EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.109
THIS EMPLOYMENT AGREEMENT (the
“Agreement”) is entered into as of the 23th day of
July, 2007 by and between Gene Logic Inc., a Delaware corporation (the
“Company”), and Xxxxxxx Xxxxxxx, M.D. (the “Executive”).
The
Company desires to secure the services of Executive and Executive desires to
perform such services for the Company on the terms and conditions as set forth
in this Agreement.
NOW,
THEREFORE, in consideration of the mutual promises made below, the parties agree
as follows:
1. Employment,
Duties and Acceptance.
1.1 Employment.
(a) Effective
upon the later of the date of this agreement or the date the Executive first
reports for work for the Company (the “Effective Date”), the Company shall
employ the Executive as Sr. Vice President, Clinical Development, initially
reporting to the Chief Executive Officer (“CEO”) of the Company. In
such capacity, the Executive shall perform such executive and management duties
and assume such other responsibilities as may be assigned from time to time by
the individual to whom the Executive reports, the CEO or anyone else designated
by the CEO. The Executive accepts such employment and shall perform
his duties faithfully and to the best of his abilities.
(b) The
Executive shall devote his full working time and creative energies to the
performance of his duties hereunder and will at all times devote such additional
time and efforts as are reasonably sufficient for fulfilling the significant
responsibilities entrusted to him. So long as such activities, in the
aggregate, do not interfere with the performance by the Executive of his duties
hereunder, the Executive shall be permitted a reasonable amount of time to (i)
supervise his and his family’s personal, passive investments and (ii)
participate (as board member, officer or volunteer) in civic, political and
charitable activities. If the Executive wishes to undertake any other
outside activities, including any activities for which he would receive
compensation in any form, the Executive must obtain prior written approval in
accordance with Company policies.
1.2 Place of
Employment. The Executive's principal place of
employment shall be at the Company’s facility located at 00 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx or other Company facility in the Greater Boston
Metropolitan Area specified by the individual to whom the Executive reports, or
as otherwise mutually agreed by the parties, subject to such travel as may be
reasonably required by his employment pursuant to the terms
hereof. The Executive shall not be required to relocate outside of
the Greater Boston Metropolitan Area during the Term unless the Executive so
agrees and Company provides relocation benefits reasonably acceptable to the
Executive.
2. Term of
Employment. The Executive’s term of employment
with the Company (the “Term”) shall commence on the Effective Date and continue
thereafter on an at-will basis until terminated by either party pursuant to
Section 4, subject to certain rights upon termination as provided in Section
4. If Executive’s employment hereunder with the Company is terminated
by the Executive or by the Company, Executive shall thereby be removed from, and
Executive agrees to resign immediately from, all other positions with the
Company and its affiliates and subsidiaries (collectively the “GLGC
Group”).
3. Compensation.
3.1 Salary. As
compensation for all services to be rendered pursuant to this Agreement, the
Company shall pay to the Executive during the Term a salary at the rate of
$295,000.00 per annum (the “Base Salary”) less such deductions as shall be
required to be withheld by applicable tax and other laws and regulations or as
otherwise authorized by the Executive. The Base Salary shall accrue
from and after the Effective Date, and shall be payable during the Term, in
equal periodic installments, not less frequently than semi-monthly. The
Executive’s Base Salary shall be reviewed annually and may be increased based
upon various factors, including the evaluation of the Executive’s performance
and the compensation policies of the Company in effect at the time of each such
review. The Base Salary shall be prorated for the first calendar year
of employment and for any other year in which Executive is not employed by the
Company for the entire year based on the portion of the year in which Executive
is employed on a full-time basis by the Company.
3.2 Incentive
Compensation. Executive will be eligible to participate in any
incentive compensation plan established by the Company’s Board of Directors (the
“Board”) or the Compensation Committee of the Board (the “Compensation
Committee”) and generally applicable to full-time employeees of the Drug
Repositioning Division of the Company. Payment of incentive
compensation under any such plan will be contingent on achieving such targets
and levels of performance as are specified by the Compensation Committee. Such
targets and levels of performance may be specified for individuals or groups of
individuals, by department and/or on a company-wide basis. Incentive
compensation payments for any applicable plan will be made on the terms
specified in the plan, subject to prior approval by the Compensation
Committee. The target incentive compensation for Executive for the
Company’s fiscal year 2007, which shall be based on achieving 100% of the
targets and levels of performance established by the Compensation Committee,
will be 40% of the base salary specified in Section 3.1 of this Agreement, for a
full calendar year, less applicable withholding, prorated based on the portion
of the year in which Executive is employed by the Company. To receive
incentive compensation for any period, except as specifically provided in
section 4.7, the Executive must be employed by the Company on a full-time basis
as of the last business day of the period for which the incentive compensation
is paid.
3.3 Stock
Options. Upon and subject
to approval by the Board of Directors of the Company or its
Compensation Committee, Executive will receive a stock option grant under the
Company’s 1997 Equity Incentive Plan (the “Plan”) to acquire 100,000 shares of
Company Common Stock at an exercise price equal to the fair market value per
share at date of grant (which, for administrative purposes, is the closing price
on the last business day preceding the date of grant); the date of grant will be
the later of the Executive’s first day of employment hereunder or the date on
which the Board or Compensation Committee approve the grant. The
stock options will vest and become exercisable at the rate of one-forty eighth
per month at the end of each month of employment. The options will
have a 10-year term and be subject to the other terms and conditions of the Plan
and the standard form of stock option grant agreement thereunder. The stock
option will be an incentive stock option under Section 422 of the Internal
Revenue Code of 1986, as amended, (“Code”) to the maximum extent permitted by
the law and the Plan; any remaining portion of the stock option will be treated
as a Non-Statutory Stock Option.
3.4 Performance-Based
Shares. Upon and subject to
approval by the Board of Directors of the Company or its Compensation Committee,
Executive will receive a grant for 70,000 performance-based restricted
shares. Of these, 40,000 will vest if, within 2 years of grant date, Executive
accomplishes a clinical development milestone to be defined separately by the
CEO. The second 30,000 will vest if, within the same 2 year period, a second
successful milestone is achieved as defined by the CEO. In both cases the Board
or CEO will determine that the milestones have been achieved to its or his
satisfaction, which will in turn, cause the restrictions to lapse. Executive
will be fully responsible for taxes incurred upon lapsing of restrictions on
these shares.
3.5 Participation
in Benefit Plans. The Executive shall be permitted during the
Term, to the extent eligible, to participate in any group life, medical, dental,
vision, or disability insurance plans, accidental death and dismemberment plan,
401(k) Plan, or similar benefit plans of the Company that may be available
generally to other senior executives of the Company, but nothing herein shall
prevent the Company from adding to, changing or eliminating such benefits from
time to time.
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3.6 Paid Time
Off. The Executive shall accrue and may use paid time off
(“PTO”) in accordance with the Company’s policies. PTO accruing in
the first calendar year of employment and in any other year in which Executive
is not employed by the Company for the entire year shall be prorated based on
the portion of the year in which Executive is employed by the
Company.
3.7 Holidays. The
Executive shall be eligible for holidays in accordance with the Company’s policy
and schedule
3.8 Expenses. In
accordance with the Company’s policies, the Executive will be reimbursed for all
ordinary, necessary and reasonable business expenses (including, without
limitation, travel, meetings, dues, subscriptions, fees, educational expenses,
and expenses incurred for operation of mobile telephones,) actually incurred or
paid by the Executive during the Term in the proper performance of the
Executive's services under this Agreement, upon presentation of expense
statements or vouchers or such other supporting information as the Company or
Board may reasonably require.
3.9 Withholding. The
Company is authorized to withhold from the amount of any Base Salary and bonuses
and any other payments or benefits paid or provided to or for the benefit of the
Executive, all sums authorized by the Executive or required to be withheld by
law, court decree, or executive order, including (but not limited to) such
things as income taxes, employment taxes, and employee contributions to fringe
benefit plans sponsored by the Company.
3.10. Change of
Control. If so designated by the Board, the Executive shall be
included in the Company’s Executive Severance Plan (the “Change-of-Control
Severance Plan”), which may provide certain benefits if the Executive’s
employment is terminated as a result of a change in control of the
Company.
4. Termination.
4.1 General. The employment of
the Executive hereunder may be terminated as provided in this Section
4.
4.2 Termination
Upon Mutual Agreement. The Company and
the Executive may, by mutual written agreement, terminate this Agreement and/or
the employment of the Executive at any time.
4.3 Death or
Disability of Executive.
(a) The
employment of the Executive hereunder shall terminate upon (i) the death of
the Executive, or (ii) at the option of the Company upon not less than
thirty (30) days prior written notice to the Executive or his personal
representative or guardian, if the Executive suffers a Total Disability (as
defined in Section 4.3(b)
below).
(b) For
purposes of this Agreement, “Total Disability” shall mean (i) if the
Executive is subject to a legal decree of incompetency (the date of such decree
being deemed the date on which such disability occurred), or (ii) the
written determination by a physician selected by the Company that, because of a
medically determinable disease, injury or other physical or mental disability,
the Executive is substantially unable to perform his essential duties, without
reasonable accommodation, and that such disability has lasted for the
immediately preceding ninety (90) days and is, as of the date of determination,
reasonably expected to last an additional ninety (90) days or longer after the
date of determination. If requested by the Company, Executive agrees
to appear at a medical examination by a physician selected by the Company and to
furnish to such physician such medical information as is needed for a
determination under this Section 4.3(b). Nothing in
this provision is intended to restrict rights or obligations under the Americans
with Disabilities Act or other applicable law.
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(c) Any
leave on account of illness or temporary disability which is short of Total
Disability shall not constitute a breach of this Agreement by the Executive and
in no event shall any party be entitled to terminate this Agreement for Cause
(as defined below) due to any such leave. All physicians selected
hereunder shall be Board-certified in an appropriate specialty related to the
nature of the disability alleged to exist.
4.4 Termination
for Cause. The Company may,
upon action of the Board or, in the case of an officer or other officer who has
not been designated an executive officer by the Board, the CEO, and upon written
notice to the Executive specifying in reasonable detail the reason therefore,
terminate the employment of the Executive at any time for Cause (as defined in
Attachment A); provided, however, that if the reason for termination for Cause
is susceptible of cure as determined by the Company, the Executive shall have a
period of fifteen (15) business days after such written notice to effect a cure
satisfactory to the Company and, if so cured, such termination in such instance
shall be deemed withdrawn, but any such withdrawal shall not affect the right of
the Company to initiate a termination for any other cause or in any
other instance, including a recurrence of the circumstances that led to the
initial decision to terminate .
4.5 Termination
Without Cause. The Company may also terminate the employment
of the Executive without Cause upon 30 days advance written notice to the
Executive, which termination shall constitute a “Termination Without
Cause”. Termination without Cause shall not include a termination due
to death or Total Disability. The Company may limit the activities of
the Executive on behalf of the Company during such thirty day period or assign
transitional or other duties not inconsistent with the position held by the
Executive or provide pay in lieu of such notice.
4.6 Termination
by Executive. The Executive may
resign (and thereby terminate his employment under this Agreement) at any time,
by giving the Company not less than thirty (30) days’ prior written notice to
the Company, but the Company after receipt of such notice, may waive all or part
of such notice period.
4.7 Payments
Upon Termination Without Cause.
(a) If
Executive’s employment is terminated by the Company without Cause, the Company
shall pay the Executive:
(i) Severance
pay of twelve (12) months’ base salary, payable in a single lump sum within
fifteen (15) days after receipt of the signed release described in subsection
(b) below and expiration of any period allowed for revocation of that
release. This amount is in addition to and not in lieu of base salary
for the period prior to termination of employment made to fulfill any
requirement under the Agreement for prior notice of termination of up to 30 days
or pay in lieu thereof.
(ii) Reimbursement
or, at the Company's option, direct payment by the Company of that portion of
group health insurance premium for post-employment coverage (including without
limitation medical, dental and vision coverage) for which Executive is eligible,
and which the Executive timely elects under COBRA because of his prior
employment by Company, equal to the percentage of the premium that Company was
paying as of the last day of Executive’s employment by Company, for a period
equal to the lesser of (x) twelve (12) months or (y) until Executive becomes
eligible for coverage under a new employer’s group health plan. Such
reimbursement or direct payment will also include coverage for any dependents of
Executive who are eligible for, and timely elect, coverage under COBRA for the
same period as Executive equal to the percentage of the premium for dependent
coverage that Company was paying as of the last day of Executive’s employment by
Company. Such reimbursement or direct payment is for a period that is part of,
and not in addition to, the total period of eligibility for continuation of
health insurance benefits to which Executive, and/or the covered dependents, are
entitled under COBRA.
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If the
option selected by the Company is reimbursement, such reimbursement will be
provided within a reasonable time following receipt by the Company of
confirmation of payment of the cost of such health insurance by Executive (and,
if applicable, covered dependents) for the number of weeks
covered. Executive (and, if applicable, covered dependents) may
request periodic reimbursement, but not more often than monthly. Any
such reimbursement must be requested by Executive (and, if applicable, covered
dependents) no later than thirty (30) days following the end of the calendar
year in which occurred the due date for the respective premium and, if timely
requested by Executive (and, if applicable, covered dependents), will be
reimbursed by Company no later than thirty (30) days following receipt of the
reimbursement request.
If the
option selected by the Company is direct payment, the Executive (and, if
applicable, covered dependents) must pay to the Company the Executive’s (and, if
applicable, covered dependents) portion of the COBRA premium no later than the
first of each month for which COBRA coverage is continued.
(iii) Outplacement
services paid for and through a program and vendor selected by Company and at a
level appropriate for an executive for a period not to exceed six (6) months,
and in no event costing more than twenty thousand dollars ($20,000.00), to be
used and completed within twelve (12) months after termination of employment,
unless otherwise agreed in writing by Company, but in no event later than the
end of the second calendar year following the year of termination. Executive may
not elect any payment in lieu of such outplacement services and such services
will only become available after any release required under subsection (b) below
is signed and the revocation period specified therein has been completed without
revocation.
(b) Any
payments made under this Section 4.7 will be conditioned upon execution by
Executive of a comprehensive and full release of all claims arising from or
connected with his employment by the Company in such form as may be specified by
the Company (excluding from any such release any rights Executive may have to
(x) indemnification or to insurance coverage with respect to his actions while
employed by the Company, whether by contract, under Directors and officers or
other insurance maintained by the Company or under the Company’s indemnification
policies and agreements and applicable law concerning indemnification, (y)
coverage at the Executive's expense under applicable heath care policies to the
extent Executive is entitled to continued coverage under COBRA) and (z) payment
of compensation earned but not paid prior to termination. Such
release shall be presented to Executive as soon as practicable and in any event
no later than ten (10) days following Executive's termination of
employment. The release must be signed and returned to Company by
Executive no later than twenty-one (21) days after Executive's receipt of the
release, or such longer time limit as may be stated in the release, and must not
be revoked within the period allowed for revocation as stated in the release in
order for Executive to become entitled to the severance and other benefits
hereunder.
(c) Notwithstanding
anything to the contrary above, if the Executive is eligible for and has met the
conditions for receiving cash severance and benefits under the Company’s
Executive Severance Plan, as amended and restated effective February 23, 2001 or
as subsequently amended or under any successor plan providing severance and/or
other benefits to executives upon or in connection with a change of control of
the Company (the "Executive Severance Plan"), then the provisions set forth in
the Executive Severance Plan shall apply in lieu of severance and benefits under
this Agreement, including without limitation this Section
4.7. If Executive becomes entitled to cash severance and other
benefits under the Executive Severance Plan after receiving severance or other
benefits under this Agreement, the severance and other benefits under this
Agreement shall be credited against the cash severance and benefits due under
the Executive Severance Plan. In no event shall the aggregate
severance and other benefits actually paid and provided to Executive exceed the
greater of the amount payable under this Agreement, including without limitation
this Section 4.7, or under the Executive Severance Plan as the result of a
termination of Executive's employment.
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(d)
The
Company shall have no further liability to the Executive pursuant to this
Agreement, in the event of termination by the Company in a Termination Without
Cause except as set forth in this Section 4.7 including, without limitation, any
liability to pay the Executive any severance, bonus or any other
compensation.
(e)
The
Company also waives, releases and remises (A) any obligation or duty under
applicable law on the part of the Executive to seek or obtain other engagements
or employment or to otherwise mitigate any damages to which the Executive may be
entitled by reason of any termination of this Agreement; and (B) any right in or
claim to any remuneration or compensation received by Executive pursuant to any
engagements or employment subsequent to the termination of this
Agreement.
4.8 Payments
upon Termination for Cause or due to Death or Disability of the
Executive
(a)
If the Executive’s employment is terminated (i) by the Company for Cause, or
(ii) by the Executive, then the Company shall have no duty to make any payments
or provide any benefits to the Executive pursuant to this Agreement other than
payment of the amount of the Executive’s Base Salary and benefits accrued
through the date of termination of his employment.
(b)
Upon termination of Executive's employment for death or Total Disability, the
Company shall pay to the Executive, or to his guardian or personal
representative, as the case may be, in addition to any insurance or disability
benefits to which he may be entitled under applicable insurance and benefit
programs contemplated by Section 3.4 and then in effect, all amounts
accrued or vested prior to such termination; provided, however, if cash
severance benefits are payable under the Change-of-Control Severance Plan as a
result of such termination, then the provisions set forth in such plan shall
apply in lieu of the foregoing. The Company shall have no further
liability to the Executive, guardian or personal representative pursuant to this
Agreement, including, without limitation, any liability to pay the Executive,
guardian or personal representative any severance, bonus or any other
compensation.
4.9 No
Disparaging Comments Upon Termination.
Upon termination of this Agreement and
thereafter, the Executive shall refrain from making any disparaging remarks
about the businesses, services, products, stockholders, officers, directors or
other personnel of the GLGC Group.
5. Certain
Covenants of the Executive.
5.1 Necessity
for Covenants. The Executive acknowledges that (i) the
GLGC Group (as defined below) is engaged and will in the future be engaged in
the Business as defined in Section 5.2 below; (ii) his employment pursuant
to this Agreement will give him access to customers and suppliers of the GLGC
Group; (iii) his employment will give him access to confidential information and
other trade secrets concerning the GLGC Group’s products, services and the
Business and (iv) the agreements and covenants contained in this Section 5 are essential
to protect the business and goodwill of the GLGC Group. To induce the
Company to enter into this Agreement and pay the compensation and other benefits
at the levels requested by the Executive, the Executive enters into the
following covenants:
5.2 Definitions.
(a) “Business”
for purposes of this Article 5 shall mean the provision by the GLGC Group of
genomic information and bioinformatics products and services, pre-clinical
testing services and drug repositioning services to the pharmaceutical and
biotechnology industry. The Business includes:
(i) biosample
collection, handling and processing, genomic data production and analysis, and
data management and software systems development, to create a broad range of
gene expression-based information solutions that facilitate the drug discovery
and development process,
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(ii) drug
repositioning and drug indication seeking programs conducted by the Company
either for itself or with partners,
(iii) the
development and sale or licensing of molecular diagnostics products and services
and
(iv) any
other products and services offered from time to time by the GLGC Group as
described in its annual and quarterly reports filed with the Securities and
Exchange Commission.
(b) “GLGC Group” for
purposes of this Article
5 shall include the Company, and all of its wholly or majority owned
subsidiaries and affiliates and successors and assigns of any of the
foregoing.
(c) “Business Contact”
shall mean any (i) customer which has purchased goods or services provided
by the GLGC Group during the Term, (ii) prospective customer whom the
Executive or persons working for or directly with the Executive has contacted
during the Term for the purpose of endeavoring to sell the goods or services of
the GLGC Group to the prospective customer, or (iii) provider of material
amounts of goods or services to the GLGC Group.
(d) “Service Area” means
North America, Eastern Europe and Japan..
(e) “Term” means the term
of employment as specified in Section 2 hereof
5.3 Restrictive
Covenants.
5.3.1
Restrictions. During
the Term and for a period of one (1) year after the date (the “Termination
Date”) the Executive's employment hereunder is terminated (the
“Restricted Period”) regardless of whether such termination is voluntary or
involuntary, with or without Cause or by resignation, the Executive shall not,
directly or indirectly, for himself or on behalf of any other person, firm,
corporation or other entity, whether as a principal, agent, employee,
stockholder, partner, officer, member, adviser, consultant, director, sole
proprietor, or otherwise:
(a) call
upon or solicit any Business Contact for the purpose of persuading the Business
Contact to engage the Executive or any other person, firm, corporation or other
entity to provide goods or services which are the same as or similar to those
the GLGC Group provided or proposed to provide to the Business Contact or to
engage the Business Contact to provide to any other person, corporation or other
entity goods or services which are the same as or similar to those the Business
Contact provided to the GLGC Group to any other person, firm, corporation or
other entity;
(b) solicit,
participate in or promote the solicitation of any person who was employed by the
GLGC Group at any time during the twelve (12) months preceding the Termination
Date to leave the employ of the GLGC Group, or hire or engage or assist anyone
to hire or engage any of those persons;
(c) make
any disparaging remarks about the GLGC Group's business, services or personnel
in any manner that is likely to have an adverse effect on the GLGC Group's
business, services or personnel, provided that Executive may respond accurately
and fully to any questions, inquiry or request for information when required by
legal process or in response to an inquiry from an administrative
agency.;
(d) interfere
in any way with the GLGC Group’s Business, prospects or personnel of the GLGC
Group in existence prior to the Termination Date or contemplated by the GLGC
Group during such period; or
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(e) render
services in any capacity (other than services unrelated to the Business) to, or
become affiliated with, any person, company or other entity engaged in any
business that competes with the Business within the Service Area, directly or
indirectly, in any capacity;
provided,
however, that the Executive may own, directly or indirectly, solely as an
investment, securities which are publicly traded if the Executive (a) is
not a controlling person of, or a member of a group which controls, the issuer
and (b) does not, directly or indirectly, own 5% or more of any class of
securities of the issuer.
5.3.2 Severability
of Covenants. The Executive acknowledges and agrees that the
Restrictive Covenants are reasonable and valid in geographical and temporal
scope and in all respects. If any court determines that any of the
Restrictive Covenants, or any part thereof, is invalid or unenforceable, the
remainder of the Restrictive Covenants shall not thereby be affected and shall
be given full effect, without regard to the invalid portions.
5.3.3 Blue-Penciling. If
any court determines that any of the Restrictive Covenants, or any part thereof,
is unenforceable because of the duration or geographic scope of such provision,
such court shall have the power to reduce the duration or scope of such
provision, as the case may be, and, in its reduced form, such provision shall
then be enforceable and shall be enforced. If any such court declines
to so revise such covenant, the parties agree to negotiate in good faith a
modification that will make such duration or scope enforceable.
5.4 Rights
and Remedies Upon Breach. If the Executive breaches, or
threatens to commit a breach of, any of the provisions of Section 5.3 (the “Restrictive
Covenants”), the Company shall, in addition to its right immediately to
terminate this Agreement for Cause, have the right and remedy (which right and
remedy shall be independent of others and severally enforceable, and which shall
be in addition to, and not in lieu of, any other rights and remedies available
to the Company under law or in equity) to have the Restrictive Covenants
specifically enforced by any court having jurisdiction, it being acknowledged
and agreed that any such breach or threatened breach could cause irreparable
injury to the Company and that money damages may not provide an adequate remedy
to the Company.
6. Representations
of Executive. The Executive represents and warrants
that:
(a)
his employment by the Company will not (i) violate any non-disclosure
agreements, covenants against competition, or other restrictive covenants or
agreements made by the Executive with, to or for the benefit of any previous
employer or partner, or (ii) violate or constitute a breach or default under,
any statute, law, judgment, order, decree, writ, injunction, deed, instrument,
contract, lease, license or permit to which the Executive is a party or by which
the Executive is bound;
(b)
there is no litigation, proceeding or investigation of any nature (either civil
or criminal) which is pending or, to the best of the Executive's knowledge,
threatened against or affecting the Executive or which would adversely affect
his ability to substantially perform the duties herein; and
(c)
he has received or been given the opportunity to review the provisions of this
Agreement, and the meaning and effect of each provision, with independent legal
counsel of the Executive's choosing.
7. Confidentiality
and Proprietary Inventions Agreement. As a condition to his
employment by the Company, the Executive agrees to enter into and be bound by
the provisions set forth in the Company’s Proprietary Information and Inventions
Agreement, which is expressly incorporated by reference thereto.
8. Dispute
Resolution.
8.1 Arbitration
Policy. Subject to the Company’s right to seek injunctive or
other equitable relief as specified in Section 5.4 of this Agreement or in the
Proprietary Information and Inventions Agreement, the Parties agree that
arbitration is the required and exclusive forum for the resolution of any and
all disputes between them, including claims arising under statute, common law,
or this Agreement. This mandatory arbitration provision includes
without limitation any claims or actions under Title VII of the Civil Rights Act
of 1964, the Civil Rights Act of 1866 (“Section 1981”), the Americans with
Disabilities Act, the Family and Medical Leave Act, the Age Discrimination in
Employment Act, the Fair Labor Standards Act, the Equal Pay Act, the Employee
Retirement Income Security Act, and any other federal, state or local statute,
law or regulation regarding employment, employment discrimination, terms and
conditions of employment, compensation or termination of
employment. This mandatory arbitration provision includes any dispute
between the Executive and the Company or its parents, subsidiaries and
affiliates, and its and their current and former officers, directors, employees
and agents.
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Any covered dispute must be submitted
to arbitration in accordance with the National Rules for the Resolution of
Employment Disputes of the American Arbitration Association. Any such
arbitration will be conducted in Xxxxxxxxxx County, Maryland, and will be
decided in accordance with and determined by the laws of the State of Maryland
and/or applicable federal law. The Executive specifically agrees that
the Company may seek specific performance of this provision, as well as other
injunctive relief, from the state or federal courts in Maryland. The
arbitrator shall not have the authority to award punitive damages, costs or
attorneys’ fees to either Party except where expressly provided for by the
applicable law.
Except as otherwise provided by
applicable law, the administrative costs of the arbitration (filing fees, cost
for the arbitration site, other AAA fees, arbitrator’s fee) shall be divided
equally between the parties. In the event that the National Rules for
the Resolution of Employment Disputes of the American Arbitration Association,
any express statutory provisions, or controlling case law conflicts with this
allocation and requires the payment of administrative costs of arbitration by
the Company, the administrative costs of arbitration will be paid by the
Company. The fees and expenses of any witness shall be paid by the Party
requiring the presence of such witness. Each Party shall bear its own
costs and expenses in all other respects. The resolution of any
dispute achieved through such arbitration shall be final and binding and
enforceable by a court of competent jurisdiction.
8.2 No Jury
Trial. NEITHER PARTY SHALL ELECT A TRIAL BY JURY IN ANY
ACTION, SUIT, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN ANY WAY CONNECTED
WITH THIS AGREEMENT.
8.3 Personal
Jurisdiction. Both parties agree to submit to the jurisdiction
and venue of the state courts in Xxxxxxxxxx County, Maryland as to matters
involving enforcement of this Agreement, including any award under an
arbitration proceeding.
9. Other
Provisions.
9.1 Notices. Any
notice or other communication required or which may be given hereunder shall be
in writing and shall be delivered personally, telegraphed, telexed, sent by
facsimile transmission, sent by nationally recognized overnight courier service
such as FedEx or UPS or sent by certified, registered or express mail, postage
paid, and shall be deemed given when so delivered personally, telegraphed,
telexed or sent by facsimile transmission or, if sent by courier on the second
business after delivery by the courier service or, if mailed, four days after
the date of mailing, as follows:
(a) if
to the Company, to:
00 Xxxx Xxxxxxx Xxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Attention: Chief Executive
Officer
with copies to:
Xxxxx Xxxxxxx, Esquire
Venable, Baetjer, Xxxxxx and
Xxxxxxxxx, LLP
000 0xx Xxxxxx, XX
Xxxxxxxxxx,
XX 00000
(b) if
to the Executive, to:
Xxxxxxx
Xxxxxxx, M.D.
00 Xxxxxx
Xxxx
Xxxxxxxxx,
XX 00000
9
Any party may by notice given in
accordance with this Section to the other party designate another address or
person for receipt of notices hereunder.
9.2 Entire
Agreement. This Agreement contains the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior agreements and understandings, written or oral, with respect
thereto.
9.3 Waivers
and Amendments. This Agreement may be amended, modified,
superseded, canceled, renewed or extended, and the terms and conditions hereof
may be waived, only by a written instrument signed by the Executive and a duly
authorized officer of the Company (each of the Executive and Company, in such
capacity, a party) or, in the case of a waiver, by the party waiving
compliance. No delay on the part of any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof, nor shall
any waiver on the part of any party of any right, power or privilege hereunder,
nor any single or partial exercise of any right, power or privilege hereunder,
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege hereunder.
9.4 Governing
Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Maryland without regard to conflicts of
laws principles.
9.5 Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same
instrument.
9.6 Confidentiality. Neither
party shall disclose the contents of this Agreement to any person, firm or
entity, except the agents or representatives of the parties, or except as
required by law.
9.7 Word
Forms. Whenever used herein, the singular shall include the
plural and the plural shall include the singular. The use of any
gender or tense shall include all genders and tenses.
9.8 Headings. The
Section headings have been included for convenience only, are not part of this
Agreement, and are not to be used to interpret any provision
hereof.
9.9 Binding
Effect and Benefit. This Agreement shall be binding upon and
inure to the benefit of the parties, their successors, heirs, personal
representatives and other legal representatives. This Agreement may
be assigned by the Company to any entity that buys substantially all of the
Company's assets or to any affiliate of the Company with the consent of the
Executive that shall not be unreasonably withheld. However, the
Executive may not assign this Agreement without the prior written consent of the
Company.
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9.10 Separability. The
covenants contained in this Agreement are separable, and if any court of
competent jurisdiction declares any of them to be invalid or unenforceable, that
declaration of invalidity or unenforceability shall not affect the validity or
enforceability of any of the other covenants, each of which shall remain in full
force and effect.
IN WITNESS
WHEREOF, the parties, intending to be legally bound, have executed this
Agreement as of the last date of signature below.
|
July 24, 2007
|
By
/s/ Xxxxxxx X. Xxxxxxx,
III
(SEAL)
|
||
|
Dated
|
President
and Chief Executive Officer
|
||
|
EXECUTIVE:
|
|||
|
July 20, 2007
|
/s/ Xxxxxxx
Xxxxxxx
(SEAL)
|
||
|
Dated
|
11
Attachment
A
Definition
of "Cause"
"Cause"
shall mean:
|
i)
|
commission
of an act or an omission that the Company determines would
constitute:
|
|
a)
|
a
felony or
|
|
b)
|
a
misdemeanor which, in the Company’s reasonable opinion, could have a
material adverse effect on the Company's business, financial condition,
prospects or reputation or the Executive's performance of his duties,
under the laws of the United States or of any state
or
|
|
c)
|
a
crime involving moral turpitude, including, but not limited to, fraud,
theft, embezzlement or any crime that results in or is intended to result
in personal enrichment at the expense of the
Company;
|
|
ii)
|
a
material breach by the Executive of any agreement entered into between the
Executive and the Company including without limitation the violation by
the Executive of the provisions of the Proprietary Information and
Inventions Agreement or any restrictive covenants in this Agreement
dealing with the same subject matter or a material violation of the
Company's Code of Ethics;
|
|
iii)
|
willful
misconduct by the Executive or gross negligence of the Executive which
could reasonably be expected to have a material adverse impact on the
Company;
|
|
iv)
|
a
material failure of the Executive in the performance of the Executive’s
duties provided that, if susceptible of cure as determined by the Company,
notice is provided and Executive does not cure such failure within fifteen
(15) business days after the date of such notice in a manner satisfactory
to the Company; or
|
|
v)
|
engagement
in any activity that constitutes a material conflict of interest with the
Company unless fully disclosed and consented to by the
Board.
|
With
respect to any criminal act, the Company may base such a determination on facts
available to it or on an arrest or charges by an appropriate government
authority (without liability if the Executive is subsequently acquitted or the
prosecution is terminated without conviction) and may, at its option in lieu of
immediate termination, suspend the Executive with or without pay in lieu of
immediate termination in the event of any criminal charges, pending additional
information, criminal conviction or other action enabling a final decision on
whether termination should be “for cause”.
12
