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Exhibit 10.16
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") entered into as of this 1st day of July, 2001 between Palomar Medical Technologies,
Inc., a Delaware corporation (the "Company"), and Xxxxx X. Xxxxxxx, an individual (the "Executive"),
WITNESSETH THAT:
WHEREAS,
the Company desires to employ Executive as its Chief Executive Officer for the period and
upon and subject to the terms herein provided; and
WHEREAS,
the Company desires to be assured that Executive will not compete with the Company for the
period and within the geographical areas hereinafter specified; and
WHEREAS,
Executive is willing to agree to be employed by the Company for the period and upon and
subject to the terms herein provided; and
WHEREAS,
Executive does not desire to work for the Company in a position lower than that of Chief
Executive Officer and is willing to agree not to compete with the Company;
NOW,
THEREFORE, in consideration of the premises, the parties hereto covenant and agree as
follows:
Section
1. Term of Employment; Compensation. The Company agrees to employ Executive
from July 1, 2001 until June 30, 2003 (the “Term”) as its Chief Executive
Officer, with the responsibilities normally associated with such position (the
“Executive Position”). The Company will pay Executive for his services
during the term of his employment hereunder at an annual rate of Two Hundred Fifty
Thousand Dollars ($250,000.00) subject to increases thereafter as determined by the
Company’s Board of Directors and Compensation Committee, payable in arrears, in equal
installments, in accordance with standard Company practice, but in any event not less
often than monthly, subject only to such payroll and withholding deductions as are
required by law. Thereafter, this Agreement shall be automatically renewed for successive
periods of two (2) years, unless you or the Company shall give the other party not less
than three (3) months prior written notice of non-renewal.
Section
2. Office and Duties. Executive shall have the usual duties, responsibilities
and authority (the “Executive’s Authority”) of a Chief Executive
Officer, and shall report to the Company’s Board of Directors, and shall perform such
specific other tasks, consistent with his position as Chief Executive Officer, as may from
time to time be assigned to him by the Board of Directors. Executive shall devote
substantially all of his business time, labor, skill, undivided attention and best ability
to the performance of his duties hereunder. Executive may not, without Executive’s
consent, be required to perform Executive’s duties at any location that is more than
fifty (50) miles from the Company’s principal office in Burlington, Massachusetts,
except that Executive agrees that he will travel to whatever extent is reasonably
necessary in the conduct of the Company’s business.
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Section
3. Business Expenses. Executive shall be entitled to reimbursement for expenses
incurred by him in connection with the performance of his duties hereunder upon receipt of
vouchers therefor in accordance with such procedures as the Company has heretofore or may
hereafter establish. The Company will reimburse you for automobile expenses during the
term of this Agreement.
Section
4. Vacation During Employment. Executive shall be entitled to such reasonable
vacations as may be allowed by the Company in accordance with general practices to be
established, but in any event not less than four (4) weeks during each twelve (12) month
period.
Section
5. Additional Benefits. The Company shall make available to Executive at least
those perquisites presently granted to Executive. Nothing herein contained shall preclude
Executive, to the extent he is otherwise eligible, from participation in all group
insurance programs or other fringe benefit plans which the Company may hereafter in its
sole and absolute discretion make available generally to its employees, but the Company
shall not be required to establish or maintain any such program or plan.
Section
6. Termination by the Company. The Company shall have the right to terminate
Executive’s employment at any time for “Cause”. For purposes of this
Agreement, “Cause” shall mean (a) termination by action of a majority of
the members of the Company’s Board of Directors, acting on the written opinion of
counsel, because of Executive’s willful and continued refusal, without proper cause,
to perform substantially Executive’s duties under this Agreement; or (b) the
conviction of Executive of a felony or an act of fraud or embezzlement against the Company
or any of its divisions, subsidiaries of affiliates (which through lapse of time or
otherwise is not subject to appeal). Such termination shall be effected by written notice
thereof, personally hand delivered by the Company to Executive, and, except as hereinafter
provided, shall be effective as of the thirtieth (30th) calendar day after such notice;
provided, however, that if within such thirty (30) calendar day period Executive shall
cease Executive’s refusal and shall use Executive’s best efforts to perform such
obligations, the termination shall not be effective.
Section
7. Termination by Death. In the event Executive dies during the Term,
Executive’s employment shall terminate (effective on the date of Executive’s
death) and the provisions of Section 10 shall be applicable.
Section
8. Termination by Disability. In the event that Executive suffers a disability
which prevents Executive from substantially performing Executive’s duties under this
Agreement for a period of at least one hundred eighty (180) consecutive or nonconsecutive
calendar days within any three hundred sixty-five (365) calendar day period, the Company
shall have the right, after such one hundred eighty (180) calendar day period has elapsed,
to terminate Executive’s employment hereunder upon thirty (30) calendar days written
notice to Executive and the provisions of Section 10 shall be applicable.
Section
9. Termination by Executive. Notwithstanding any other provisions of this
Agreement, Executive may terminate Executive’s employment either (i) in the event of
a “Change in Control” or (ii) by written notice served upon the Company
within thirty (30) calendar days after Executive has knowledge of an event constituting
“Good Reason.”
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For
purposes of this Agreement, “Change in Control” shall be deemed to be
(i) the sale of all or substantially all of the assets of the Company; (ii) any
person, together with its affiliates and associates (as defined in Rule 12b-2 under the
Securities Exchange Act of 1934, or any successor rule thereto) shall become the
beneficial owner (as defined in Rule 13d-3 under the Securities Exchange Act), including
by merger or otherwise, of more than fifty percent (50%) of the total voting power of all
classes of voting stock of the Company; or (iii) that any person, together with its
affiliates and associates (as defined in Rule 12b-2 under the Securities Exchange Act of
1934, or any successor rule thereto) has succeeded as the result of or in response to
actual or threatened election contests, whether by settlement or otherwise, in having
elected to the Board of Directors of the Company, whether at one time or on a cumulative
basis, a sufficient number of nominees to constitute (x) more than thirty percent (30%) of
the members of the Company’s Board of Directors, rounded down to the nearest whole
number, if the number of directors on the Company’s Board is eight or less, or
(y) more than forty percent (40%) of the members of the Company’s Board, rounded
down to the nearest whole number, if the number of directors on the Company’s Board
is nine or more.
For
purposes of this Agreement, the term “Good Reason” shall mean:
(i)
any action by the Company which results in a diminution in the Executive
Position or in the Executive’s Authority;
(ii)
any failure by the Company to timely pay the amounts or provide the benefits
described in this Agreement, other than an isolated failure not occurring in bad
faith and which is remedied promptly after receipt of written notice thereof
given by Executive; or
(iii)
a material breach by the Company of any of the provisions of this Agreement
which failure or breach shall have continued for thirty (30) days after written
notice from Executive to the Company specifying the nature of such failure or
breach; or
(iv)
any action by the Company that would result in a violation of Section 2.
Section
10. Effect of Termination. (a) For Cause; and Death. In the event of
termination of this Agreement (i) by the Company for Cause, or (ii) by reason of the death
of the Executive, the Company shall pay Executive (or Executive’s beneficiary in the
event of the Executive’s death) any base salary or other compensation earned (and a
pro rata portion of the bonus payable with respect to the year in which termination
occurred) but not paid to Executive prior to the effective date of such termination and,
in the case of termination by reason of death, the Company shall pay Executive’s
beneficiary (i) the base salary that Executive would have earned for a period of one (1)
year following his death, plus (ii) a pro rata portion of any bonuses or other incentive
compensation that Executive would have earned if he had been employed for the full fiscal
year in which he died payable at the time of payment of similar bonuses made to other
Executives of the Company, plus (iii) any death benefits that Executive is entitled to
under the Company’s policies in effect on Executive’s date of death.
(b)
Without Cause; For Good Reason. In the event of (i) termination or
non-renewal of this Agreement by the Company other than for Cause, (ii)
termination of this Agreement by Executive for Good Reason without a Change in
Control, the Company shall pay Executive, in a lump sum within thirty (30) days
after termination under this Section 10(b), the sum of (A) the amount
described in Section 10(a) of this Agreement (other than the payments to
be paid in case of termination by death), and (B) the amount equal to two times
(2x) the Executive’s Annual Compensation in effect at the time of
termination under this Section 10(b), and the Company shall continue all
of the benefits and perquisites set forth in Section 5 for a period of
two (2) years, notwithstanding the fact that Executive may no longer be an
employee eligible to participate in one or more of the employee benefit plans
maintained by the Company.
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(c)
Change in Control. In the event of termination or non-renewal of this
Agreement by Executive or the Company within one (1) year after a Change in
Control, the Company shall pay Executive, in a lump sum payment within thirty
(30) days after termination under this Section 10(c), the sum of (A) the
amount described in Section 10(a) of this Agreement (other than the
payments to be made in case of termination by death), and (B) the amount equal
to three (3x) times Executive’s Annual Compensation, and the Company shall
continue for a period of two (2) years all of the benefits and perquisites set
forth in Section 5, notwithstanding the fact that Executive may no longer
be an employee eligible to participate in one or more of the employee benefit
plans maintained by the Company.
For
purposes of this Section 10(c) of this Agreement the term “Executive’s
Annual Compensation” shall mean (i) the sum of (A) the Executive’s
then-current salary pursuant to Section 1 and (B) any bonus compensation to
which Executive would have been entitled if Executive continued to be employed under this
Agreement or the Executive’s last paid bonus, whichever is higher.
(d)
Disability. In the event of termination of this Agreement by reason of
disability, the Company shall continue to pay Executive’s Annual
Compensation at the time of such termination for a period of one (1) year,
reduced by the maximum amount of salary which may be insured under the
Company’s Long Term Disability Plan at the time of disability.
Section
11. Acceleration and Expiration of Options. Any options or warrants to purchase
capital stock of the Company (collectively, the “Options”) granted by the
Company to Executive that have not yet become exercisable shall become exercisable upon
the earliest to occur of (a) the termination of Executive’s employment as a result of
Executive’s death or disability; (b) the termination by Executive with Good Reason;
(c) the termination by Executive after a Change in Control; or (d) termination by the
Company without Cause. Notwithstanding the foregoing, all Options, whether currently
exercisable or not, shall expire and cease to be exercisable as follows:
(a)
if the Company terminates Executive’s employment for Cause, immediately
upon the effective date of such termination;
(b)
if the Company terminates the Executive’s employment without cause or if
Executive terminates Executive’s employment with the Company with Good
Reason or after a Change in Control, ninety (90) days after the effective date
of such termination (but in no event later than the date the Term would expire
without giving effect to any automatic renewal).
(c)
if Executive dies while employed by the Company, six (6) calendar months after
Executive’s death (but in no event later than the date the Term would
expire without giving effect to any automatic renewal); and
(d)
if Executive’s employment is terminated as a result of disability, six (6)
calendar months after the effective date of such termination (but in no event
later than the date the Term would expire without giving effect to any automatic
renewal).
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Section
12. Excise Tax Make-Whole. In the event it shall be determined that any payment
or distribution by the Company to you or for your benefit, whether paid or payable or
distributed or distributable pursuant to the terms of this Agreement or otherwise (a
“Payment”), would be subject to the excise tax imposed by Section 4999 of
the Internal Revenue Code of 1986, as amended (the “Code”) (or any successor
thereto) or comparable state or local tax or any interest or penalties with respect to
such excise tax or comparable state or local tax (such excise tax, together with any such
interest and penalties, are hereinafter collectively referred to as the “Excise
Tax”), then you shall be entitled to receive an additional payment (a
“Gross-Up Payment”). The Gross-Up Payment shall be equal to the sum of
the Excise Tax with respect to the Payment and all taxes (including any interest or
penalties imposed with respect to such taxes) imposed on (or economically borne by) you
(including the Excise Tax, state and federal income taxes and all applicable withholding
taxes) attributable to the receipt of the Gross-Up Payment. For purposes of the preceding
sentence, all taxes attributable to the receipt by you of a Gross-Up Payment shall be
computed assuming the application of the maximum tax rates provided by law.
If
the Company determines that it is required to withhold any Excise Tax or report that any
Excise Tax is due, or if the Company otherwise determines that any Gross-Up Payment is
required, it shall promptly pay such Gross-Up Payment (net of applicable wage
withholding).
If
you determine that a Gross-Up Payment is required, you shall so notify the Company in
writing, specifying the amount of Gross-Up Payment required and details as to the
calculation thereof. The Company shall, within 30 days, either pay such Gross-Up Payment
(net of applicable wage withholding) to you or furnish an unqualified opinion from
Independent Tax Counsel (as defined below), addressed to you and the Company, that there
is substantial authority (within the meaning of Section 6661 of the Code) for the position
that no Gross-Up Payment is required. In that event the Company shall not withhold any
amount of the Excise Tax or take any other action which is inconsistent with such opinion
of counsel. “Independent Tax Counsel” means a lawyer with expertise in
the area of executive compensation tax law, who shall be selected by you and shall be
reasonably acceptable to the Company, and whose fees and disbursements shall be paid by
the Company.
If
the Internal Revenue Service or other tax authority proposes in writing an adjustment to
your income tax that would result in a Gross-Up Payment, you shall promptly notify the
Company in writing and shall refrain for at least thirty days after giving such notice, if
so permitted by law, from paying any tax (including interest, penalties and additions to
tax) asserted to be payable as a result of such proposed adjustment. Before the expiration
of such period, the Company shall either pay the Gross-Up Payment or provide an opinion
from Independent Tax Counsel to you and the Company as to whether it is more likely than
not that the proposed adjustment would be successfully challenged if the matter were to be
litigated. If the opinion provides that a challenge would be more likely than not to be
successful if the issue were litigated, and the Company requests in writing that you
contest such proposed adjustment, then you shall contest the proposed adjustment and shall
consult in good faith with the Company with respect to the nature of all action to be
taken in furtherance of the contest of such proposed adjustment; provided that you, after
such consultation with the Company, shall determine in your sole discretion the nature of
all action to be taken to contest such proposed adjustment, including (a) whether any such
action shall initially be by way of judicial or administrative proceedings, or both, (b)
whether any such proposed adjustment shall be contested by resisting payment thereof or by
paying the same and seeking, a refund thereof, and (c) if you shall undertake judicial
action with respect to such proposed adjustment, the court or other judicial body before
which such action shall be commended and the court or other judicial body to which any
appeals should be taken. You agree to take appropriate appeals of any judicial decision
that would require the Company to pay a Gross-Up Payment, provided the Company requests in
writing that you do so and provides an opinion from Independent Tax Counsel to you and the
Company that it is more likely than not that the appeal would be successful. You further
agree to settle, compromise or otherwise terminate a contest with the Internal Revenue
Service or other tax authority with respect to all or a portion of the proposed adjustment
giving rise to the Gross-Up Payment, if requested by the Company in writing to do so at
any time, in which case you shall be entitled to receive from the Company the Gross-Up
Payment. In no event shall you compromise or settle all or any portion of a proposed
adjustment which would result in a Gross-Up Payment without the written consent of the
Company.
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You
shall not be required to take or continue any action pursuant to this Section 12
unless the Company acknowledges its liability under this Agreement in the event that the
Internal Revenue Service or other tax authority prevails in the contest and timely makes
the payments required by this paragraph. The company hereby agrees to indemnify you in a
manner reasonably satisfactory to you for any fees, expenses, penalties, interest or
additions to tax which you may incur as a result of contesting the validity of any Excise
Tax and to pay you promptly upon receipt from time to time of a written demand therefor
all costs and expenses which you may incur in connection with contesting such proposed
adjustment (including reasonable fees and disbursements of Independent Tax Counsel);
provided, however, that the Company shall not be required to reimburse any amount of tax
which you are required to pay to permit your institution of a claim for refund under this
Section 12.
If
you shall have contested any proposed adjustment as above provided, and for so long as you
shall be required under the terms of this Section 12 to continue such contest, the
Company shall not be required to pay a Gross-Up Payment until there occurs a Final
Determination (as defined below) of your liability for the tax and any interest, penalties
and additions to tax asserted to be payable as a result of such proposed adjustment. A
“Final Determination” shall mean (A) a decision, judgement, decree or
other order by any court of competent jurisdiction, which decision, judgment, decree or
other order has become final after all allowable appeals by either party to the action
have been exhausted, the time for filing such appeal has expired or you have no right
under the terms thereof to request an appeal, (B) a closing agreement entered into under
Section 7121 of the Code or any other settlement agreement entered into in connection with
an administrative or judicial proceeding and with your consent, or (C) the expiration of
the time for instituting a claim for refund, or if such a claim was filed, the expiration
of the time for instituting suit with respect thereto.
In
the event you receive any refund from the Internal Revenue Service or other tax authority
on account of an overpayment of Excise Tax, such amount, shall be promptly paid by you to
the Company.
Section
13. No Mitigation; No Offset. Executive shall be under no obligation to
mitigate damages or the amount of any payment provided for under this Agreement by seeking
other employment or otherwise, and there shall be no offset against amounts due Executive
under this Agreement on account of any remuneration attributable to any subsequent
employment that Executive may obtain.
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Section
14. Disclosure and Assignment of Intellectual Property.
(a)
Executive agrees that the Company, and its successors and assigns shall own all
right, title and interest throughout the world in and to all research,
information, inventions, designs, procedures, developments, discoveries,
improvements, patents and applications therefor, trademarks and applications
therefor, copyrights and applications therefor, trade secrets, drawings, plans,
systems, methods, specifications, and all other manufacturing, engineering,
technical, research and development data and know-how (herein sometimes
“Intellectual Property”) made, conceived, developed and/or
acquired by him solely or jointly with others during the period of his
employment with the Company or within one year thereafter, which relate to the
manufacture, production or processing of any products developed or sold by the
Company during the term of this Agreement or which are within the scope of or
usable in connection with the Company’s business as it may, from time to
time, hereafter be conducted or proposed to be conducted, whether or not made
during my regular working hours and whether or not made on the Company’s
premises.
(b)
Executive agrees that any such Intellectual Property shall constitute a work
made for hire under the copyright laws of the United States and, to the extent
any such Intellectual Property shall be determined not to be a work made for
hire, Executive hereby assigns, and, to the extent any such assignment cannot be
made at the present time, Executive hereby agrees to assign, to the Company all
of my right, title and interest throughout the world, including, without
limitation, copyright, patent and trade secret rights, in and to the
Intellectual Property, together with Executive’s right to file for and/or
own wholly without restriction United States and foreign patents, trademarks and
copyrights with respect thereto. Executive specifically agrees and acknowledges
that the foregoing assignment covers all results, outputs and products of his
work for the Company prior to January 1, 1997, whether as an employee or as a
consultant, and all related copyrights, patents and other proprietary rights,
and that all such results, outputs and products shall be Intellectual Property
hereunder and the sole property of the Company hereafter.
(c)
Executive agrees to execute all appropriate patent applications securing all
United States and foreign patents on all Intellectual Property, and to do,
execute and deliver any and all acts and instruments that may be necessary or
proper to vest all Intellectual Property in the Company or its nominee or
designee and to enable the Company, or its nominee or designee, to obtain all
such patents; and Executive agrees to render to the Company, or its nominee or
designee, all such assistance as it may require in the prosecution of all such
patent applications and applications for the re-issue of such patents, and in
the prosecution or defense of all interferences which may be declared involving
any of said patent applications or patents, but the expense of all such
assignments and patent applications, or all other proceedings referred to herein
above, shall be borne by the Company. Executive shall be entitled to fair and
reasonable compensation for any such assistance requested by the Company or its
nominee or designee and furnished by him after the termination of his
employment. Executive shall make and maintain adequate and current written
records of all Intellectual Property, and Executive shall disclose all
Intellectual Property promptly, fully and in writing to the Company immediately
upon development of the same and at any time upon request.
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Section
15. Confidentiality. Executive shall not, either during the period of his
employment with the Company or thereafter, reveal or disclose to any person outside the
Company or use for his own benefit, without the Company’s specific written
authorization, whether by private communication or by public address or publication or
otherwise, any Confidential Information, as hereinafter defined. The term
“Confidential Information” as used throughout this Agreement shall mean
all trade secrets, proprietary information and other data or information (and any tangible
evidence, record or representation thereof), whether prepared, conceived or developed by
an employee of the Company or received by the Company from an outside source, which is in
the possession of the Company (whether or not the property of the Company), which in any
way relates to the present or future business of the Company, which is maintained in
confidence by the Company, or which might permit the Company or its customers to obtain a
competitive advantage over competitors who do not have access to such trade secrets,
proprietary information, or other data or information. All originals and copies of any of
the foregoing, relating to the business of the Company, however and whenever produced,
shall be the sole property of the Company, not to be removed from the premises or custody
of the Company without in each instance first obtaining written consent or authorization
of the Company. Upon the termination of Executive’s employment in any manner or for
any reason, Executive shall promptly surrender to the Company all copies of any of the
foregoing, together with any other documents, materials, data, information and equipment
belonging to or relating to the Company’s business and in his possession, custody or
control, and Executive shall not thereafter retain or deliver to any other person, any of
the foregoing or any summary or memorandum thereof.
Section
16. Restriction. The Company has invested and may in the future be required to
invest substantial sums of money, directly or indirectly, to continue and expand the
business heretofore conducted by it and in connection therewith, and as Executive
recognizes that the Company would be substantially injured by Executive disclosing to
others, or by Executive using for his own benefit, any Intellectual Property or any of the
other types of information referred to in Section 15 as Confidential Information,
Executive agrees that during the period of his employment hereunder and for a period
ending twelve (12) months after the term of this Agreement:
(a)
He will not, directly or indirectly, for his own account or as employee,
officer, director, partner, joint venturer or otherwise, engage within the
United States or Canada, in any phase of the business of manufacturing,
distributing or selling of lasers for use in medical or cosmetic procedures.
(b)
Executive shall not solicit, induce, attempt to hire, or hire any employee of
the Company (or any other person who may have been employed by the Company
during the term of his employment with the Company), or assist in such hiring by
any other person or business entity or encourage any such employee to terminate
his or her employment with the Company.
Executive
and the Company are of the belief that the period of time, the geographic area and the
range of activities limited by this Section 16 are reasonable, in view of the
nature of the business in which the Company is engaged and proposes to engage, the state
of its product development and Executive’s knowledge of this business. However, if
such period, or range of activities area should be adjudged unreasonable in any judicial
proceeding, then the period of time shall be reduced by such number of months, such area
shall be reduced by elimination of such portion of such area, and/or such range of
activities shall be reduced by elimination of such activities, as are deemed unreasonable,
so that this covenant may be enforced in such area and during such period of time as is
adjudged to be reasonable.
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Section
17. Notices. All notices and other communications hereunder shall be in writing
and shall be deemed to have been given when delivered or three (3) days after mailing if
mailed by first-class, registered or certified mail, postage prepaid, addressed (a) if to
Executive, at the address set forth below his name on the signature page hereof, or to
such other person(s) or addresses) as Executive shall have furnished to the Company in
writing; and (b) if to the Company, at 00 Xxxxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000, Attn:
Human Resource Department, with a copy to General Counsel, Palomar Medical Technologies,
Inc., 00 Xxxxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000, or to such other person(s) or addresses
as the Company shall have furnished to Executive in writing.
Section
18. Assignability. In the event that the Company shall be merged with, or
consolidated into, any other corporation, or in the event that it shall sell and transfer
substantially all of its assets to another corporation, the terms of this Agreement shall
inure to the benefit of, and be assumed by, the corporation resulting from such merger or
consolidation, or to which the Company’s assets shall be sold and transferred. This
Agreement shall not be assignable by Executive, but it shall be binding upon, and shall
inure to the benefit of, his heirs, executors, administrators and legal representatives.
Section
19. Entire Agreement. This Agreement contains the entire agreement between the
Company and Executive with respect to the subject matter hereof and there have been no
oral or other agreements of any kind whatsoever as a condition precedent or inducement to
the signing of this Agreement or otherwise concerning this Agreement or the subject matter
hereof. This Agreement is given in consideration for the parties agreeing that this
Agreement supersedes all previous Employment Agreements and Severance Agreements that
might have been in effect at the time of this Agreement by and between the Executive and
the Company and/or its subsidiaries.
Section
20. Expenses. The Company shall pay to the Executive all reasonable legal and
arbitration fees and expenses incurred by the Executive in obtaining or enforcing any
right or benefit provided by this Agreement, except in cases involving frivolous or bad
faith litigation
Section
21. Equitable Relief. Executive recognizes and agrees that the Company’s
remedy at law for any breach of the provisions of Sections 15, 16 or 17
hereof would be inadequate, and he agrees that for breach of such provisions, the Company
shall, in addition to such other remedies as may be available to it at law or in equity or
as provided in this Agreement, be entitled to injunctive relief and to enforce its rights
by an action for specific performance to the extent permitted by law.
Section
22. Waivers and Further Agreements. Any waiver of any terms or conditions of
this Agreement shall not operate as a waiver of any other breach of such terms or
conditions or any other term or condition, nor shall any failure to enforce any provision
hereof operate as a waiver of such provision or of any other provision hereof; provided,
however, that no such written waiver, unless it, by its own terms, explicitly provides to
the contrary, shall be construed to effect a continuing waiver of the provision being
waived and no such waiver in any instance shall constitute a waiver in any other instance
or for any other purpose or impair the right of the party against whom such waiver is
claimed in all other instances or for all other purposes to require full compliance with
such provision. Each of the parties hereto agrees to execute all such further instruments
and documents and to take all such further action as the other party may reasonably
require in order to effectuate the terms and purposes of this Agreement.
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Section
23. Amendments. This Agreement may not be amended, nor shall any waiver,
change, modification, consent or discharge be effected except by an instrument in writing
executed by or on behalf of the party against whom enforcement of any waiver, change,
modification, consent or discharge is sought.
Section
24. Severability. If any provision of this Agreement shall be held or deemed to
be, or shall in fact be, invalid, inoperative or unenforceable as applied to any
particular case in any jurisdiction or jurisdictions, or in all jurisdictions or in all
cases, because of the conflicting of any provision with any constitution or statute or
rule of public policy or for any other reason, such circumstance shall not have the effect
of rendering the provision or provisions in question, invalid, inoperative or
unenforceable in any other jurisdiction or in any other case or circumstance or of
rendering any other provision or provisions herein contained invalid, inoperative or
unenforceable to the extent that such other provisions are not themselves actually in
conflict with such constitution, statute or rule of public policy, but this Agreement
shall be reformed and construed in any such jurisdiction or case as if such invalid,
inoperative or unenforceable provision had never been contained herein and such provision
reformed so that it would be valid, operative and enforceable to the maximum extent
permitted in such jurisdiction or in such case.
Section
25. 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, and in pleading or proving any provision of this Agreement, it
shall not be necessary to produce more than one of such counterparts.
Section
26. Section Headings. The headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
Section
27. General Provisions.
(a)
Executive further agrees that his obligations under Sections 15, 16 and
17 of this Agreement shall be binding upon him irrespective of the
duration of his employment by the Company, the reasons for any cessation of his
employment by the Company, or the amount of his compensation and shall survive
the termination of this Agreement (whether such termination is by the Company,
by Executive, upon expiration of this Agreement or otherwise).
(b)
Executive represents and warrants to the Company that he is not now under any
obligations to any person, firm or corporation, and has no other interest which
is inconsistent or in conflict with this Agreement, or which would prevent,
limit or impair, in any way, the performance by him of any of the covenants or
his duties in his said employment.
Section
28. Gender. Whenever used herein, the singular number shall include the plural,
the plural shall include the singular, and the use of any gender shall include all
genders.
Section
29. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the law (other than the law governing conflict of law
questions) of the Commonwealth of Massachusetts.
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IN WITNESS WHEREOF, the parties
have executed or caused to be executed this Agreement as of the date first above written.
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