EXHIBIT 10.22
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), dated as of May 15, 2000
(the "Effective Date"), by and between XxXxxxxx.xxx, Inc., a Delaware
corporation (the "Corporation"), and Xxxxx Xxxxxxx (the "Controller").
WITNESSETH:
WHEREAS, the Corporation and the Controller desire to set forth the
terms and conditions on which, from and after the Effective Date, (i) the
Corporation shall employ the Controller, (ii) the Controller shall render
services to the Corporation, and (iii) the Corporation shall compensate the
Controller for such services;
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises and covenants herein contained, the parties agree as follows:
1. EMPLOYMENT; DUTIES
(a) The Corporation engages and employs the Controller, and the
Controller hereby accepts engagement and employment, as Controller of the
Corporation. The Controller shall perform such services and duties as are
normally incident to such position and are commensurate with the Controller's
background, education and professional standing, all as the Chief Financial
Officer (or until the Corporation has named a Chief Financial Officer, the Chief
Executive Officer or his designee) of the Corporation shall reasonably
determine. Such services and duties shall include but not be limited to those
set forth on Exhibit A hereto.
(b) The Controller shall perform his duties hereunder from the
Corporation's executive office in the Boston area, but understands that travel
outside of the Boston area is likely to be required in connection with the
performance of his duties.
(c) The Controller shall devote such time and efforts to the
Corporation as required for the proper discharge of his duties and
responsibilities under this Agreement. Notwithstanding the foregoing, the
Controller may provide consulting services during non-business hours to Dynagen
Inc. and BioTrack, Inc. for a period of twelve months from the Effective Date.
2. TERM
The Controller's employment hereunder shall be for an initial period of
four (4) years commencing on the Effective Date and continuing through the
fourth anniversary thereof, unless sooner terminated as hereinafter provided
(the "Initial Term"). Thereafter, the term and each extension will be
automatically extended for successive one-year periods, unless the Corporation
gives written notice of termination to the other party at least 60 days prior to
the expiration of the current term.
3. COMPENSATION
(a) Subject to the terms and conditions of this Agreement, as
compensation for the performance of his duties on behalf of the Corporation, the
Controller shall be compensated as follows:
(i) The Corporation shall pay the Controller a base salary at
the rate of $140,000 per annum payable no less frequently
than monthly in arrears on or before the first day of each
succeeding month.
(ii) Promptly following the Effective Date, subject to the
approval of the Board of Directors, the Controller shall
receive from the Corporation an incentive option to purchase
150,000 shares of common stock of the Corporation (the
"Option Shares") at an exercise price of $0.05 per share,
which is not less than the fair market value of the Option
Shares on the date of grant as determined by the Board of
Directors of the Corporation. Such option shall have a term
of ten years and vest over four (4) years subject to the
terms contained in the Corporation's stock option plan and
the stock option agreement attached as Exhibit B hereto.
(iii) The Corporation shall withhold all applicable federal, state
and local taxes, social security and workers' compensation
contributions and such other amounts as may be required by
law or agreed upon by the parties with respect to the
compensation payable to the Controller pursuant to this
paragraph 3(a).
(b) The Corporation shall reimburse the Controller for all reasonable
expenses incurred by the Controller in furtherance of the business and affairs
of the Corporation, including reasonable travel and entertainment, against
receipt by the Corporation of appropriate vouchers or other proof of the
Controller's expenditures and otherwise in accordance with such Expense
Reimbursement Policy as may from time to time be adopted by the Board of
Directors of the Corporation.
(c) The Controller shall be entitled to accrue paid vacation at the
rate of fifteen (15) business days per annum, plus all the appropriate
Corporation holidays.
(d) The Corporation shall pay the insurance premium on a life insurance
policy for the benefit of the Controller, which the Controller shall obtain. The
Corporation shall also provide to the Controller medical benefits at the
Corporation's expense, including but not limited to an annual physical
examination. Until such time as the Corporation has medical benefits in place,
the Corporation shall reimburse the Controller in full for all medical and
dental insurance payments and any other benefit payments agreed to in advance by
the Corporation. In addition, the Corporation shall make available to the
Controller the opportunity to participate in a 401(k) program, if the
Corporation begins such a program. The Controller shall also be entitled to all
other benefits generally made available to the Corporation's executive officers
from time to time.
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4. REPRESENTATIONS AND WARRANTIES BY THE CONTROllER AND CORPORATION
The Controller hereby represents and warrants to the Corporation as
follows:
(a) Neither the execution and delivery of this Agreement nor the
performance by the Controller of his duties and other obligations hereunder
violate or will violate any statute, law, determination or award, or conflict
with or constitute a default under (whether immediately, upon the giving of
notice or lapse of time or both) any prior employment agreement, contract, or
other instrument to which the Controller is a party or by which he is bound.
(b) The Controller has the full right, power and legal capacity to
enter and deliver this Agreement and to perform his duties and other obligations
hereunder. This Agreement constitutes the legal, valid and binding obligation
of the Controller enforceable against him in accordance with its terms. No
approvals or consents of any persons or entities are required for the Controller
to execute and deliver this Agreement or perform his duties and other
obligations hereunder.
The Corporation hereby represents and warrants to the Controller as
follows:
(a) The Corporation is duly organized, validly existing and in good
standing under the laws of the State of Delaware, with all requisite corporate
power and authority to own its properties and conduct its business in the manner
presently contemplated.
(b) The Corporation has full power and authority to enter into this
Agreement and to incur and perform its obligations hereunder.
(c) The execution, delivery and performance by the Corporation of this
Agreement does not conflict with or result in a breach or violation of or
constitute a default under (whether immediately, upon the giving of notice or
lapse of time or both) the certificate of incorporation or by-laws of the
Corporation, or any agreement or instrument to which the Corporation is a party
or by which the Corporation or any of its properties may be bound or affected.
5. NON-COMPETITION
(a) The Controller understands and recognizes that his services to the
Corporation are special and unique and agrees that during the term of this
Agreement and during the NonCompete period, he shall not in any manner,
directly, on behalf of himself or any person, firm, partnership, joint venture,
corporation or other business entity ("Person"), enter into or engage in any
business or business activity relating to pharmaceutical marketing, either as an
individual for his own account, or as a partner, joint venturer, executive,
agent, consultant, salesperson, officer, director or shareholder of a Person
operating or intending to operate within the area that the Corporation is, at
the date of termination, conducting its business, provided, that, the Controller
maybe a stockholder of a publicly-held company which is or may be a competitor
of the Company (the "Competitor") if the Controller's ownership of such
Competitor does not exceed two percent (2%) of the issued and outstanding shares
of the Competitor.
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(b) During the Non-Compete Period, the Controller shall not interfere
with or disrupt or attempt to disrupt the Corporation's business relationship
with any of its customers, affirmatively suggest or propose that any of the
employees of the Corporation leave such employment, or retain, help retain, or
participate in retaining employees of the Corporation.
(c) The Non-Compete Period shall mean the period of time beginning on
the date of the Controller's termination and ending twelve (12) calendar months
following such termination.
(d) In the event that the Controller breaches any provisions of this
Paragraph 5 or there is a threatened breach of this Paragraph 5, then, in
addition to any other rights which the Corporation may have, the Corporation
shall be entitled, without the posting of a bond or other security, to
injunctive relief to enforce the restrictions contained herein. In the event
that an actual proceeding is brought in equity to enforce the provisions of this
Paragraph 5, the Controller shall not argue as a defense that there is an
adequate remedy at law nor shall the Corporation be prevented from seeking any
other remedies which may be available.
6. INVENTIONS ASSIGNMENTS - CONFIDENTIAL INFORMATION
All inventions, improvements, ideas, names, patents, trademarks,
copyrights, and innovations (including all data and records pertaining thereto),
whether or not reduced to writing, which the Controller may originate, make or
conceive during the term of his employment and for a period of three (3) months
thereafter, either alone or with others and whether or not during working hours
or by the use of facilities of the Corporation, and which relate to or are or
may likely be useful in connection with the business or contemplated business of
the Corporation shall be the exclusive property of the Corporation.
The Controller agrees that during the course of his employment or at
any time after termination, he will not disclose or make accessible to any other
person, the Corporation's products, services and technology, both current and
under development, promotion and marketing programs, lists, trade secrets and
other confidential and proprietary business information of the Corporation or
any of its clients. The Controller agrees: (i) not to use any such information
for himself or others; and (ii) not to take any such material or reproductions
thereof from the Corporation's facilities at any time during his employment by
the Corporation, except as required in the Controller's duties to the
Corporation. The Controller agrees immediately to return all such material and
reproductions thereof in his possession to the Corporation upon request and in
any event upon termination of employment. The foregoing notwithstanding, the
parties acknowledge and agree that the confidential and proprietary information
of the Corporation and/or its clients shall not include the following: (a)
information already in the public domain or hereafter disclosed to the public
through no fault of the Controller; including but not limited to knowledge of
(i) the business of other companies in the field, (ii) general business methods
and structures useful in operating pharmaceutical marketing companies, (iii) the
status of patents and other technology in the field other than those of the
Corporation; (b) general knowledge about the field of pharmaceutical marketing
obtained through the Controller's academic experience, or (c) specific ideas and
projections of the field of pharmaceutical marketing's evolution.
Except with prior written authorization by the Corporation, the
Controller agrees not to disclose or publish any of the confidential, technical
or business information or material of the Corporation, its clients or any other
party to whom the Corporation owes an obligation of confidence, at any time
during or after his employment with the Corporation.
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7. TERMINATION
(a) Subject to Paragraph 2 above, the Controller's employment hereunder
shall begin on the Effective Date and shall continue thereafter until terminated
upon the first to occur of the following events:
(i) the death of the Controller or the Disability of the
Controller, as defined below; or
(ii) termination by the Board of Directors of the Corporation,
either with or without Cause (as defined below); or
(iii) voluntary resignation by the Controller after providing the
Corporation with at least thirty days prior written notice.
(b) Upon termination pursuant to clause (a)(i) above, an additional
9,375 Option Shares shall vest. "Disability" of the Controller shall be deemed
to have occurred if the Controller, by virtue of any injury, sickness, or
physical condition is unable to perform substantially and continuously the
duties assigned to him hereunder for more than sixty (60) consecutive or
non-consecutive days out of any consecutive twelve (12) month period, exclusive
of any accrued vacation.
(c) Upon termination during the Initial Term or any renewal Term
pursuant to clause (a)(ii) for any reason other than for Cause (as defined
below), (i) the Corporation shall offer the Controller a two (2) month
consulting agreement (the "Consulting Agreement") commencing immediately upon
the date of the Controller's termination (the "Termination Date"), and (ii) so
long as the Controller has been employed by the Corporation for more than six
months at the time of the Termination Date, the number of Option Shares equal to
that which is to vest at the next scheduled vesting date, shall vest. During the
term of the Consulting Agreement, the Controller shall be compensated based upon
the Total Annual Cash Compensation (as adjusted for such two month period). In
addition, during the term of the Consulting Agreement, the Controller shall be
entitled to all health and other benefits described in paragraph 3(d) of this
Agreement unless the Controller becomes entitled to comparable health and other
benefits provided by a new employer or contractor at such new employer or
contractor's expense. The Controller shall have no duty to mitigate the
Corporation's obligations hereunder by seeking any other comparable employment
or consulting arrangements during the term of the Consulting Agreement. If
during such term the Controller becomes entitled to health and other benefits
provided by a new employer or contractor at such new employer or contractor's
expense, the Controller agrees to inform the Corporation promptly of such
entitlement and to cooperate with the Corporation in terminating the
Controller's coverage under the Corporation's benefit plans.
(d) Upon termination by the Corporation during the Initial or any
renewal Term pursuant to clause (a)(ii) with Cause or upon the voluntary
resignation of the Controller pursuant to clause (a)(iii), such termination
shall be effective immediately or on the effective date of the Controller's
notice, as the case may be, and the Controller will be paid a portion of the
Total Annual Cash Compensation due to the Termination Date, which has not been
paid to him.
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(e) For purposes of this Agreement, "Cause" shall mean the unlawful
conduct of the Controller constituting a felony under the law or dishonest
conduct of the Controller involving moral turpitude and causing material harm to
the Corporation, willful, reckless or grossly negligent misconduct or
insubordination which is or is reasonably likely to be injurious to the
Corporation, monetarily or otherwise, continuing after written notice thereof by
the Board of Directors or a material breach of any of the Controller's
obligations (not occasioned by the Controller's death or Disability) hereunder
after written notice by the Corporation and failure to cure within 30 days of
such notice.
8. NOTICES
Any notice or other communication under this Agreement shall be in
writing and shall be deemed to have been given upon receipt by the other party.
9. SEVERABILITY OF PROVISIONS
If any provision of this Agreement shall be declared by a court of
competent jurisdiction to be invalid, illegal or incapable of being enforced in
whole or in part, the remaining conditions and provisions or portions thereof
shall nevertheless remain in full force and effect and enforceable to the extent
they are valid, legal and enforceable, and no provision shall be deemed
dependent upon any other covenant or provision unless so expressed herein.
10. ENTIRE AGREEMENT; MODIFICATION
This Agreement contains the entire agreement of the parties relating to
the subject matter hereof, and the parties hereto have made no agreements,
representations or warranties relating to the subject matter of this Agreement
which are not set forth herein. No modification of this Agreement shall be valid
unless made in writing and signed by the parties hereto.
11. BINDING EFFECT
The rights, benefits, duties and obligations under this Agreement shall
inure to, and be binding upon, the Corporation, its successors and assigns, and
upon the Controller and his legal representatives. This Agreement constitutes a
personal service agreement, and the performance of the Controller's obligations
hereunder may not be transferred or assigned by the Controller.
12. NON-WAIVER
The failure of either party to insist upon the strict performance of
any of the terms, conditions and provisions of this Agreement shall not be
construed as a waiver or relinquishment of future compliance therewith, and said
terms, conditions and provisions shall remain in full force and effect. No
waiver of any term or condition of this Agreement on the part of either party
shall be effective for any purpose whatsoever unless such waiver is in writing
and signed by such party.
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13. GOVERNING LAW; WAIVER OF JURY TRIAL.
This Agreement shall be governed by, and construed and interpreted in
accordance with, the laws of the Commonwealth of Massachusetts without regard to
principles of conflict of laws. The parties irrevocably waive all right to a
trial by jury in any suit, action, or other proceeding hereafter instituted by
or against such party in respect of its obligations hereunder or the
transactions contemplated hereby.
14. ATTORNEYS FEES, COSTS.
In the event a party breaches this Agreement, the breaching party shall
pay all costs and attorneys' fees incurred by the other party in connection with
such breach, whether or not any litigation is commenced.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
XXXXXXXX.XXX, INC.
By: /s/ Xxx Xxxxxxx
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Title: President
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/s/ Xxxxx Xxxxxxx
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