Exhibit 10.15
December 12, 1997
Xxxxx X. Xxxxxx, M.D.
IMPATH Inc.
0000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Xxxxx:
In consideration of your service to IMPATH Inc. (the
"Company"), you and the Company agree as follows:
1. In connection with any merger or consolidation in which the
Company is not the surviving corporation and which results in the holders of the
outstanding voting securities of the Company (determined immediately prior to
such merger or consolidation) owning less than a majority of the outstanding
voting securities of the surviving corporation (determined immediately following
such merger or consolidation), or any sale or transfer by the Company of all or
substantially all its assets or any tender offer or exchange offer for or the
acquisition, directly or indirectly, by any person or group of all or a majority
of the then outstanding voting securities of the Company, all stock options for
the purchase of common stock of the Company awarded to you prior to September
12, 1997 ("Options") shall become exercisable in full, notwithstanding any
provision of the stock option plan of the Company pursuant to which the Options
were granted or of the stock option agreements or certificates evidencing the
Options, on and after (i) the fifteenth day prior to the effective date of such
merger, consolidation, sale, transfer or acquisition or (ii) the date of
commencement of such tender offer or exchange offer, as the case may be. With
respect to any Options which are incentive stock options, the provisions of the
foregoing sentence shall apply to the extent permitted by Section 422(d) of the
Code and such options in excess thereof shall, immediately upon the occurrence
of the event described in clause (i) or (ii) of the foregoing sentence, be
treated for all purposes as non-qualified stock options and shall be immediately
exercisable as such as provided in the foregoing sentence.
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2. In the event that your employment with the Company shall be
terminated by the Company without Cause (as hereinafter defined), and not as a
result of your death or Disability (as hereinafter defined), the Company shall
make a severance payment to you in an amount equal to one year's base salary
(determined at your highest annualized rate of base salary in effect during the
one-year period ending on the date of termination), payable in bi-weekly
installments during the one-year period commencing on the date of termination of
your employment. You shall be under no obligation to seek other employment or
otherwise to mitigate the Company's obligation to make such severance payment to
you; provided, however, that if you do obtain another position (whether as an
employee, consultant, partner or otherwise) during such one-year period, the
Company shall have the right to offset against such severance payment any
salary, fees, bonus or other cash compensation actually earned by you during
such one-year period from such other position. The Company shall, during such
one-year period, continue to provide you with health insurance benefits on the
same basis, including Company-paid premiums, as such benefits are provided to
employees of the Company. Your rights under the other benefit plans and programs
of the Company shall be determined in accordance with the terms of such plans
and programs as then in effect.
For purposes of this agreement, a termination of your
employment with the Company by you for Good Reason (as hereinafter defined)
shall constitute a termination of your employment by the Company without Cause.
For purposes of this agreement: "Cause" shall mean (a) your
gross neglect or willful misconduct in the discharge of your duties and
responsibilities to the Company, (b) your material and repeated failure to obey
appropriate directions from the Board of Directors of the Company which failure
has the effect of materially injuring the business or business relationships of
the Company, (c) any act of willful misappropriation by you against the Company
or (d) your indictment, conviction or plea of guilty or nolo contendere with
respect to a felony crime; "Good Reason" shall mean (a) a reduction in your base
salary from the annualized rate in effect on the date hereof or as hereafter
increased or (b) a demotion in your position with the Company or change in your
duties and responsibilities inconsistent with your position, which reduction,
demotion or change shall not have been corrected by the Company within ten (10)
days following notice thereof by you to the Company; and "Disability" shall mean
your failure by reason of sickness, accident or physical or mental disability to
substantially perform the duties and
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responsibilities of your employment with the Company for a period of six (6)
months in any period of twelve (12) consecutive months.
3. You agree that, in consideration of your employment with
the Company, you will not, during the period of your employment with the Company
and thereafter for a period of one (1) year commencing on the date of
termination of your employment with the Company, (a) engage, directly or
indirectly, whether as principal, agent, distributor, representative,
consultant, employee, partner, stockholder, limited partner or other investor
(other than an investment of not more than (i) five percent (5%) of the stock or
equity of any corporation the capital stock of which is publicly traded or (ii)
five percent (5%) of the ownership interest of any limited partnership or other
entity) or otherwise, in any business in competition with the business then
conducted by the Company or any of the Company's subsidiaries (the Company and
the Company's subsidiaries, being hereinafter collectively referred to as the
"Company Group"), or (b) solicit or entice or endeavor to solicit or entice away
from any member of the Company Group any person who was an employee of any
member of the Company Group, either for your own account or for any individual,
firm or corporation, or employ, directly or indirectly, any person who was
during the one (1) year period ending on the date of termination of your
employment an employee of any member of the Company Group.
4. In the event of a breach or threatened breach by you of any
of the provisions of Section 3 of this agreement, you hereby consent and agree
that the Company shall (i) be entitled to cease payment of the severance
referred to in Section 2 of this agreement and (ii) be entitled to an injunction
or similar equitable relief from any court of competent jurisdiction restraining
you from committing or continuing any such breach or threatened breach or
granting specific performance of any act required to be performed by you under
any of such provisions, without the necessity of showing any actual damage or
that money damages would not afford an adequate remedy and without the necessity
of posting any bond or other security. Nothing herein shall be construed as
prohibiting the Company from pursuing any other remedies at law or in equity
which it may have with respect to any such breach or threatened breach.
5. This agreement shall be deemed a contract made under, and
for all purposes shall be construed in accordance with, the laws of the State of
New York applicable to contracts to be performed entirely within such State.
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6. This agreement contains all the understandings and
representations between the parties hereto pertaining to the subject matter
hereof.
7. No provision of this agreement may be amended or modified
unless such amendment or modification is agreed to in writing and signed by you
and by a duly authorized representative of the Company.
8. Should any provision of this agreement be held by a court
or arbitration panel of competent jurisdiction to be enforceable only if
modified, such holding shall not affect the validity of the remainder of this
agreement, the balance of which shall continue to be binding upon the parties
hereto with any such modification to become a part hereof and treated as though
originally set forth in this agreement. The parties further agree that any such
court or arbitration panel is expressly authorized to modify any such
unenforceable provision of this agreement in lieu of severing such unenforceable
provision from this agreement in its entirety, whether by rewriting the
offending provision, deleting any or all of the offending provision, adding
additional language to this agreement, or by making such other modifications as
it deems warranted to carry out the intent and agreement of the parties as
embodied herein to the maximum extent permitted by law. The parties expressly
agree that this agreement as so modified by the court or arbitration panel shall
be binding upon and enforceable against each of them. In any event, should one
or more of the provisions of this agreement be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions hereof, and if such provision or
provisions are not modified as provided above, this agreement shall be construed
as if such invalid, illegal or unenforceable provisions had never been set forth
herein.
9. Anything to the contrary notwithstanding, all payments
required to be made by the Company hereunder shall be subject to withholding of
such amounts relating to taxes as the Company may reasonably determine it should
withhold pursuant to any applicable law or regulation.
* * *
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Please indicate your acceptance of and agreement with the
foregoing by signing and returning this agreement to the Company, whereupon this
shall constitute a binding agreement between you and the Company.
Very truly yours,
IMPATH INC.
By /s/ Xxx X. Xxxx
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Accepted and Agreed:
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
