InVivo Therapeutics Corporation One Broadway, 14th Floor Cambridge, MA 02142
InVivo
Therapeutics Corporation
Xxx
Xxxxxxxx, 00xx
Xxxxx
Xxxxxxxxx,
XX 00000
September
10, 2010
Xxxxxxxxxxx
X. Xxxxxxxxx
00
Xxxxxxxxx Xx. Xxxx 000
Xxxxxxxxx,
XX 00000
Dear
Xxxxxxxxxxx,
This
letter is to confirm our understanding with respect to (i) your future
employment by InVivo
Therapeutics Corporation or any present or future parent, subsidiary or
affiliate thereof (collectively, the “Company”), (ii) your agreement not to
compete with the Company, (iii) your agreement to protect and preserve
information and property which is confidential and proprietary to the Company
and (iv) your agreement with respect to the ownership of inventions, ideas,
copyrights and patents which may be used in the business of the Company (the
terms and conditions agreed to in this letter are hereinafter referred to as the
“Agreement”). In consideration of the mutual promises and covenants contained in
this Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby mutually acknowledged, we have agreed as
follows:
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1.
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Employment.
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(a)
Subject to the terms and conditions of this
Agreement, the Company will employ you, and you will be employed by the Company,
as Chief Science Officer reporting to the CEO. You will have the
responsibilities, duty and authority commensurate with the position of Chief
Science Officer. You will also perform such other services of an
executive nature for the Company as may be assigned to you from time to time by
the CEO and Board of Directors. The principal location will be the
Company’s facility located at Xxx Xxxxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000.
(b) Devotion to
Duties. For so long as you are employed hereunder, you will
devote substantially all of your business time and energies to the business,
science and affairs of the Company, provided that nothing contained in this
Section 1(b) will be deemed to prevent or limit your right to manage your
personal investments on your own personal time, including, without limitation,
the right to make passive investments in the securities of (i) any entity which
you do not control, directly or indirectly, and which does not compete with the
Company, or (ii) any publicly held entity so long as your aggregate direct and
indirect interest does not exceed five percent of the issued and outstanding
securities of any class of securities of such publicly held entity, and
provided, further that nothing contained in this Agreement will be deemed to
prohibit you from any involvement with any social and/or business organizations,
and accepting any directorships for companies or other
organizations.
2. Term of
Employment.
(a) Term;
Termination. Subject to the terms hereof, your employment
hereunder will commence on September 13 2010 (the “Commencement Date”) and will
continue for indefinitely (the “Term”) unless terminated as specified
herein.
Notwithstanding
the foregoing, your employment hereunder will terminate upon the first to occur
of the following:
(i) Immediately
upon your death;
(ii) By
the Company:
(A) By
written notice to you effective the date of such notice, following your failure,
due to illness, accident or any other physical or mental incapacity, to perform
the essential functions of your position for an aggregate of 90 business days
within any period of 180 consecutive business days during the term hereof as
determined by a physician selected by you (“Disability”), provided that if
applicable law provides any provision regarding disability that is more
favorable to you than that set forth herein, such more favorable provision will
govern; or
(B) By
written notice to you effective the date of such notice, for Cause (as defined
below).
(iii) By
you:
(A) At
any time by written notice to the Company effective 30 days after the date of
such notice; or
(B) By
written notice to the Company for Good Reason (as defined below) effective the
date of such notice.
(b) Definition of
“Cause”. For purposes of this Agreement, “Cause” means (i)
your conviction of a felony, either in connection with the performance of your
obligations to the Company or which otherwise materially and adversely affects
your ability to perform such obligations, (ii) your willful disloyalty or
deliberate dishonesty, (iii) the commission by you of an act of fraud or
embezzlement against the Company, or (iv) a willful material breach by you of
any material provision of this Agreement which breach is not cured within 60
days after delivery to you by the Company of written notice of such breach,
provided that if such breach is not capable of being cured within such 60 day
period, you will have a reasonable additional period to cure such breach but
only if you promptly commence and continue good faith efforts to cure such
breach. Any determination under this Section 2(b) will be made by two
thirds of the Board voting on such determination. With respect to any
such determination, the Board will act fairly and in utmost good faith and will
give you and your counsel an opportunity to appear and be heard at a meeting of
the Board or and present evidence on your behalf. No act or omission
on your part will be considered “willful” unless done, or admitted to be done,
by you in bad faith or without your reasonable belief that such act or omission
was in the best interest of the Company.
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(c) Definition of “Good
Reason”. For purposes of this Agreement, a “Good Reason” means
any of the following:
(i)
A change in the principal location at which you provide services to
the Company, without your prior written consent;
(ii) A
material adverse change by the Company in your duties, authority or
responsibilities as Chief Science Officer of the Company which causes your
position with the Company to become of less responsibility or authority than
your position as of immediately following the Commencement Date, provided that
such change is not in connection with a termination of your employment hereunder
by the Company;
(iii)
The assignment to you of duties not commensurate or consistent with your
position as Chief Science Officer of the Company without your prior written
consent;
(iv)
A reduction in your compensation or other benefits except such a reduction
in connection with a general reduction in compensation or other benefits of all
senior executives of the Company;
(v)
A material breach of this Agreement by the Company that has not been cured
within 30 days after written notice thereof by you to the Company;
(vi)
The Company ceasing to be engaged in the business of the treatment of
Neurological disease;
(vii)
A Change of Control (as defined in Section 2(d) below) of the
Company; or
(viii)
Failure by the Company to obtain the assumption of this Agreement by
any successor to the Company;
(ix)
The decision by the Company not to renew employment agreement at the end of the
term or any extensions thereof.
(d) Definition of “Change of
Control” For purposes of this Agreement, a Change of Control
means that any of the following events has occurred:
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(i)
Any person (as such term is used in Section 13(d) of the Securities Exchange Act
of 1934 (the “Exchange Act”)), other than the Company, any employee benefit plan
of the Company or any entity organized, appointed or established by the Company
for or pursuant to the terms of any such plan, together with all “affiliates”
and “associates” (as such terms are defined in Rule 12b-2 under the Exchange
Act) becomes the beneficial owner or owners (as defined in Rule I 3d-3 and 13d-5
promulgated under the Exchange Act), directly or indirectly (the “Control
Group”), of more than 50% of the outstanding equity securities of the Company,
or otherwise becomes entitled, directly or indirectly, to vote more than 50% of
the voting power entitled to be cast at elections for directors (“Voting Power”)
of the Company, provided
that a Change of Control will not have occurred if such Control Group acquired
securities or Voting Power solely by purchasing securities from the Company,
including, without limitation, acquisition of securities by one or more third
party investors such as venture capital investor(s);
(ii)
A consolidation or merger (in one transaction or a series of related
transactions) of the Company pursuant to which the holders of the Company’s
equity securities immediately prior to such transaction or series of related
transactions would not be the holders, directly or indirectly, immediately after
such transaction or series of related transactions of more than 50% of the
Voting Power of the entity surviving such transaction or series of related
transactions;
(iii) The
sale, lease, exchange or other transfer (in one transaction or a series of
related transactions) of all or substantially all of the assets of the Company;
or
(iv)
The liquidation or dissolution of the Company or the Company ceasing
to do business.
3. Compensation.
(a) Base
Salary. While you are employed hereunder, the Company will pay
you a base salary at the annual rate of $225,000 (the “Base
Salary”). The Base Salary will be reviewed and will be adjusted upward, (but not
downward) no less frequently than annually. The Base Salary will be
payable in substantially equal installments in accordance with the Company’s
payroll practices as in effect from time to time. The Company will
deduct from each such installment any amounts required to be deducted or
withheld under applicable law or under any employee benefit plan in which you
participate.
(b) Annual
Bonus. The Company will pay you a bonus of up to thirty (30%)
of your base salary on each year anniversary of the Commencement Date the
“Annual Bonus” based on your performance in accordance with criteria established
by you and the Board, provided that in no event will the Annual Bonus be less
than $22,500.
(c) Equity
Compensation. You will be granted options to purchase shares
of the Common Stock (the “Performance Option”). The exercise price for the
Performance Option will be the fair market value per share of the Common Stock
on the date the Performance Option is granted. The Performance Option (i) will
be an incentive stock option to the extent permissible under applicable law,
(ii) will become vested and exercisable based upon the achievement as determined
by the Board, (iii) will otherwise be on terms and conditions substantially
similar to the Option and (iv) will be evidenced by a stock option agreement
substantially similar to the Option Agreement.
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(d) Vacation. You
will be entitled to paid vacation in each calendar year and paid holidays and
personal days in accordance with the Company’s policies for its senior
executives as in effect from time to time, but not less than 10 days paid
vacation, 5 paid sick days, and 3 paid personal days in each calendar
year. Accrued unused vacation may not be carried over from year to
year.
(e) Fringe
Benefits. You will be entitled to participate in the same
manner as other senior executives of the Company in any employee benefit plans
which the Company provides or may establish for the benefit of its senior
executives generally (including, without limitation, group life, disability,
medical, dental and other insurance, tax benefit and planning services, 401(k),
flexible spending account, retirement, pension, profit-sharing and similar
plans) (collectively, the “Fringe Benefits”), provided that the Fringe Benefits
will not include any stock option or similar plans relating to the grant of
equity securities of the Company. The company will pay annual
membership fees for you to maintain membership at the Union League of
Philadelphia. The Company will furnish for your use a late model
automobile/Truck, or provide a $750.00 monthly payment to cover the cost of a
late model. In addition all gasoline for the vehicle will be paid for
by the company.
(f) Life Insurance; Disability
Insurance. The Company, at its expense, will purchase life
insurance on your life in the face amount of not less than $500,000.00 on with a
beneficiary designated by you. The Company will also
arrange disability insurance on your behalf [and at your expense] with annual
benefits in an amount equal to 60% of your Base Salary. The Company
will take such steps as are reasonable, including a tax gross up, to ensure that
you or your beneficiaries do not incur any tax liability with regard to either
the amount of the premium payment or the benefits payable from such
insurance.
(g) Reimbursement of
Expenses. The Company will reimburse you for all ordinary and
reasonable out-of-pocket business expenses that are incurred by you in
furtherance of the Company’s business in accordance with the Company’s policies
with respect thereto as in effect from time to time.
(h) Indemnification. The
Company will indemnify you to the extent permitted by its charter and by-laws
and by applicable law against all costs, charges and expenses, including,
without limitation, attorneys’ fees, incurred or sustained by you in connection
with any action, suit or proceeding to which you may be made a party by reason
of being an officer, director or employee of the Company. In
connection with the foregoing, you will be covered under any liability insurance
policy that protects other officers of the Company.
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4. Severance
Compensation.
(a) Definition of Accrued
Obligations. For purposes of this Agreement, “Accrued
Obligations” means (i) the portion of your Base Salary as has accrued prior to
any termination of your employment with the Company and has not yet been paid,
(ii) an amount equal to the value of your accrued unused vacation days, (iii)
the amount of any Annual Bonus earned and accrued but not yet paid and (iv) the
amount of any expenses properly incurred by you on behalf of the Company prior
to any such termination and not yet reimbursed.
(b) Death or
Disability. If your employment hereunder is terminated as a
result of your death or Disability:
(i)
The Company will pay the Accrued Obligations to you (or your estate)
promptly following such termination.
(ii)
The Company will continue to pay you (or your estate) an
amount equal to the Base Salary at the rate in effect at the date of such
termination in accordance with Section 3(a) of this Agreement for the period
commencing on the date of such termination and ending six (6) months
thereafter.
(iii)
The Company will continue to provide you or your covered
beneficiaries with the Fringe Benefits for so long as it is obligated to
continue payments equal to the Base Salary pursuant to Section 4(b)(ii) above,
subject to applicable law and the terms of the respective policies.
(c) Termination for Cause or in
the Absence of a Good Reason. If your employment hereunder is
terminated either by the Company for Cause or by you in the absence of a Good
Reason (either pursuant to Section 2(a)(iii)(A) above or by delivery by you of a
Non-Renewal Notice), the Company will pay the Accrued Obligations to you
promptly following such termination.
(d) Termination Without Cause or
for a Good Reason. If your employment hereunder is terminated
either by the Company without Cause (either pursuant to Section 2(a)(ii)(c)
above or by delivery of a Non-Renewal Notice by the Company) or by you for a
Good Reason:
(i)
The Company will pay the Accrued Obligations
to you promptly following such termination.
(ii)
The Company will continue to pay you an amount equal to the Base Salary at
the rate in effect at such termination in accordance with Section 3(a) of this
Agreement for the period commencing on the date of such termination and for a
period of eighteen (18) months.
(iii)
The Company will continue to provide you with the Fringe Benefits
for so long as it is obligated to continue payments equal to the Base Salary
pursuant to Section 4(d)(ii) above, subject to applicable law and the terms of
the respective policies.
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(iv)
The Company will continue to pay you the Annual Bonus in
accordance with Section 3(b)(ii) of this Agreement during the period commencing
on the date of such termination and ending on the date of the end of the then
current Term. The amount of such bonus after the date of such
termination will equal the greater of (A) the last such bonus paid before the
date of such termination, or (B) the average of three most recent such bonuses
paid before the date of such termination (and all such prior bonuses if less
than three).
(e) No Duty to
Mitigate. Notwithstanding any other provision of this
Agreement, (i) you will have no obligation to mitigate your damages for any
breach of this Agreement by the Company or for any termination of this
Agreement, whether by seeking employment or otherwise and (ii) the amount of any
benefit due to you after the date of such termination pursuant to this Agreement
will not be reduced or offset by any payment or benefit that you may receive
from any other source.
5. Prohibited
Competition.
(a) Certain Acknowledgements and
Agreements.
(i)
We have discussed, and you recognize and acknowledge the
competitive and proprietary aspects of the business of the Company.
(ii)
You acknowledge that a business will be deemed competitive with the
Company if it performs any of the services or manufactures or sells any of the
products provided or offered by the Company or if it performs any other services
and/or engages in the production, manufacture, distribution or sale of any
product similar to services or products, which services or products were
performed, produced, manufactured, distributed or sold by the Company during the
period while you are employed hereunder.
(iii)
You further acknowledge that, while you are employed
hereunder, the Company will furnish, disclose or make available to you
Confidential Information (as defined below) related to the Company’s business
and that the Company may provide you with unique and specialized
training. You also acknowledge that such Confidential Information and
such training have been developed and will be developed by the Company through
the expenditure by the Company of substantial time, effort and money and that
all such Confidential Information and training could be used by you to compete
with the Company.
(iv)
For purposes of this Agreement, “Confidential Information” means
confidential and proprietary information of the Company, whether in written,
oral, electronic or other form, including but not limited to, information and
facts concerning business plans, customers, future customers, suppliers,
licensors, licensees, partners, investors, affiliates or others, training
methods and materials, financial information, sales prospects, client lists,
inventions, or any other scientific, technical or trade secrets of the Company
or of any third party provided to you or the Company under a condition of
confidentiality, provided that Confidential Information will not include
information that is (1) in the public domain other than through any fault or act
by you, (2) known to you prior to its disclosure to you in the course of your
employment hereunder, or (3) lawfully disclosed to you by a source other than
the Company which source has a legal right to disclose such
information.
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(b) Non-Competition;
Non-Solicitation. During the period while you are employed
hereunder and for a period of two years following the termination of your
employment hereunder for any reason or for no reason you will not, without the
prior written consent of the Company:
(i)
For yourself or on behalf of any other person or entity,
directly or indirectly, either as principal, partner, stockholder, officer,
director, member, employee, consultant, agent, representative or in any other
capacity, own, manage, operate or control, or be concerned, connected or
employed by, or otherwise associate in any manner with, engage in, or have a
financial interest in, any business which is directly or indirectly competitive
with the business of the Company (each, a “Restricted Activity”) within a 75
mile radius of the Company’s facility located at Xxx Xxxxxxxx 00xx Xxxxx,
Xxxxxxxxx, XX 00000 (the “Restricted Territory”), except that (A)
nothing contained herein will preclude you from purchasing or owning securities
of any such business if such securities are publicly traded, and provided that
your holdings do not exceed [three] percent of the issued and outstanding
securities of any class of securities of such business, and (B) nothing
contained herein will prevent you from engaging in a Restricted Activity for or
with respect to any subsidiary, division or affiliate or unit (each, a “Unit”)
of an entity if that Unit is not engaged in any business which is competitive
with the business of the Company, irrespective of whether some other Unit of
such entity engages in such competition (as long as you do not engage in a
Restricted Activity for such other Unit); or
(ii)
Either individually or on behalf of or through any third party,
directly or indirectly, solicit, divert or appropriate or attempt to solicit,
divert or appropriate, for the purpose of competing with the Company, any
customers or patrons of the Company, or any prospective customers or patrons
with respect to which the Company has developed or made a sales presentation (or
similar offering of services); or
(iii)
Either individually or on behalf of or through any third party,
solicit, entice or persuade or attempt to solicit, entice or persuade any
employee of or consultant to the Company to leave the service of the
Company.
Notwithstanding
the above, the Company acknowledges that this Agreement is not intended to
interfere with your future job opportunities.
(c) Survival of Acknowledgements
and Agreements. Your acknowledgements and agreements set forth
in this Section 5 will survive the termination of your employment hereunder for
any reason or for no reason.
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6. Protected
Information. You will at all times, both during the period
while you are employed hereunder and after the termination of your employment
hereunder for any reason or for no reason, maintain in confidence and will not,
without the prior written consent of the Company, use, except in the course of
performance of your duties for the Company or by court order, disclose or give
to others any Confidential Information. Upon the termination of your
employment hereunder for any reason or for no reason, you will return to the
Company all tangible Confidential Information and copies thereof (regardless how
such Confidential Information or copies are maintained).
7. Ownership of Ideas,
Copyrights and Patents.
(a) Property of the
Company. All ideas, discoveries, creations, manuscripts and
properties, innovations, improvements, know-how, inventions, designs,
developments, apparatus, techniques, methods, biological processes, cell lines,
laboratory notebooks and formulae (collectively the “Inventions”) which may be
used in the business of the Company, whether patentable, copyrightable or not,
which you may conceive, reduce to practice or develop while you are employed
hereunder, alone or in conjunction with another or others, and whether at the
request or upon the suggestion of the Company or otherwise, will be the sole and
exclusive property of the Company, and that you will not publish any of the
Inventions without the prior written consent of the Company. You
hereby assign to the Company all of your right, title and interest in and to all
of the foregoing.
(b) Cooperation. At
any time during your employment hereunder or after the termination of your
employment hereunder for any reason or for no reason, you will fully cooperate
with the Company and its attorneys and agents in the preparation and filing of
all papers and other documents as may be required to perfect the Company’s
rights in and to any of such Inventions, including, but not limited to, joining
in any proceeding to obtain letters patent, copyrights, trademarks or other
legal rights with respect to any such Inventions in the United States and in any
and all other countries, provided that the Company will bear the expense of such
proceedings, and that any patent or other legal right so issued to you
personally will be assigned by you to the Company or its designee without charge
by you. The Company will reimburse you for reasonable expenses
incurred by you in connection with the performance of your obligations under
this Section 7.
8. Records. Upon
termination of your employment hereunder for any reason or for no reason, you
will deliver to the Company any property of the Company which may be in your
possession, including products, materials, memoranda, notes, records, reports or
other documents or photocopies of the same.
9. Insurance. The
Company, in its sole discretion, may apply for and purchase key person life
insurance on your life in an amount determined by the Company with the Company
as beneficiary. You will submit to any medical or other examinations
and to execute and deliver any applications or other instruments in writing that
are reasonably necessary to effectuate such insurance.
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10. General.
(a) Notices. All
notices, requests, consents and other communications hereunder will be in
writing, will be addressed to the receiving party’s address set forth above or
to such other address as a party may designate by notice hereunder, and will be
either (i) delivered by hand, (ii) sent by overnight courier, or (iii) sent by
registered or certified mail, return receipt requested, postage prepaid. All
notices, requests, consents and other communications hereunder will be deemed to
have been given either (i) if by hand, at the time of the delivery thereof to
the receiving party at the address of such party set forth above, (ii) if sent
by overnight courier, on the next business day following the day such notice is
delivered to the courier service, or (iii) if sent by registered or certified
mail, on the fifth business day following the day such mailing is
made.
(b) Entire
Agreement. This Agreement and the other agreements
specifically referred to herein, embodies the entire agreement and understanding
between the parties hereto with respect to the subject matter hereof and
supersedes all prior oral or written agreements and understandings relating to
the subject matter hereof. No statement, representation, warranty, covenant or
agreement of any kind not expressly set forth in this Agreement will affect, or
be used to interpret, change or restrict, the express terms and provisions of
this Agreement.
(c) Modifications and
Amendments. The terms and provisions of this Agreement may be
modified or amended only by written agreement executed by the parties
hereto.
(d) Waivers and
Consents. The terms and provisions of this Agreement may be
waived, or consent for the departure therefrom granted, only by written document
executed by the party entitled to the benefits of such terms or provisions. No
such waiver or consent will be deemed to be or will constitute a waiver or
consent with respect to any other terms or provisions of this Agreement, whether
or not similar. Each such waiver or consent will be effective only in the
specific instance and for the purpose for which it was given, and will not
constitute a continuing waiver or consent.
(e) Assignment. \You may not assign your
rights and obligations under this Agreement without the prior written consent of
the Company.
(f) Benefit. All
statements, representations, warranties, covenants and agreements in this
Agreement will be binding on the parties hereto and will inure to the benefit of
the respective successors and permitted assigns of each party hereto. Nothing in
this Agreement will be construed to create any rights or obligations except
among the parties hereto, and no person or entity will be regarded as a
third-party beneficiary of this Agreement.
(g) Governing
Law. This Agreement and the rights and obligations of the
parties hereunder will be construed in accordance with and governed by the law
of the State of
Delaware, without giving effect to the conflict of law principles
thereof.
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(h) Severability. The
parties intend this Agreement to be enforced as written. However, (i) if any
portion or provision of this Agreement is to any extent be declared illegal or
unenforceable by a duly authorized court having jurisdiction, then the remainder
of this Agreement, or the application of such portion or provision in
circumstances other than those as to which it is so declared illegal or
unenforceable, will not be affected thereby, and each portion and provision of
this Agreement will be valid arid enforceable to the fullest extent permitted by
law and (ii) if any provision, or part thereof, is held to be unenforceable
because of the duration of such provision, the geographic area covered thereby,
or other aspect of the scope of such provision, the court making such
determination will have the power to reduce the duration, geographic area of
such provision, or other aspect of the scope of such provision, and/or to delete
specific words and phrases (“blue-penciling”), and in its reduced or
blue-penciled form, such provision will then be enforceable and will be
enforced.
(i) Headings and
Captions. The headings and captions of the various
subdivisions of this Agreement are for convenience of reference only and will in
no way modify or affect the meaning or construction of any of the terms or
provisions hereof
(j) No Waiver of Rights, Powers
and Remedies. No failure or delay by a party hereto in
exercising any right, power or remedy under this Agreement, and no course of
dealing between the parties hereto, will operate as a waiver of any such right,
power or remedy of the party. No single or partial exercise of any right, power
or remedy under this Agreement by a party hereto, nor any abandonment or
discontinuance of steps to enforce any such right, power or remedy, will
preclude such party from any other or further exercise thereof or the exercise
of any other right, power or remedy hereunder. The election of any remedy by a
party hereto will not constitute a waiver of the right of such party to pursue
other available remedies. No notice to or demand on a party not
expressly required under this Agreement will entitle the party receiving such
notice or demand to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the party giving such
notice or demand to any other or further action in any circumstances without
such notice or demand.
(k) Counterparts. This
Agreement may be executed in two or more counterparts, and by different parties
hereto on separate counterparts, each of which will be deemed an original, but
all of which together will constitute one and the same
instrument.
REMAINDER
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If the
foregoing accurately sets forth our agreement, please so indicate by signing and
returning to us the enclosed copy of this letter.
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Very
truly yours,
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InVivo
Therapeutics Corporation
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By:
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Xxxxx
Xxxxxxxx, President & CEO
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Accepted
and Approved
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Print
Name: Xxxxxxxxxxx X. Xxxxxxxxx
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Date
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