Exhibit 10.26
XXXXXX XXXXXX
EMPLOYMENT AGREEMENT
This Employment Agreement is made and entered into this 26th day of
March, 2001 by and between UroMed Corporation, a Massachusetts corporation with
a principal place of business at 0000 Xxxxxxxxxx Xxxxxxx, Xxxxxxx,
Xxxxxxxxxxxxx 00000 ("UroMed" or the "Employer"), and Xxxxxx Xxxxxx, an
individual residing at 00 Xxxxxx Xxxxx, Xxxxx, Xxxxxxxxxx 00000 ("Employee").
References to UroMed or the Employer in Sections 5 through 10 hereof shall be
deemed to include any and all subsidiaries of UroMed, whether now or hereafter
existing.
1. AT WILL EMPLOYMENT. Commencing on March 27, 2001, Employee shall
become (a) a full time "at-will-employee" of UroMed with the title of Chief
Technology Officer and (b) a member of the UroMed Board of Directors. The
Employee's duties and responsibilities as Chief Technology Officer, subject to
the direction and control of and adjustment thereto as business conditions
warrant of UroMed's President and Chief Executive Officer, are set forth on the
attached Exhibit A. 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 without the consent of
UroMed's President and Chief Executive Officer. In addition to complying with
the terms and conditions hereof and the performance of the Employee job
responsibilities, Employee shall conduct him or herself in accordance with such
policies, rules and regulations as may be adopted by UroMed from time to time.
2. COMPENSATION.
(a) Employee's annual compensation shall be $175,000.00 (the "Base
Salary"); provided, however, that Employee's total annual target compensation
will be approximately $200,000 if all personal and corporate objectives are
met. Employee shall be paid on the 15th day and the last day of each calendar
month for the current month's employment. Pay shall be adjusted pro rata for
any partial week of employment and standard employer deductions shall be made
from each payment.
(b) 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 accrued but unpaid from the last
monthly payment date to the date of termination;
(ii) expense reimbursements 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 (as hereinafter defined), Employer shall
continue to pay to Employee, in accordance with the Employer's then
current payroll practices, the Employee's Base Salary until the
earlier of (A) the second anniversary of the date hereof or (B) the
date on which the Employee commences employment with any other
business organization; provided, however, if the Employee's employment
with the Employer is terminated by the Employer other than for Cause
and with less than six (6) months remaining in the original term of
this Agreement, the Employer shall continue to pay to Employee, in
accordance with the Employer's then current payroll practices, the
Employee's Base Salary until the earlier of (Y) the date that is six
(6) months after the date of termination or (Z) the date on which the
Employee commences employment with any other business organization.
(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 President and Chief Executive Officer (which
directions are not unlawful to perform or adhere to), provided that any
termination pursuant to this clause (ii) must be accompanied by evidence that a
majority of the Board of Directors has concurred in such termination, (iii)
commit a material breach of any of the covenants, terms and provisions hereof
that continues uncured for more than fifteen (15) days after receipt by the
Employee of written notice specifying such breach or failure, (iv) commit an
act of fraud, embezzlement, misappropriation or breach of fiduciary duty
against the Employer, (v) willfully fail to perform his duties hereunder and
such willful failure shall have continued for a period of fifteen (15) days
after written notice to the Employee specifying such willful failure, (vi)
commit an act of negligence in the performance of his duties hereunder, or
(vii) have, in connection with the Agreement and Plan of Merger and
Reorganization, dated as of March 26, 2001, by and among UroMed, the Employee
and the other parties thereto, or any of the transactions contemplated by
thereby, (A) made an untrue statement of a material fact or (B) failed to
disclose to UroMed a material fact or document.
(d) Relocation. The Employer agrees that a termination of the
employment of the Employee due to the Employee's refusal to relocate in
connection with the relocation by Employer of its California operations to
another location, which is more than thirty (30) miles from its current
location, shall not be deemed a termination for Cause as set forth in 2(c)
above and shall be treated pursuant to the provisions set forth in Section
2(b)(iii).
3. BONUSES, EQUITY PARTICIPATION, AND BENEFITS. Employee shall be
eligible for (a) annual bonuses under such applicable bonus program(s) as
UroMed's Board of Directors may adopt from time to time, if any; (b)
participation in such applicable employee stock option plans as may be adopted
by UroMed's Board of Directors from time to time, if any; (c) participation in
such applicable employee benefit plans as UroMed's Board of Directors may adopt
from time to time, if any and (d) four (4) weeks paid vacation each calendar
year, in accordance with the Employer's employee vacation policy in effect from
time to time.
4. TERM. As an at-will employee, Employee understands that this
Agreement and the employment hereunder may be terminated by either party hereto
at any time with or without cause. If not terminated, this Agreement shall
govern the terms of Employee's employment for a period of two (2) years at
which time the parties may (but are not obligated to) enter into a written
renewal hereof. Said two (2) year limitation shall not affect the covenants
herein that are intended to survive the Employee's employment hereunder. Annual
salary adjustments pursuant to Section 2 above shall not affect the other terms
and conditions hereof, nor shall it necessitate any written modifications
hereof.
5. ASSIGNMENT OF RIGHTS TO PROPRIETARY INFORMATION AND INVENTIONS.
Employee recognizes that UroMed possesses or will possess information which has
commercial value in UroMed's business as it has been historically conducted or
presently conducted or as it is proposed to be conducted during the term of
this Agreement, as evidenced through the business records of UroMed and its
subsidiaries and affiliates ("Proprietary Information") including without
limitation, information created, discovered or developed directly or indirectly
by Employee in connection with Employee's services hereunder or made known to
Employee during his employment 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, source codes, techniques, market research and /or
customer lists which Employee may create or be exposed to from time to time.
Employee expressly agrees, that all Proprietary Information and rights thereto
shall be and remain the sole and exclusive property of UroMed, and Employee
hereby without further consideration, unconditionally, exclusively and
irrevocably assigns to UroMed, royalty free, all of his right, title and
interest in such Proprietary Information. Notwithstanding the foregoing,
Employee shall execute and deliver such confirmatory instruments of this
assignment as UroMed may request including, without limitation, applications
for patent and/or copyright registration. Employee agrees that the foregoing
assignments are a material term of employment by UroMed and that his
compensation includes sufficient consideration therefor. Upon the termination
or expiration of Employee's employment with UroMed, Employee shall immediately
deliver to the President and Chief Executive Officer of UroMed 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) which are under the control
or in the possession of Employee and relate to the operation and business of
UroMed. Employee shall not be entitled to retain any duplicates of the
foregoing, and acknowledges that failure to comply with these requirements will
constitute criminal theft.
6. CONFIDENTIALITY. At all times during the operative term of this
Agreement and thereafter (including periods after the termination or expiration
of Employee's employment with UroMed), Employee shall keep in strictest
confidence and trust all Proprietary Information and will not use, discuss or
disclose any Proprietary Information without the prior written consent of
UroMed except when done in the course of employment, exclusively with other
UroMed employees. Further excepted from the foregoing shall be Proprietary
Information that (i) can be clearly demonstrated to have been in the public
domain prior to the date hereof or which comes into the public domain during
the operation hereof through no fault of the Employee; or (ii) can be
demonstrated to have been developed independently by Employee prior to any
involvement with UroMed. Employee agrees that his compensation hereunder
includes sufficient consideration for the foregoing covenants.
7. NON-COMPETITION.
(a) Employee agrees that throughout his employment with UroMed and for
a period of two (2) years after the expiration or termination of such
employment, Employee will not directly (as owner, partner, principal in any
entity or otherwise) or indirectly (as an employee, agent, contractor, advisor,
beneficiary or otherwise) engage in, or participate in any entity that engages
in any activity involving the development, manufacturing or marketing of any
product or service which would more likely than not (i) compete with a UroMed
product, product concept, service or service concept; or (ii) utilize any
proprietary technology being developed by UroMed unless approved in writing by
UroMed. Notwithstanding the foregoing, following the termination of the
Employee's employment with UroMed, the Employee may perform therapeutic physics
consulting services for clinical practices provided such services do not
compete with products and services offered by UroMed. Employee acknowledges
that UroMed's business is global in nature and therefore agrees that the
foregoing restrictions apply worldwide.
(b) For a period of two (2) years after the expiration or termination
of Employee's employment with UroMed, Employee shall provide UroMed with
written notice of (i) any change of Employee's residential address, and (ii)
the name, address and nature of each subsequent employment activity. Any such
notice of subsequent employment or business activity shall include Employee's
certification that such employment or activity does not violate the provisions
of this Agreement.
(c) For a period of two (2) years after the expiration or termination
of Employee's employment with UroMed, Employee agrees not to seek to persuade
any employees, consultants, directors, officers, advisory board members or
customers or suppliers of UroMed to discontinue association with UroMed or
become involved directly or indirectly in any endeavor that would more likely
than not compete with UroMed's business.
(d) Employee represents and warrants for UroMed's reliance that the
foregoing covenants in Paragraphs (a) - (c) shall not unduly impair Employee's
ability to obtain gainful employment in Employee's field subsequent to
Employee's employment by UroMed. Employee further agrees that his compensation
hereunder includes sufficient consideration for the restrictions imposed by the
foregoing covenants.
8. INVENTIONS AFTER EMPLOYMENT. Employee agrees that he shall notify
UroMed in writing of any technology, invention, discovery, concept, and/or idea
whether patentable, copyrightable or neither developed by Employee within one
(1) year after the expiration or termination of his employment with UroMed
which relates to UroMed's fields of interest or business operations as it has
been historically conducted or presently conducted or as it is proposed to be
conducted during the term of this Agreement, as evidenced through the business
records of UroMed and its subsidiaries and affiliates. ("Inventions"). UroMed
is hereby irrevocably granted the option to take an unconditional, exclusive,
irrevocable, royalty-free assignment of such Invention(s) upon written notice
mailed to Employee within thirty (30) days after UroMed's receipt of Employee's
initial notice. If UroMed duly exercises such option, Employee shall execute
and deliver such instruments of assignment therefor as UroMed may deem
necessary or advisable including, without limitations, applications for patent
and/or copyright registration. Although Employee agrees that the compensation
provided herein shall be sufficient consideration for the foregoing covenants
to assign, Employee and UroMed agree that in consideration for Employee's
execution of assignment instruments subsequent to employment by UroMed,
Employee shall be paid $1,000.00 upon delivery to UroMed thereof. The Employee
agrees that after the one (1) year period referenced above and until the date
that is the second anniversary from the one (1) year period referenced above,
the Employee will negotiate in good faith with the Employer for a period of
ninety (90) days in order to assign any Inventions to UroMed and during such
ninety (90) day period the Employee will not enter into any such negotiations
with any other third parties.
9. EMPLOYEE REPRESENTATIONS. Employee represents and warrants for
UroMed's reliance that (i) this Agreement does not conflict with any other
agreement, promise and/or commitment undertaken by Employee which could
prohibit or impair the performance of Employee's obligations hereunder; (ii)
Employee has not and shall not disclose to UroMed, its officers, directors,
employees or agents any proprietary information of another individual or
company prohibiting such disclosure; (iii) Employee's compliance with the
confidentiality, non-competition and other provisions of this Agreement will
not materially impair Employee's ability to earn a living outside of UroMed's
employment in his field; and (iv) all information on Employee's education, past
work experience and other qualifications presented to UroMed are accurate,
complete and not misleading.
10. MISCELLANEOUS.
(a) This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts.
(b) Employee hereby consents to submit to the jurisdiction of the
courts in the place where UroMed's principal place of business is located at
the time any action is brought and agrees to accept service of process by
registered mail or the equivalent delivered to his last known address.
(c) Employee agrees that any breach of Section 3, 5, 6, 7, or 8 will
result in irreparable damage to Employer and therefore consents that in
addition to recovery of provable damages and attorneys' fees UroMed will be
entitled to enjoin any such breach in any competent court.
(d) If any provision in this Agreement is found unenforceable, it
shall not affect any other provisions hereof. If any provisions in this
Agreement is determined to be excessively broad or overreaching, it shall be
construed by limiting it so as to be enforceable to the extent compatible with
applicable law.
(e) This Agreement shall bind and inure to the benefit of UroMed and
any successor of UroMed by reorganization, merger, consolidation, liquidation,
sale or other assignee of UroMed's business or assets.
(f) The waiver by any party of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent
breach.
(g) Employee acknowledges that this Agreement constitutes the complete
agreement between the parties and all offer letters, negotiations and other
agreements are subsumed and extinguished hereby. Except for salary adjustment
and UroMed's promulgation of employee rules and regulations from time to time,
no modification or amendment hereof shall be valid or enforceable unless it is
in writing and executed and delivered by the parties
(h) Employee agrees to indemnify and hold UroMed's officers,
directors, shareholders, agents and employees personally harmless from and
against any and all suits or causes of action Employee may ever have against
UroMed.
(i) Any cause of action or matter in dispute hereunder or otherwise
relating to Employee's relationship with UroMed, whether or not arising during
the term of this Agreement, is hereby waived unless judicial proceedings are
initiated by the complaining party within one (1) year from the later of the
accrual of the cause of action or the date on which the cause of action should
reasonably have been discovered. EACH PARTY EXPRESSLY WAIVES ANY AND ALL RIGHTS
THAT HE OR IT MAY HAVE TO HAVE ANY DISPUTE (WHETHER OR NOT ARISING DURING THE
TERM OF THIS AGREEMENT) HEREUNDER OR OTHERWISE RELATING TO EMPLOYEE'S
RELATIONSHIP WITH UROMED TRIED BEFORE OR DETERMINED BY A JURY.
(j) (x) All disputes or claims arising under or in any way relating to
this Agreement shall be settled by arbitration before a panel of three
arbitrators (with one designated by Employer and one designated by the
Employee, and the third arbitrator designated by the first two) pursuant to the
rules of the American Arbitration Association. Any arbitrator designated by the
Employer or the Employee must be an Independent Person, as defined in the
Merger Agreement. Any such arbitration shall take place in Boston,
Massachusetts. Arbitration may be commenced at any time by the Employer or the
Employee giving written notice to the other that such dispute has been referred
to arbitration under this clause (j). The third arbitrator shall be selected as
prescribed above, but if the first two arbitrators do not so agree within 30
days after the date of the notice referred to above, the selection shall be
made pursuant to the rules of the American Arbitration Association from the
Commercial Arbitration Panel maintained by such Association. Any award rendered
by the arbitrators shall be conclusive and binding upon the parties hereto;
provided, however, that any such award shall be accompanied by a written
opinion of the arbitrators giving the reasons for the award. In making such
award, the arbitrators shall be authorized to award interest on any amount
awarded. This provision for arbitration shall be specifically enforceable by
the Employer and the Employee and the decision of the arbitrators in accordance
herewith shall be final and binding and there shall be no right of appeal
therefrom. The losing party to the arbitration shall pay all costs (including
attorneys' fees) incurred by the non-losing party. In addition, if in the
opinion of the arbitrators any claim for indemnification or any defense or
objection thereto was frivolous or in bad faith, the arbitrators may assess, as
part of the award, all or any part of the arbitration expenses of the other
party (including reasonable attorneys' fees) and of the arbitrators against the
party raising such unreasonable claim, defense or objection.
(y) Subject to the limitation set form in Section 10(i) herein, to the
extent that arbitration may not be legally permitted hereunder and the Employer
and Employee do not at the time of such dispute or claim mutually agree to
submit such dispute or claim to arbitration either the Employer or Employee may
commence a civil action in a court of appropriate jurisdiction to resolve
disputes or claims hereunder. Nothing contained in this clause (j) shall
prevent the Employer and the Employee from settling any dispute or claim by
mutual agreement at any time.
(z) Subject to the limitations set forth in Section 10(i) herein,
neither the Employer nor the Employee shall be precluded hereby from seeking,
from the courts of any jurisdiction, provisional or equitable remedies,
including without limitation, temporary restraining orders and preliminary or
permanent injunctions, nor shall the pursuit of such provisional or equitable
relief constitute a waiver or modification of such party's right and obligation
to arbitrate any related or unrelated dispute which is otherwise subject to
arbitration under this Agreement, unless such waiver is expressed in writing
and signed by such party. In the event any person not a party to this Agreement
shall commence any interpleader or similar action which either directly or
indirectly raises issues which are subject to arbitration hereunder, the
Employer and the Employee shall seek a stay of such proceedings pending
arbitration in accordance with this Agreement.
(k) In the event of any suit relating to this Agreement or Employee's
employment hereunder, each party hereby agrees that it or he shall be
responsible for its or his own costs and expenses (including but not limited to
court costs and attorneys' fees).
IN WITNESS WHEREOF the parties hereto have affixed their hands and
seals upon three (3) counterpart originals hereof as of the date and year first
written above.
EMPLOYEE UROMED CORPORATION
/s/ Xxxxxx Xxxxxx By: /s/ Xxxxxx Xxxxxxxxxx
-------------------------- -------------------------------------
Xxxxxx Xxxxxx Name: Xxxxxx Xxxxxxxxxx
Title: President/CEO
EXHIBIT A
1. Be the visionary with regard to technology
2. Assist in the education of the organization relative to the industry
products etc.
3. Assess on a regular basis the competitive environment and overall
technology direction of the competition
4. Be available as necessary for ongoing software development assistance
5. Create and Manage a scientific advisory board (composition, timing and
objectives to be agreed upon)
6. Assist the sales effort in the field as necessary
7. Advise as to potential partnership / acquisition opportunities
