. Subject to the terms and conditions of Section 2(b)
and Section 14 hereof, "Confidential Information" means all information or
material not publicly known about the Company, including, without limitation,
any such information which relates to any of its products, services or any phase
of its operations, business or financial affairs. Confidential Information
includes, but is not limited to, the following types of information and other
information of a similar nature (whether or not reduced to writing): trade
secrets, inventions, drawings, file data, documentation, diagrams,
specifications, know-how, processes, formulas, models, flow charts, software in
various stages of development, source codes, object codes, research and
development procedures, test results, marketing techniques and materials,
marketing and development plans, price lists, pricing policies, business plans,
information relating to customers and/or suppliers' identities, characteristics
and agreements, financial information and projections and employee files.
Confidential Information also includes any information described above which the
Company obtains from another party and which the Company treats and/or has an
obligation to treat as confidential or designates as Confidential Information,
whether or not owned or developed by the Company. Confidential Information shall
not include any information which is or becomes (i) generally available to the
public other than as a result of disclosure in violation of any agreement with
the Company or (ii) generally known in the industry in which the Company is or
may become involved other than as a result of disclosure in violation of any
agreement with the Company. (The term "Company," as used in this Section 8,
means not only Lifef/x Networks, Inc., but also any company, partnership or
entity which, directly or indirectly, controls, is controlled by or is under
common control with Lifef/x Networks, Inc.)
(b) Subject to the terms and conditions of Section 2(b) and Section
14 hereof, both during the Employment Period and at all times thereafter, all
Confidential Information which Executive may now possess, may obtain during or
after the Employment Period, or may create prior to the end of the Employment
Period will be held confidential by Executive, and Executive will not (nor will
Executive assist any other person to do so), directly or indirectly, (i) reveal,
report, publish or disclose such Confidential Information to any person, firm,
corporation, association or other entity for any reason or purpose whatsoever
(other than in the course of carrying out Executive's duties hereunder or as
expressly authorized by the Company), (ii) render any services to
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any person, firm, corporation, association or other entity to whom any such
Confidential Information, in whole or in part, has been disclosed or is
threatened to be disclosed by or at the instance of Executive, or (iii) use such
Confidential Information except for the benefit of the Company and in the course
of Executive's employment with the Company; provided, however that the foregoing
will not apply to the extent Executive is required to disclose any Confidential
Information by applicable law or legal process so long as Executive promptly
notifies the Company of such pending disclosure and consults with the Company
prior to such disclosure concerning the advisability of seeking a protective
order or other means of preserving the confidentiality of the Confidential
Information.
(c) Subject to the terms and conditions of Section 2(b) and Section
14 hereof, any Inventions (as defined below) in whole or in part conceived, made
or reduced to practice by Executive (either solely or in conjunction with
others) during or after the Employment Period which are made through the use of
any of the Confidential Information or any of the Company's equipment,
facilities, supplies, trade secrets or time, or which relate to the Company's
business or the Company's actual or demonstrably anticipated research and
development, or which result from any work performed by Executive for the
Company will belong exclusively to the Company and will be deemed part of the
Confidential Information for purposes of this Agreement, whether or not fixed in
a tangible medium of expression. The term "Inventions," as used herein, means
any ideas, designs, concepts, techniques, inventions and discoveries, whether or
not patentable or protectable by copyright and whether or not reduced to
practice, including, but not limited to, devices, processes, drawings, works of
authorship, computer programs, software, source codes, object codes, interfaces
and networks (and all components of the foregoing), methods and formulas
together with any improvements thereon or thereto, derivative works therefrom
and know-how related thereto.
(i) Without limiting the foregoing, any such Inventions will
be deemed to be "works made for hire" and the Company will be deemed to be the
owner thereof, provided that in the event and to the extent such works are
determined not to constitute "works made for hire" as a matter of law, Executive
hereby irrevocably assigns and transfers to the Company all right, title and
interest in and to any such Inventions, including but not limited to all related
patents, copyrights and mask works and all applications therefor and filings and
notification with respect thereto.
(ii) Executive acknowledges and agrees that he will keep and
maintain adequate and current written records (in the form of notes, sketches,
drawings or such other form(s) as may be specified by the Company) of all
Inventions made by Executive during the Employment Period or thereafter
(including but not limited to information relating to all Inventions which
belong exclusively to the Company pursuant to the provisions of this Section
8(c)), which records will be available at all times to the Company and will
remain the sole property of the Company. In the event that (A) any Invention is
made, conceived of or reduced to practice by Executive, either solely or in
conjunction with others, during the Employment Period, or (B) any Invention is
made, conceived of or reduced to practice by Executive after the Employment
Period which belongs exclusively to the Company pursuant to the provisions of
this Section 8(c),
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Executive will promptly give notice and fully disclose in writing such Invention
to the Chairman of the Board and the Board of Directors of the Company.
(iii) Executive will assist the Company (at the Company's
expense), either during or subsequent to the Employment Period, to obtain and
enforce for the Company's benefit, patents, copyrights, and mask work protection
in any country for any and all Inventions made by Executive, in whole or in
part, the rights to which belong to or have been assigned to the Company
pursuant to the provisions of Section 8(c) hereof. Executive will be compensated
for such assistance at a reasonable rate not to exceed $800 per day for time
accounted for and actually employed in such assistance. Executive agrees to
execute all applications, assignments, instruments and papers and perform all
acts as the Company or its counsel may deem necessary or desirable to obtain any
patents, copyrights or mask work protection in such Inventions and otherwise to
protect the interests of the Company therein. In the event the Company is unable
to secure Executive's signature on any document necessary to apply for,
prosecute, obtain, or enforce any patent, copyright, or other right or
protection relating to any Invention, whether due to mental or physical
incapacity or any other cause, Executive hereby irrevocably designates and
appoints the Company and each of its duly authorized officers and agents as
Executive's agents and attorney-in- fact, to act for and in Executive's behalf
and stead to execute and file any such document and to do all other lawfully
permitted acts to further the prosecution, issuance, and enforcement of patents,
copyrights, or other right or protections with the same force and effect as if
executed and delivered by Executive.
(d) Subject to the terms and conditions of Section 2(b) and Section
14 hereof, all memoranda, notes, lists, records and other documents (and all
copies thereof) constituting Confidential Information (including information
relating to all Inventions which belong exclusively to the Company pursuant to
the provisions of Section 8(c) above) made or compiled by Executive or made
available to Executive during or after the Employment Period shall be the
Company's property, shall be kept confidential in accordance with the provisions
of this Section 8 and shall be delivered to the Company at any time on request
and in any event upon the termination of Executive's employment with the Company
for any reason.
9. Covenant Against Competition. Executive covenants and agrees that:
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(a) During the Non-Compete Period (as hereinafter defined), Executive
shall not, directly or indirectly, in any Geographic Area (as hereinafter
defined): (i) engage for Executive's own account in any business competitive
with the Company Business (as hereinafter defined); (ii) render any services in
any capacity to any person or entity (other than the Company or its Affiliates)
engaged in any business competitive with the Company Business; or (iii) acquire
an interest in any person or entity engaged in any business competitive with the
Company Business (other than the Company) as a partner, shareholder, director,
officer, employee, principal, manager, member, agent, trustee, consultant or in
any other relationship or capacity; provided, however, Executive may own,
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directly or indirectly, solely as a passive investment, securities of any such
entity which are traded on any national securities exchange if Executive (A) is
not a controlling person of,
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or a member of a group which controls, such entity, and (B) does not, directly
or indirectly, own 1% or more of any class of securities of such entity.
(b) During the Non-Compete Period, Executive shall not, without the
prior written consent of the Company, directly or indirectly, on behalf of
himself or any other person or entity solicit or encourage any employee of the
Company or any of its Affiliates to leave the employment of the Company or any
of its Affiliates, or hire any employee who has left the employment of the
Company or any of its Affiliates within one year of the termination of such
employee's employment with the Company or any of its Affiliates.
(c) During any portion of the Non-Compete Period during which
Executive is not employed by the Company, Executive shall not, in any Geographic
Area, and in connection with any business competitive with the Company's
Business (as hereinafter defined), directly or indirectly, (i) solicit or
encourage any customer or client of the Company to engage the services of
Executive or any person or entity (other than the Company) in which Executive is
a partner, shareholder, director, officer, employee, principal, member, manager,
agent, trustee, consultant or engaged in any other relationship or capacity, or
(ii) accept orders or business from, or agree to provide services to, any
customer or client of the Company, on behalf of Executive or any person or
entity (other than the Company) in which Executive is a partner, shareholder,
director, officer, employee, principal, member, manager, agent, trustee,
consultant or engaged in any other relationship or capacity.
(d) If any provision of Sections 8 or 9 is held to be unenforceable
because of the scope, duration, area of its applicability or otherwise, it is
the intention of the parties that the court making such determination shall
modify such scope, duration or area, or all of them so that the provision shall
be enforceable to the greatest extent permitted under the law, and that such
provision shall then be applicable in such modified form.
(e) As used in this Agreement:
(i) "Affiliate" shall mean any entity directly or indirectly
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controlling, controlled by, or under common control with the Company and any
entity in which the Company is a general partner, member, manager or holder of
greater than a 10% common equity, partnership or membership interest.
(ii) "Company Business" shall mean the business of the Company
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as so defined at the time of the signing of this Agreement, or at the time of a
violation of this Section 9 is alleged to occur or, if such alleged occurrence
is after Executive's employment is terminated, the business of the Company at
the time such employment terminates.
(iii) "Geographic Area" shall mean the world.
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(iv) "Non-Compete Period" shall mean the period during which
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Executive is employed by the Company and for an additional period of two years
following
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the termination of Executive's employment with the Company. Such two year period
following Executive's termination of employment shall be reduced to a one year
period in the event the Executive's termination of employment by the Company
occurs for no specific reason or in the event Executive terminates his
employment with the Company for Good Reason, as defined in Section 6(d)(vi)
hereof.
(v) "Control" with respect to any person, shall mean
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possession, direct or indirect, of the power to direct or cause the direction of
the management and policies of such person, whether through the ownership of
voting securities or a partnership interest, by contract or otherwise, and for
example, including election of a majority of a board of directors of persons who
simultaneously serve on another affiliated board of directors.
10. Enforcement by Injunction. Executive acknowledges and agrees that the
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Company will be irreparably damaged if Executive fails to comply with the
provisions of Sections 8 or 9 hereof, subject to the applicable terms and
conditions of this Agreement, including Section 2(b) and Section 14 hereof.
Accordingly, in the event of such a failure to comply with the terms and
conditions of Sections 8 or 9 hereof, the Company shall be entitled to (i) an
injunction or any other appropriate decree of specific performance (without the
necessity of posting any bond or other security in connection therewith) in case
of any breach or threatened breach of Executive's covenants under Sections 8 or
9, (ii) damages in an amount equal to all compensation, profits, monies,
accruals, increments or other benefits derived or received by Executive (or any
associated party deriving such benefits including but not limited to any future
employer of Executive) as a result of any such breach of Executive's covenants
under Sections 8 or 9, and (iii) indemnification against any other losses,
damages, costs and expenses, including actual attorneys' fees and court costs,
incurred by the Company in obtaining any damages and/or injunctive relief. Such
remedies shall not be exclusive and shall be in addition to any other remedy, at
law or in equity, which the Company may have for any breach or threatened breach
of Sections 8 or 9 by Executive.
11. Notices. Any and all notices or other communications required or
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permitted to be given under any of the provisions of this Agreement shall be in
writing and shall be deemed to have been duly given when personally delivered or
mailed by first class registered mail, return receipt requested, or by
commercial courier or delivery service, or by facsimile, addressed to the
parties at the addresses set forth below their signatures hereto (or at such
other address as any party may specify by notice to all other parties given as
aforesaid).
12. Indemnification. The Company shall indemnify Executive and hold
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Executive harmless from and against any and all losses, claims, damages or
liabilities (including reasonable attorneys' fees), and all actions, claims or
proceedings in respect thereof, brought against Executive by any third party by
reason of the fact that Executive is or was a director, officer or employee of
the Company or any other business or entity for which Executive so serves at the
written request of the Company, if Executive acted, in good faith, for a purpose
which Executive reasonably believed to be in, or (in the case of service for
such other business or entity) not opposed to, the best interests of the Company
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and, in criminal proceedings, in addition, had no reasonable cause to believe
that Executive's conduct was unlawful; provided that the Company shall not be
liable under this Section 12 to the extent that any loss, claim, damage,
liability or expense is found by a court of competent jurisdiction to arise (i)
from the gross negligence or willful misconduct of Executive or (ii) out of or
relate to Executive's acts or omissions, negligent or otherwise, relating to any
of the outside business and investment activities of Executive described in
Section 2(b) above. In connection with the indemnity granted by the Company,
Executive agrees (i) to notify the Company promptly of the assertion against
Executive of any claims or the commencement of any action or proceeding for
which Executive may seek indemnity under this Agreement (provided that the
failure to so notify the Company shall not affect the Company's obligations
hereunder, except to the extent the Company is materially prejudiced by such
failure); and (ii) reasonably to cooperate with the Company and counsel selected
by the Company to represent Executive (which counsel shall be reasonably
acceptable to Executive). Expenses (including reasonable attorneys' fees and
disbursements) Executive incurs in defending any action, suit or proceeding
shall be paid by the Company from time to time promptly upon Executive's written
request in advance of the final disposition of the action, suit or proceeding
upon presentation of vouchers or other evidence of the incurrence of the expense
and upon receipt of an undertaking in writing by Executive to repay such amount
if it shall ultimately be determined that Executive is not entitled to be
indemnified thereunder.
13. Arbitration. Any dispute or controversy arising under this Agreement
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or concerning Executive's employment with the Company (including, without
limitation, any controversy as to the arbitrability of any dispute) including
but not limited to any claims arising out of Title VII of the Civil Rights Act
of 1964, the Age Discrimination in Employment Act, the Americans with
Disabilities Act, and/or Massachusetts General Laws Chapter 151B, shall be
settled exclusively by arbitration to be held in Boston, Massachusetts, before a
single arbitrator in accordance with the rules of the American Arbitration
Association then in effect relating to the arbitration of employment disputes,
provided, however, that any claims arising out of Sections 8, 9 and/or 10 of
this Agreement shall be resolved through the courts. Judgment may be entered on
the arbitrator's award in any court having jurisdiction, and the parties consent
to the jurisdiction of the Massachusetts courts for that purpose.
14. Exclusions from Sections 8 and 9; Effect on Sections 2(a) and 2(b).
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(a) Notwithstanding anything contained in Section 8 or Section 9
hereof to the contrary, the activities of Mirage Technologies Limited
Partnership and of its general partner, Mirage Technologies, Inc., and of the
Executive in connection therewith, shall not be deemed to be competitive with
the Company Business to the extent such activities are (1) based on prior
activities or intellectual properties owned by such two entities as of the date
this Agreement is signed, and including therein, but without limitation by
reference thereto, the Intellectual Property known generally as Mirada and
concerning which a patent was recently issued by the U.S. Patent and Trademark
Office, or (2) not included within the scope of the Lifef/x internet technology
related business plan of this Company, as such business plan is adopted in
writing by the Board of Directors of this Company either before or within ninety
(90) days after the date this Agreement is actually signed, and as it may be
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amended annually thereafter. In the event the Board of Directors of this Company
fails for any reason or for no reason to adopt such a business plan, such
Lifef/x business plan shall be deemed to be that plan set forth and described in
the Company's Private Placement Memorandum dated October 29, 1999, as previously
amended. In the event the Board of Directors fails to amend the business plan
for any reason or for no reason at the end of the first calendar year, the
business plan shall be that plan previously adopted pursuant to this Agreement's
terms and conditions.
(b) Subject to the terms and conditions of Sections 2(a) and 2(b) hereof,
and Section 14(a) hereof, and other applicable provisions hereof, the
Executive's personal activities and personal services in connection with MTP and
its general partner, MTI, and any other activities or personal services
performed in connection with any company or entity owned in whole or in part by,
controlled by, incubated by, started, spin off, spun out or otherwise related to
MTI and/or MTP, and in connection with Advanced Instrument System ("AIS"), which
AIS previously had a contract with Pfizer Pharmaceuticals for systems
development related to new drug compound target and selection processes, and in
connection with which Prof. Xxx Xxxxxx is in charge, and any uncompensated
limited employment at the M.I.T. Laboratory managed by Prof. Xxx Xxxxxx, shall
not be deemed to be competitive with the Company's Business in and of
themselves, and such limited permitted activities shall not by themselves alone
be deemed by the Company to be a failure by the Executive to comply with or to
constitute the breach by the Executive of this Agreement or in particular the
provisions of Section 2 hereof so long as such activities by Executive do not
interfere with Executive's availability to the Company hereunder, and his
performance of his full-time duties hereunder.
15. Miscellaneous.
-------------
(a) This writing constitutes the entire agreement of the parties with
respect to the subject matter hereof and may not be modified, amended or
terminated except by a written agreement signed by all of the parties hereto.
(b) This Agreement shall not be assignable by Executive, but it shall
be binding upon, and shall inure to the benefit of, Executive's heirs,
executors, administrators and legal representatives. This Agreement may be
assigned by the Company to any Affiliate of the Company or any successor to all
or substantially all of the Company's Lifef/x technology and shall be binding
upon and inure to the benefit of the Company and its successors and assigns.
(c) No waiver of any breach or default hereunder shall be considered
valid unless in writing, and no such waiver shall be deemed a waiver of any
subsequent breach or default of the same or similar nature.
(d) If any provision of this Agreement shall be held invalid or
unenforceable, such invalidity or unenforceability shall attach only to such
provision and shall not in any manner affect or render invalid or unenforceable
any other severable provision of this Agreement, and this Agreement shall be
carried out as if any such invalid or unenforceable provision were not contained
herein, unless the invalidity or
12
unenforceability of such provision substantially impairs the benefits of the
remaining portions of this Agreement.
(e) The section headings contained herein are for the purposes of
convenience only and are not intended to define or limit the contents of said
sections.
(f) This Agreement may be executed in two or more counterparts, all
of which taken together shall be deemed one original.
(g) This Agreement shall be deemed to be a contract under the laws of
the Commonwealth of Massachusetts and for all purposes shall be construed and
enforced in, accordance with the internal laws of said Commonwealth.
(h) This Agreement shall not confer any rights or remedies upon any
person or entity other than the parties hereto and their respective successors
and permitted assigns.
(i) The Executive acknowledges that he has consulted with counsel and
is fully aware of his rights and obligations under this Agreement.
(j) The Executive represents and warrants that his employment by the
Company as described herein shall not conflict with and will not be constrained
by any prior employment or consulting agreement or other business or investment
relationship, and that he has previously obtained all necessary work permits,
green cards, and has satisfied all other requirements of applicable law for a
Canadian citizen to be employed in the United States.
(k) During his Employment Period, the Company agrees to use its
reasonable best efforts to obtain and to pay for Directors and Officers
Liability insurance from a solvent insurer in amounts and on terms which the
Company in its sole discretion may establish from time to time, and to provide
evidence of such insurance to the Executive once in each calendar year if
requested in writing by the Executive to do so.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
Lifef/x Networks, Inc.
/s/ Xxxxx Xxxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------- -------------------------------
Xx. Xxxxx Xxxxxxxxxx Name: Xxxxxxx X. Xxxxxxx
-----------------------------
Title: CEO
----------------------------
Address:
Address: Xxxxxxx X. Xxxxxxx, CEO and Xx-Xxxxxxxxx
0 Xxxx Xxxxxx Extension Lifef/x, Inc.
Xxxxxxx, Xxxxxxxxxxxxx 00000 c/o Cambridge Technology Partners
0 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
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