UroMed Corporation
EMPLOYMENT AGREEMENT
The parties to this agreement, dated as of March 17, 1997, are UroMed
Corporation, a Massachusetts corporation (the "EMPLOYER"), and Xxxx X. Xxxxx,
of Boston, Massachusetts (the "EMPLOYEE").
The Employer wishes to retain their services of the Employee in order to
avail itself of the Employee's executive and managerial skills in, among other
things, strategic decision-making, developing marketing and public relations
approaches, continuing and expanding existing and developing new lines of
business and raising new debt and equity capital, and the Employee is willing to
provide his services to the Employer on the terms set forth herein;
The parties accordingly agree as follows:
1. EMPLOYMENT. The Employer hereby employs the Employee, and the
Employee hereby accepts employment, upon the terms and subject to the conditions
hereinafter set forth.
2. DUTIES. The Employee shall be employed as President, Chief Executive
Officer, and (if he is at the relevant time a Director of the Employer) Chairman
of the Board of the Employer. As Chairman of the board, the Employee shall
preside over meetings of the Employer's Board of Directors. As President and
Chief Executive Officer, subject to the general direction and control of the
Employer's Board of Directors, Employee shall supervise the Employer's other
executive officers, and guide and participate in the process of formulating and
monitoring the Employer's performance of the Employer's annual budget and
strategic business plan and undertake such other activities as the Board shall
reasonably request from time to time. Employee shall use his best efforts,
including the highest standards of professional competence and integrity, and
shall devote his full business time and effort, in and to his employment
hereunder, and shall not engage in any other non-charitable business activity
other than advisory or directorship positions (not inconsistent with Section
5(b)) and passive investments that collectively do not interfere with hid
say-to-day acquittal of his responsibilities hereunder.
3. TERM.
(a) GENERAL. The initial term of employment of the Employee
hereunder shall commence on the March 17, 1997 (as defined in Section 7 hereof)
and continue until the second anniversary of the date hereof, and may be
extended thereafter for additional terms only by the written agreement of the
Employer and the Employee; provided, that the employment of the Employee
hereunder may terminate prior to the expiration of such term in accordance with
the provisions of subsections (b) or (c) below.
(b) DEATH OR DISABILITY. Employee's employment hereunder shall
terminate upon the death of the Employee during the term of his employment
hereunder or, at the option of the Employer and upon sixty (60) days notice to
the Employee, in the event of the Employee's disability. The Employee shall be
deemed disabled if an independent medical doctor (selected by the Employer's
health or disability insurer) certifies that the Employee has for six (6)
months, consecutive or non-consecutive, in any twelve-month period been disabled
in a manner that seriously interferes with his ability to perform his
responsibilities under this agreement, or if Employee refuses to submit to
medical examination reasonably requested hereunder for the purpose of
determining whether Employee is disabled for these purposes.
(c) FOR CAUSE. Employee's employment hereunder shall terminate for
"Cause" effective immediately upon written notice by the Employer to the
Employee if the Employee shall (i) commit an unlawful or criminal act involving
moral turpitude, (ii) fail to perform or adhere to written directions delivered
to the Employee by the Employer's Board of Directors (which are not unlawful to
perform or to adhere to), or (iii) commit a material breach of any of the
covenants, terms and provisions hereof that continues uncured for more than
thirty (30) days after receipt by the Employee of written notice from the
Employer's Board of Directors of such breach of failure.
(d) SEVERANCE PAY. The Employee shall not be entitled to any
severance pay or other compensation upon termination of his employment hereunder
except for:
(i) any portion of his Base Salary (as defined below) accrued
but unpaid from the last monthly payment date to the date of
termination;
(ii) expense reimbursements under Section 4(d) hereof for
expenses incurred in the performance of his duties hereunder prior
to termination; and
(iii) if Employee's employment with the Employer is terminated
by the Employer other than for Cause, Employer shall pay to
Employee a cancellation payment in a lump sum, and without regard
to mitigation, in an amount equal to the Base Salary (as defined
below) that would be required to be paid to Employee with respect
to the remainder of the term of employment described in Section
3(a).
In addition to the foregoing, at such time as the Employee ceases to be a
full-time employee of the Employer, whether during or after the term of
employment set forth in Section 3(a), for any reason or for no reason, unless
such event occurs because the Employee's employment is terminated by the
Employer for Cause, Employer shall pay to Employee a severance payment, without
regard to mitigation, in an aggregate amount equal to six (6) months' Base
Salary, at the Base Salary rate in effect immediately preceding such event.
Such severance shall be paid in six (6) equal monthly installments paid in
arrears on the last day of each calendar month.
(e) SURVIVAL OF PROVISIONS. Notwithstanding anything otherwise
provided herein, the provisions of Sections 3(d) and 5 (and only Sections 3(d)
and 5) shall survive the termination of this agreement and of the Employee's
employment with the Employer.
4. COMPENSATION AND BENEFITS. In consideration for the services of the
Employee hereunder, the Employer shall compensate the Employee as set out in
this Section 4. The Employee shall have no rights to any compensation except as
specifically set forth herein.
(a) BASE SALARY. The Employer shall pay the Employee, on the
fifteenth (15th) and last day of each calendar month in arrears, as base salary
(the "Base Salary") with respect to each calendar month of the Employee's
employment thereunder (prorated to reflect any partial month). The Base Salary
will be paid initially at an annual rate of One Hundred Sixty Thousand Five
Hundred Dollars ($160,500). Employer shall review and evaluate the Base Salary
at least annually, and may increase (but not decrease) the Base Salary, although
it makes no representation that it intends to do so.
(b) INCENTIVE BONUS. The Employee will be eligible to receive annual
incentive bonus payments upon achievement of certain performance targets
pursuant to an annual incentive bonus plan if and when adopted by the Employer's
Board of Directors for the Employee. The performance targets, bonus amounts and
other terms of the bonus plan will be determined in the discretion of the Board
of Directors.
(c) FRINGE BENEFITS; INSURANCE. Employee shall be entitled to
participate from time to time in all fringe benefits made available to senior
executive personnel of the employer. Such fringe benefits shall, in any event,
include accident, life disability, dental, and health insurance.
(d) REIMBURSEMENT OF EXPENSES. The Employer shall reimburse the
Employee for all ordinary and necessary expenses incurred by the Employee in the
performance of his duties hereunder. The Employee shall comply with such budget
limitations and approval and reporting requirements with respect to expenses as
the Employer may establish from time to time.
(e) VACATION. The Employee shall be entitled to four (4) weeks of
paid vacation per calendar year of employment. Vacations shall be taken at
reasonable times.
5. EMPLOYEE CONDUCT PRIOR TO AND FOLLOWING TERMINATION OF EMPLOYMENT AND
DIRECTORSHIP
(a) CONFIDENTIALITY. The Employee recognizes and acknowledges that
the Proprietary Information (as defined below) is a valuable, special, and
unique asset of the Employer and its affiliates. The Employee shall not, during
or after his term of employment or the period in which he is a director of the
Employer, disclose any of the Proprietary Information to any person, firm,
corporation, association, or any other entity for any reason or purpose
whatsoever, directly or indirectly, except as may be required pursuant to his
employment hereunder, until the earlier of (i) two (2) years after the
Termination Date (as defined below) or (ii) such time as such Proprietary
Information becomes publicly available
other than as a consequence of the breach by the Employee of his
confidentially obligations hereunder. For purposes hereof, the "TERMINATION
DATE" is the date of the alter to occur of the Employee ceasing to be an
employee of the Employer or Employee ceasing to be a director of the Employer.
(b) NON-COMPETITION AGREEMENT. Until one (1) years after the
Termination Date, the Employee will not (i) engage directly or indirectly (alone
or as a shareholder, partner, officer, director, employee, or consultant of or
to any other business organization) in any business activities which relate to
the research, development, manufacture, or marketing of products that directly
compete with products actively being researched, developed, manufactured, or
marketed by the Employer (or as to which the Employer has formulated specific
written research or development plans that have been reviewed by or submitted to
the Employer's Board of Directors) as of the time of termination of the
Employee's employment (the "EMPLOYER'S INDUSTRY") or (ii) divert or seek to
divert to any competitor of the Employer in the Employer's Industry any
customer of the Employer. Until two (2) years after the Termination Date, the
Employee will not solicit or encourage any officer, employee or consultant of or
to the Employer to leave its employ. The parties hereto acknowledge and agree
that the Employee's non-competition obligations hereunder will not preclude the
Employee from owning less than five percent (5%) of the common stock of any
corporation having business activities in the Employer's Industry. The Employee
will continue to be bound by the provisions of this Section 5(b) until their
expiration and shall not be entitled to any compensation from the Employer with
respect thereto. If at any time the provisions of this Section 5(b) shall be
determined to be invalid or unenforceable, by reason of being vague or
unreasonable as to area, duration or scope of activity, this Section 5(b) shall
be considered divisible and shall become and be immediately amended to apply
only to such area, duration and scope of activity as shall be determined to be
reasonable and enforceable by the court or other body having jurisdiction over
the matter; and the Employee agrees that this Section 5(b) as so amended shall
be valid and binding as though any invalid or unenforceable provision had not
been included herein.
(c) ASSIGNMENT OF RIGHT TO PROPRIETARY INFORMATION AND INVENTIONS.
The Employee recognizes that the Employee now possesses and will possess during
his employment by and directorship of the Employer information that has
commercial value in the Employer's business ("PROPRIETARY INFORMATION"), such as
information regarding customers, pricing policies, methods of operation,
proprietary equipment and other hardware, software, sales, products, profits,
costs, markets, and key personnel, and including without limitation information
and inventions created directly or indirectly by the Employee in performing his
services hereunder, or made known to the Employee during the term hereof. The
Employee acknowledges that such Proprietary Information shall include, without
limitation, inventions, product improvements, financial , technical or sales
strategies, forecasts, product ideas, formulas, processes, copyrightable and/or
patentable materials and/or concepts, schematics, techniques, market research
and/or customer lists which the Employee may create or be exposed to while
employed hereunder. Notwithstanding the foregoing, the Proprietary Information
shall not include any information not relevant to the Employer's Industry if
Employee first learns of or invents (or otherwise first come to possess) such
information while is a director and not an employee of the Employer. The
Employee expressly agrees that all Proprietary information and rights thereto
shall be and remain the sole and exclusive property of the Employer, and the
Employee hereby without
further consideration, unconditionally, exclusively and irrevocable assigns
to the Employer, royalty free, all of his right, title and interest in and to
such Proprietary Information. Notwithstanding the foregoing, the Employee
shall execute and deliver such confirmatory instruments of this assignment as
the Employer may request including, without limitation, applications for
patent and/or copyright registration . The Employee agrees that the
foregoing assignments are a material term of his employment relationship with
the Employer and that his Base Salary includes sufficient consideration
therefor.
(d) RETURN OF MATERIALS. The Employee agrees that upon the
Termination Date, however the termination's of his employment and directorship
may occur and whether or not during the term of this agreement, the Employee
will promptly return to the Employer all files, notes, lists, rolodex cards,
credit cards, computer disks, recordings, print-outs, and drawings (including
without limitation, any materials reflecting or containing Proprietary
Information) that are under the control or in the possession of the Employee and
that relate to the operation and business of the Employer, and the like. The
Employee shall not be entitled to retain any duplicates or summaries of or notes
on any of the foregoing to the extent such materials represent, embody, or
otherwise set out or include Proprietary Information; otherwise the Employee
shall be entitled to retain for his files such duplicates, summaries, or notes.
6. GENERAL.
(a) NOTICES. All notices and other communications hereunder shall be
in writing or by written telecommunication, and shall be deemed to have been
duly given if delivered personally or if mailed by certified mail, return
receipt requested, postage prepaid, or if sent by nationally recognized
reputable overnight courier (e.g., Federal Express), or by written
telecommunication confirmed by on of the other methods of giving notice
hereunder, to the relevant address et forth below, or to such other address as
the recipient of such notice or communication shall have specified to the other
party hereto in accordance with this 6(a).
If to the Employee, to:
Xxxx X. Xxxxx
000 Xxxxxx Xxxxxx, #0
Xxxxxx, XX 00000
If to the Employee, to:
UroMed Corporation
00X Xxxxxx
Xxxxxxx, XX 00000
(b) EQUITABLE REMEDIES. Each of the parties hereto acknowledges
and agrees that upon any breach by the Employee of his obligations under Section
5 hereof, the Employer will have o adequate remedy at law, and accordingly will
be entitled to specific performance and other appropriate injunctive and
equitable relief, in addition to any other remedies that it may have.
(c) SEVERABILITY. IF any provision of this agreement is or
becomes invalid, illegal or unenforceable in any respect under any law, the
validity, legality and enforceability of the remaining provisions hereof shall
not in any way be affected or impaired.
(d) ENTIRE AGREEMENT, AMENDMENT, WAIVERS. This agreement
contains the entire understanding of the parties, supersedes all prior
agreements and understandings relating to the subject matter hereof and shall
not be amended except by a written instrument hereafter signed by each of the
parties hereto. No delay or omission by either party hereto in exercising any
right, power or privilege hereunder shall impair such right, power or privilege,
nor shall any single or partial exercise of any such right, power or privilege
preclude any further exercise thereof for the exercise of any other right, power
or privilege.
(e) ASSIGNS. This agreement shall be binding upon and inure to
the benefit of the heirs and successors of each of the parties hereto.
(f) GOVERNING LAW. This agreement and the performance hereof
shall be construed and governed in accordance with the law of the Commonwealth
of Massachusetts.
(g) COUNTERPARTS. This agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
7. EFFECTIVE DATE. The provisions of this agreement shall not become
effective until the date on which this agreement is executed.
IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties
hereto have caused this agreement to be duly executed as of the date and year
first above written.
UroMed Corporation
By:
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Title
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Xxxx X. Xxxxx
