Exhibit 10.30
REIMBURSEMENT AGREEMENT
This REIMBURSEMENT AGREEMENT is made as of May 18, 2000, by and between
Transkaryotic Therapies, Inc., a Delaware corporation (the "Company") and
Xxxxxxx X. Xxxxxxx (the "Borrower").
WHEREAS, the Borrower has been instructed to post a $450,000 bond (the
"Bond") due to the appeal of a district court ruling of an arrearage owed by the
Borrower; and
WHEREAS, to secure the Bond, the Borrower has requested that the
Company provide the security and collateral for an irrevocable letter of credit,
substantially in the form of EXHIBIT A hereto (the "Letter of Credit"), in an
amount not to exceed $450,000;
NOW THEREFORE, in consideration of the agreements herein, the parties
hereto agree as follows:
In order to induce the Company to secure and collateralize the Letter
of Credit, the Borrower hereby agrees upon demand by the Company, to reimburse
or pay to the Company with respect to the Letter of Credit issued, extended or
renewed by the Company hereunder, (a) (i) any amount paid by the Company under
or with respect to such Letter of Credit, and (ii) the amount of any taxes,
fees, charges or other costs and expenses whatsoever incurred by the Company in
connection with any payment made by the Company under, or with respect to, such
Letter of Credit and (b) interest on the unpaid balance of any amounts paid by
the Company under or with respect to the such Letter of Credit from the date on
which such payment was made (the "Inception Date"). The interest rate applicable
during each calendar year or portion thereof from and after the Inception Date
shall be the rate equal to one per cent (1%) per annum above the average yield
in per cent per annum prevailing in the secondary market for one-year United
States Treasury Bills as of the last day in such calendar year on which such
market is open, as reported in Federal Reserve Statistical Release H-15.
Interest shall be computed on the basis of a year of 365 days for the actual
number of days elapsed. All payments made by the Borrower shall be in
immediately available funds.
If any demand for payment shall be made under the Letter of Credit, the
Company shall promptly notify the Borrower of the date and amount of the demand
for payment and of the date and time when it expects to honor such demand for
payment. The responsibility of the Company to the Borrower shall be only to
determine that the documents delivered under the Letter of
Credit in connection with such presentment shall be in conformity in all
material respects with the requirements of such Letter of Credit.
To the extent permitted by applicable law, any sums credited by or due
from the Company to the Borrower, including, but not limited to, wages, bonuses
and other amounts payable to the Borrower by the Company during or after the
termination of the Borrower's employment by the Company, may at any time be
applied to or offset against the Borrower's obligations hereunder.
Should the indebtedness evidenced by this Reimbursement Agreement or
any part thereof be collected by action at law, or in bankruptcy, receivership
or other court proceedings, or should this Reimbursement Agreement be placed in
the hands of attorneys for collection after default, the Borrower agrees to pay,
upon demand by the holder hereof, in addition to principal and other sums, if
any, due and payable hereon, court costs and reasonable attorneys' fees and
other collection charges and expenses, unless prohibited by law.
Every amount under this Reimbursement Agreement remaining unpaid for
five (5) days following demand by the Company shall bear interest from and after
the date on which such amount first became overdue at an annual rate which is
two (2) percentage points above the rate specified in this Reimbursement
Agreement. Such interest on overdue amounts under this Reimbursement Agreement
shall be payable on demand and shall accrue and be compounded monthly until the
obligation of the Borrower with respect to the payment of such interest has been
discharged (whether before or after judgment).
The Borrower and all endorsers and/or guarantors hereof (i) consent and
agree to be bound by the provisions of this Reimbursement Agreement, absolutely
and unconditionally, to pay the principal and interest of this Reimbursement
Agreement and all other charges for which the Borrower may be or become liable
hereunder as herein provided, (ii) waive trial by jury in any action on this
Reimbursement Agreement, (iii) waive presentment, notice of non-payment, notice
of protest, suit and all other conditions precedent in connection with the
collection and enforcement of this Reimbursement Agreement, (iv) waive any right
to the benefit of, or to direct the application of, any security for this
Reimbursement Agreement until all indebtedness hereunder shall have been paid in
full, and (v) waive the right to require the holder hereof to proceed against
any other person or to pursue any other remedy before proceeding against him,
and, except as otherwise required by law, waives the right to require the holder
hereof to proceed against any security before proceeding against him.
The Borrower agrees to indemnify and hold harmless the Company and its
officers, employees, affiliates, agents, and controlling persons from and
against all claims, damages, liabilities and losses of every kind arising out of
and in connection to this Reimbursement Agreement absent the gross negligence or
willful misconduct of the Company. Any communication to be made hereunder shall
(a) be made in writing, but unless otherwise stated, may be made by telex,
facsimile transmission or letter, and (b) be made or delivered to the address of
the party receiving notice which is identified with its signature below (unless
such party has by five (5) days written notice specified another address), and
shall be deemed made or delivered, when dispatched, left at that address, or
five (5) days' after being mailed, postage prepaid, to such address. This
Reimbursement Agreement shall be binding upon and inure to the benefit of each
party hereto and its successors and assigns, but the Borrower may not assign its
rights or obligations hereunder. This Reimbursement Agreement may not be amended
or waived except by a written instrument signed by the Borrower and the Company,
and any such amendment or waiver shall be effective only for the specific
purpose given. No failure or delay by the Company to exercise any right
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege preclude any other right, power or
privilege. The provisions of this Reimbursement Agreement are severable and if
any one provision hereof shall be held invalid or unenforceable in whole or in
part in any jurisdiction, such invalidity or unenforceability shall affect only
such provision in such jurisdiction. This Reimbursement Agreement expresses the
entire understanding of the parties with respect to the transactions
contemplated hereby. This Reimbursement Agreement and any amendment hereby may
be executed in several counterparts, each of which shall be an original, and all
of which shall constitute one agreement. In proving this Reimbursement
Agreement, it shall not be necessary to produce more than one such counterpart
executed by the party to be charged. THIS REIMBURSEMENT AGREEMENT IS A CONTRACT
UNDER THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS AND SHALL BE CONSTRUED IN
ACCORDANCE THEREWITH AND GOVERNED THEREBY. THE BORROWER AGREES THAT ANY SUIT FOR
THE ENFORCEMENT OF ANY OF THE REIMBURSEMENT DOCUMENTS MAY BE BROUGHT IN THE
COURTS OF THE COMMONWEALTH OF MASSACHUSETTS OR ANY FEDERAL COURT SITTING
THEREIN. THE BORROWER, AS AN INDUCEMENT TO THE COMPANY TO ENTER INTO THIS
REIMBURSEMENT AGREEMENT, HEREBY WAIVES ITS RIGHT TO A JURY TRIAL.
IN WITNESS WHEREOF, the undersigned have duly executed this
Reimbursement Agreement as a sealed instrument as of the date first set forth
above.
TRANSKARYOTIC THERAPIES, INC.
/s/ Xxxxxx X. Xxxxxxx
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By: Xxxxxx X. Xxxxxxx
Title: VP, Finance & CFO
Address:
Fax:
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Address: 000 Xxxxxxxx Xx.
Xxxxxxx, XX 00000
Fax:
