EXHIBIT 10.61
EMPLOYMENT CONTRACT
THIS CONTRACT is made as of the 21st day of September, 1998 between Bioject JV
Subsidiary, Inc. (the "Employer") and Xxxxxxx X. Xxxxxxx (the "Executive").
The parties agree as follows:
1. Employment. The Employer hereby employs the Executive, and the Executive
hereby has accepted employment with the Employer, as President and Chief
Executive Officer of Bioject JV Subsidiary, Inc. Executive will assume the title
of Chairman of the Board of Directors Bioject JV Subsidiary, Inc. effective
January 1, 1999. Executive's employment will be on the terms set forth in this
Contract.
2. Term. The Executive's employment under this Contract began on September 21,
1998 (the "Effective Date")and shall continue for a period of three (3) years
from that date unless terminated earlier in accordance with the provisions of
this Contract.
3. Duties. The Executive shall, during the term of this Contract, perform all
such acts and duties, and furnish such services as are consistent with the
position of President and Chief Executive Officer and shall report to the Board
of Directors of Bioject JV Subsidiary.
4. Devotion of Time. The Executive shall devote his normal productive time,
ability, and attention to the performance of his duties under this Contract.
This provision shall not be construed to prohibit the Executive from engaging in
professional, community, or other activities that will not unreasonably
interfere with the performance of his duties. Any royalties or honoraria paid to
the Executive for professional publications or speaking engagements may be
retained by him so long as the Employer does not incur any expenses relating to
their preparation or delivery.
5. Compensation. Effective September 21, 1998, the Executive's annual base
salary shall be $200,000 per year, less applicable tax withholding, payable in
equal installments on the normal payroll schedule of the Employer. The base
salary shall be reviewed annually and may be increased as determined appropriate
by the Employer.
5.1. Incentive Compensation. Executive shall be eligible for
performance-based compensation awarded in the form of stock options on an annual
basis or when specified performance milestones, as determined by the Employer's
Board of Directors, are met.
6. Benefits.
6.1 Vacation Time. The Executive shall be entitled to four (4) weeks of
vacation each year, in accordance with the Employer's policy (and prorated for
any partial year of service).
6.2 Other Benefits. The Executive shall be entitled to such other benefits
as are given to other employees of the Employer, including but not limited to
holidays, health, disability and life insurance, stock options and participation
in the 401k Retirement Savings Plan.
6.3 Stock Options. Employer's Board of Directors will grant Executive stock
options to purchase three percent (3%) of the shares of Employer's common stock
outstanding at September 21, 1998, adjusted for any stock splits subsequent to
that date and prior to the date of grant. The option will vest in equal 1/3
increments over a three-year term, with 100% vesting if Employer is sold. The
term of the option shall be seven years and the exercise price shall be the fair
market value of the Employer's stock at the date of grant, determined in
accordance with the stock incentive or option plan to be adopted by Employer's
Board of Directors (the "Plan"). The Plan will contain a mechanism to convert
shares of Employer's stock to shares of Bioject Medical Technologies, Inc. stock
after three years if Employer has not been acquired or has not had a public
offering, with a conversion formula to take into account relative values of the
two companies. The Plan, including any provisions specified in this Contract and
incorporating such other provisions as Employer's shareholders determine to be
appropriate, is subject to approval by Employer's shareholders.
6.4 Business Expenses. The Employer shall reimburse the Executive for
actual and reasonable expenses incurred by him in conducting his
responsibilities under this Contract in accordance with the Employer's policy
and practice as in effect from time to time or as otherwise approved in advance
by the Board of Directors.
7. Evaluation. The Employer, through its Board of Directors, shall evaluate the
performance of the Executive at least annually, in accordance with the customary
practice of the Employer. A representative of the Board of Directors shall meet
and discuss the evaluation format with the Executive and attempt in good faith
to agree on the development and adoption of a mutually agreeable format. If the
Employer determines that the Executive's performance is deficient in any
material respect, the Employer will describe in writing the deficiency(ies) and
suggest areas for improvement.
8. Early Termination.
8.1 Termination by Employer or Executive. Executive's employment may be
terminated at any time, for any or no reason, with or without notice by
Executive or Employer subject to the provisions of Section 8.2(a). If Executive
voluntarily terminates, no severance will be paid.
8.2 Involuntary Termination by Employer.
(a) If Executive is involuntarily terminated without "cause" before three
years from the Effective Date (other than termination pursuant to Section 8.4),
or if Executive's employment as Chief Executive Officer is not continued at his
then current Compensation pursuant to Section 5 at the conclusion of the initial
three year term, Executive will be awarded severance compensation, less
applicable withholding, equal to Executive's then current i) base salary, and,
subject to any limitations imposed by applicable laws or insurer restrictions,
ii) medical/dental insurance benefits, and iii) life insurance benefits for the
unexpired term of this Contract or twelve months, whichever is greater. Such
severance compensation shall be payable monthly. Payment of such severance
compensation shall be conditioned upon Executive agreeing to, and signing a
Waiver and Release of all claims provided by Employer (other than claims
Executive may have for the enforcement of the Waiver and Release).
(b) For purposes of this Contract, "cause" for termination includes, the
following types of conduct and circumstances: (i) breach of any material
provision of this Contract by Executive; (ii) failure or refusal by Executive to
perform such services as reasonably may be delegated by the Board of Directors;
(iii) material violation of any statutory or common law duty of loyalty to the
Employer or any of its affiliated or related entities; (iv) conduct that, in the
reasonable judgment of the Employer, adversely affects the interests of the
Employer or any of its affiliated or related entities; (v) or conduct that, in
the reasonable judgment of the Employer, creates a conflict of interest or the
appearance of a conflict of interest between Executive and the Employer or any
of its affiliated or related entities. For reasons (iv) and (v), Employer shall
provide written notice to Executive of the breach and Executive must immediately
discontinue the breaching behavior. If the behavior continues or reoccurs at any
time, Executive may be terminated for "cause" immediately and without further
notice. Employer, upon action by the Board of Directors, shall provide written
notice to the Executive of the termination. No severance shall be paid if
Executive is terminated for "cause."
8.3 Death. This Contract shall terminate automatically upon the death of
the Executive.
8.4 Disability. Absent applicable law to the contrary, if the Executive
should be disabled for more than six (6) consecutive months, this Contract may
be terminated by the Employer. The Executive shall be considered disabled if, as
a result of illness or injury, he suffers from a condition of mind or body that
prevents the performance on a full-time basis of his duties under this Contract.
In the event that the Employer terminates this Contract pursuant to this Section
8.4, Executive shall be entitled to twelve months severance compensation
effective at the date of termination and such severance compensation shall be
payable monthly and shall be equal to the excess of Executive's then current
base salary over the total of disability benefits payable to the Executive
during such twelve month period pursuant to the Employer-paid portion of
Employer's disability insurance policies. Continuation of medical/dental and
life insurance benefits will be the same as outlined in Section 8(2)(a).
9. Amendment. This Contract may be amended only by an agreement in writing
signed by both parties.
10. Waiver of Breach. The failure of either party to this Contract to insist
upon the performance of any of the terms and conditions of the Contract, or the
waiver of any breach of any of the terms and conditions of the Contract, shall
not be construed as waiving any other such term and condition in the future.
11. Validity. If, for any reason, any provision of this Contract shall be held
invalid in whole or in part, such invalidity shall not affect the remainder of
the Contract.
12. Scope/Governing Law/Resolution of Disputes. This Contract supersedes and
replaces any prior employment agreement or negotiations between the parties,
including but not limited to the Offer of Employment dated September 3, 1998.
This Contract shall be construed in accordance with and governed by the laws of
the State of Massachusetts. In the event of any disputes of any nature
whatsoever arising in connection with the execution, operation or interpretation
of this Contract (including but not limited to termination of employment but
excluding enforcement of the Confidentiality/Inventions/Noncompetition
Agreement), the parties will first attempt resolution through mutual
discussions. If the dispute cannot be resolved through discussion, the parties
agree to submit it to confidential non-binding mediation with a neutral mediator
agreed upon by the parties. If the dispute cannot be resolved through
discussions between the parties or mediation, it will be resolved by binding
arbitration in accordance with the rules of the American Arbitration Association
(or such similar rules as are mutually agreed upon by the parties). All
arbitration proceedings shall be conducted by a neutral arbitrator mutually
agreed upon by the parties. The decision of the arbitrator shall be final and
binding on all parties. The costs of arbitration shall be borne equally by the
parties.
13. Entire Agreement. This Contract contains the entire agreement between the
parties concerning the subject matter addressed herein and supersedes any other
discussions, agreements (including the offer of Employment dated September 3,
1998), representations or warranties of any kind.
BIOJECT JV SUBSIDIARY, INC.
By/s/ Xxxxx X'Xxxx 11/10/98
Xxxxx X'Xxxx, Vice Chairman Date
/s/ Xxxxxxx X. Xxxxxxx 11/9/98
Xxxxxxx X. Xxxxxxx Date
