UroMed Corporation
EMPLOYMENT AGREEMENT
The parties to this agreement, dated as of December 1, 1999, are UroMed
Corporation, a Massachusetts corporation (the "Employer"), and Xxxx X. Xxxxx,
(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 Chairman of the Board of the
Employer. The Employee shall preside over meetings of the Employer's Board of
Directors, and, subject to the general direction and control of the Employer's
Board of Directors, meet periodically with the Chief Executive Officer and 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 such business time and effort as may be required by the Employer,
in and to his employment hereunder; provided, however, that Employee may be a
full-time employee elsewhere (subject to the duties of Employee pursuant to
Section 5 hereof) during the term of this Agreement if such employment does not
substantially interfere with Employee's abilities to materially discharge his
obligations under this Agreement.
3. TERM. (a) GENERAL. The initial term of employment of the Employee
hereunder shall commence as of the date hereof (as defined in Section 7 hereof)
and continue until March 31, 2001, 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 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; and
(ii) expense reimbursements under Section 4(d) hereof for expenses incurred
in the performance of his duties hereunder prior to termination.
In addition to the foregoing, at such time as the Employee ceases to be an
employee of the Employer during 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 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).
(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 two hundred and twenty-five thousand dollars
($225,000). 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) 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.
(c) 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.
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 later 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. 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 or of the other methods of giving notice
hereunder, to the relevant address 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, c/o UroMed Corporation 0000 Xxxxxxxxxx Xxxxxxx, Xxxx 0
Xxxxxxx, XX 00000
If to the Employee, to:
UroMed Corporation 0000 Xxxxxxxxxx Xxxxxxx, Xxxx. 0 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:
/s/ Xxxxxxx X. Xxxxxxxx
_______________________
Title: Chairman of the Compensation Committee,
hereunto duly authorized, acting in such capacity, and not individually
EMPLOYEE
/s/ Xxxx X. Xxxxx
_________________
