EXHIBIT 10.52
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AGREEMENT FOR SERVICES
AGREEMENT FOR SERVICES (this "Agreement") dated as of the 28th day of
December, 2003 (the "Effective Date") between Diomed Holdings, Inc., a Delaware
corporation (the "Company"), and Global Strategy Associates ("GSA"), for the
services of Xxxxx X. Xxxxx, Xx. ("Employee").
WHEREAS, GSA employs and makes available to third party employers the
service of its employees as executives, including the Employee;
WHEREAS, Employer desires to extend the period during which Employee will
provide his services to Employer for a term equal to the original term plus one
year, all on the same terms and conditions on which Employer has heretofore
engaged Employee; and
WHEREAS, Employee is willing to provide services as the director of GSA to
Employer and to serve as a member of the boards of directors of the Company and
its subsidiary, Diomed, Inc., a Delaware corporation.
NOW, THEREFORE, in consideration of the mutual covenants and promises
hereinafter stated, Employer, GSA and Employee hereby agree as follows:
1. EMPLOYMENT AND TERM.
(a) As of the Effective Date, the Company will engage GSA to provide
the services of Employee, and Employer will provide the services of Employee, to
work for the Company, as a full-time employee, for the Term (as defined in
Section 3(a)). During the Term, Employee shall serve the Company's President and
Chief Executive Officer. Employee shall also serve as president and chief
executive officer of such of the Company's subsidiary(ies) as may be mutually
agreed upon between the Company and Employee. During the Term, Employee shall be
subject to, observe and carry out such rules, regulations and policies as the
Company may from time to time reasonably establish and which are generally
applicable to senior executives of the Company. During the Term, Employee will
serve the Company faithfully and to the best of his ability and use his best
efforts to perform such services and duties of an executive nature in connection
with the business, affairs and operations of the Company as may be assigned or
delegated to him from time to time by or under the authority of the Board of
Directors of the Company (the "Board").
(b) Without limiting the generality of the foregoing, during the
Term, GSA shall require Employee not to, and Employee shall not directly or
indirectly, without the prior written consent of the Board, accept employment or
compensation from, or perform services of any nature for, any business
enterprise other than the Company; provided, that, subject to Section 5(a),
Employee may without such consent (i) serve on corporate, civic or charitable
boards or committees, with or without compensation, (ii) participate in
professional organizations and (iii) manage his personal investments, personal
business affairs and other personal matters, so long as such activities do not
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interfere in any material respect with the reasonable performance of Employee's
duties and responsibilities hereunder.
(c) Employee will serve as a member of the Board and the board of
directors of Diomed, Inc. and, except as set forth in Section 3(h), to serve
thereon until his successor is elected and qualifies.
(d) The Company represents, warrants and agrees that each of the
Company, its subsidiaries and, to its knowledge, their respective predecessors
and affiliates, has complied with and is in compliance with all material
applicable laws (including rules, regulations, codes, plans, injunctions,
orders, decrees, rulings, and charges thereunder) of federal, state local and
foreign governments (and all agencies thereof), including but not limited to all
federal and state securities or blue sky laws, and no action, suit, proceeding,
hearing, investigation, charge, complaint, claim, demand or notice has been
filed, commenced or threatened against any of them alleging failure to comply.
2. COMPENSATION.
(a) During the Term, beginning as of January 1, 2004, as base
compensation for the services of the Employee, the Company shall pay GSA the
amount of $330,000 per annum (the "Base Compensation"), payable in twenty-four
(24) equal semi-monthly installments on the 15th and the last day of each month.
During the Term, the Base Compensation may be increased from time to time as
determined by the Board.
(b) In addition, as supplemental compensation for the services of
Employee (the "Supplemental Compensation") during the Term, the Company shall
pay GSA the following amounts, subject to the following terms and conditions:
(i) For 2004, the Company will pay a bonus up to 50% of Base
Compensation in two pieces as follows:
(A) At a date determined by the Compensation Committee
within three months of the Effective Date, the Company will issue stock
options to the Employee with the following terms: (1) the number of
options shall equal $82,500 divided by the then current fair market value
of the Company Stock; (2) the exercise price shall be the then current
fair market value of the Company Stock; (3) the options shall be vested in
full upon the determination that the Company has substantially achieved
its 2004 business plan as reasonably determined by the Compensation
Committee of the Board or if the Employee is actively providing services
to the Company on December 31, 2004; and (4) other terms consistent with
prior option grants by the Company; and
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(B) On or prior to the date referred to in (i) (A) of
this Section 2(b), the Company will pay GSA, in cash, $82,500 if the
Company substantially achieves its 2004 business plan as reasonably
determined by the Compensation Committee of the Board, payable not later
than the later of (a) March 3l of the next following year or (b) within
ten (10) business days of the completion of the independent audit of the
Company's financial statements for the fiscal year; and
(ii) For 2005 the Company will pay GSA an additional amount
(payable not later than the later of (a) March 3l of the next following
year or (b) within ten (10) business days of the completion of the
independent audit of the Company's financial statements for the fiscal
year) equal to 50% of the Base Compensation, payable in cash, based on
criteria and in amounts to be mutually agreed upon between the Board and
GSA.
(c) At a date determined by the Compensation Committee within three
months after the Effective Date, the Company will issue stock options to the
Employee with the following terms: (1) the number of options shall be 2,700,000,
(2) the exercise price shall be the then current fair market value of the
Company Stock, (3) the options shall vest as follows: 1,350,000 on December 31,
2004; and 1,350,000 on December 31, 2005 provided that, subject to accelerated
vesting in accordance with Section 3(d) and Section 3(e), as well as in
accordance with the terms of the Plan, the Employee is actively providing
services to the Company on the relevant date.
(d) The Company shall reimburse GSA for all reasonable out-of-pocket
expenses incurred by Employee in the performance of his duties hereunder,
including without limitation, travel expenses, in accordance with the Company's
expense reimbursement policy as in effect from time to time for its direct
employees. In addition, the Company for its convenience shall provide Employee
with reasonable living quarters at an apartment leased by it within one hour's
commute of the Company's Andover, Massachusetts headquarters. If it is
determined that the market value of the total amount of rent and other related
expenses related thereto may constitute taxable income to GSA, the Company will
pay to GSA an amount equal to such taxable amount multiplied by the combined
maximum federal, Massachusetts and Connecticut state income tax rates for
individuals to compensate GSA for his tax liability, if any, for use of such
premises.
(e) Employer agrees that GSA will be entitled to grant to Employee
permission to take vacation at the rate of 20 days for each year (commencing
with the Effective Date) of this Agreement and to holidays given by the Company
to its employees generally, without reduction in Base Compensation or other
benefit. If Employee does not use such vacation, GSA will be compensated for
such unused days pursuant to the Company's policies and practices for its direct
employees.
(f) During the Term and subject to any contribution thereof or
generally required of executive employees of the Company, which contributions
GSA will make for or on behalf of Employee, Employee shall be entitled to
participate in any and all employee benefit plans from time to time in effect
for employees to the Company generally and for senior executives in particular,
but the Company shall not be required to establish any such program or plan;
provided, that the Company shall have no obligation to permit Employee's
participation if and to the extent Employee's employment by GSA precludes
participation in any such program or plan. Such participant shall be subject to
(i) the terms of the applicable plan documents, (ii) generally applicable
Company policies and (iii) the discretion of the Board or any administrative or
other committee provided for in or contemplated by such plan. The Company may
alter, modify, add to or delete its employee benefit plans at any time as it, in
its sole judgment determines to be appropriate, without recourse by GSA or
Employee.
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(g) Payment of all Base Compensation, Supplemental Compensation and
Incentive Compensation shall be made in accordance with the relevant Company
policies in effect from time to time for its direct employees, including normal
payroll practices, and shall be subject to all applicable employment and
withholding taxes.
(h) GSA understands and acknowledges that the Base Compensation,
Supplemental Compensation and Incentive Compensation and Employee's
participation in benefit programs and plans under Section 2(f) shall be in lieu
of any and all other compensation, benefits and plans payable to or account for
the benefit of GSA or Employee and represents payment in full for all services
to be provided to the Company by GSA and the Employee. Notwithstanding, the
foregoing, the Company may in its sole discretion, from time to time, grant
stock options, restricted shares or other equity-based compensation directly to
Employee.
3. TERM AND TERMINATION.
(a) This Agreement shall be effective from the Effective Date and
shall continue until December 31, 2005, (the "Term"), unless earlier terminated
in accordance with the provisions of this Section 3. The parties shall meet at
least 90 days prior to the end of the Term to determine whether they desire to
extend the Agreement.
(b) GSA shall have the right to terminate its engagement on one
day's written notice to the Company if, at any time during the Term, the Company
shall not have maintained directors and officers' liability coverage at policy
coverage levels not less than those in effect as of January 10, 2003. During the
Term, the Company shall promptly advise GSA of any lapse of or change in such
coverage. Employee shall have the contractual right to enforce any
indemnification obligations of the Company provided for in this Agreement, the
charter documents, by law or in any other instruments.
(c) The Company may terminate GSA's engagement under this Agreement
for Cause (as defined below in this Section 3(c)) at any time upon written
notice to GSA. The following shall constitute cause ("Cause") for termination:
(i) Employee's repeated failure to comply with reasonable directives of the
Board which failure has not been cured by the Employee within thirty (30) days
following receipt of written notice from the Company to GSA and Employee
specifying the nature of such failure; (ii) Employee's gross negligence or
willful misconduct in the performance of duties assigned to him by the Board
which failure Employee has not cured within thirty (30) days following receipt
of written notice from the Company to GSA and Employee specifying the nature of
such gross negligence or willful misconduct; (iii) intentional conduct by
Employee or GSA materially harmful to the Company's business and affairs
intended to result in substantial personal gain or enrichment to the Employee or
GSA at the expense of the Company, including without limitation a material
breach of Employee's obligations pursuant to Section 4 or Section 5 of this
Agreement; (iv) the determination by the Securities and Exchange Commission,
National Association of Securities Dealers, Inc., American Stock Exchange or any
other securities regulator to which the Company is subject of any misconduct by
GSA or Employee, whether related to the Company or any other person or entity
and whether arising prior to or after the Effective Date; or (v) conviction of
GSA or Employee or a plea of nolo contendre by GSA or Employee of any crime
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involving personal dishonesty or fraud or any felony. Upon termination for Cause
as provided in this Section 3(c), the Company will pay GSA any Base
Compensation, Supplemental Compensation and Incentive Compensation that has
accrued under the terms of this Agreement and that remains unpaid as of the date
of termination, but all other benefits (including without limitation vesting of
any unvested Options as of the date of such termination) (but other than the
Company's obligation to pay for the tax liability, if any, related to the
provision of housing under Section 2(d)) shall immediately terminate; provided,
however, that any Base Compensation, Supplemental Compensation or Incentive
Compensation accrued and payable to GSA prior to said termination date shall be
paid to GSA.
(d) The Company may terminate GSA's engagement under this Agreement
other than for Cause at any time upon not less than thirty (30) days' prior
written notice to GSA. In the event of such termination by the Company under
this Section 3(d), the Company will pay to GSA, in accordance with the Company's
general payroll practices for its direct employees, the Base Compensation for
the remainder of the Term plus any benefits to which Employee is entitled to be
paid under this Agreement. In addition, Employee's participation in the
Company's health insurance plan will continue for the remainder of the Term,
with the Company paying its share of the premiums as it previously has for
Employee pursuant to Section 2(f). All Options granted under Section 2(c) which
are not vested on the effective date of such termination will vest on the date
of such termination.
(e) GSA may terminate its engagement under this Agreement for Good
Reason (as defined herein) at any time upon notice by GSA to the Company setting
forth in reasonable detail the nature of such Good Reason. The following shall
constitute "Good Reason" for termination (unless with respect to items (i), (ii)
and (iii) cured in all material respects by the Company within 30 days following
written notice by GSA to the Company): (i) any material reduction in the nature
or scope of Employee's position, duties, responsibilities or authority with the
Company, (ii) the failure of the Company to remit or execute any compensation
provided for under this Agreement which in any such case GSA does not consent to
in writing, (iii) the Company's material breaches of its material obligations or
material representations under this Agreement, or (iv) the Company's failure to
obtain in writing the assumption of its obligations under this Agreement by any
successor to the Company prior to or concurrent with any Covered Transaction. In
the event of such termination by Employee for Good Reason, the Company shall pay
to GSA a lump sum equal to Base Compensation at the rate in effect on the date
of termination for the remainder of the Term plus any benefits to which Employee
is entitled under this Agreement. In addition, Employee's participation in the
Company's health insurance plan will continue for such period, with the Company
paying its share of the premiums as it previously has paid for Employee pursuant
to Section 2(f). All Options granted under Section 2(c) which are not vested on
the effective date of such termination will vest on the date of such
termination.
(f) GSA's engagement under this Agreement will terminate upon the
death of Employee, in which event the Company will pay GSA any accrued but
unpaid Base Compensation through the end of the month in which Employee's death
occurs and any obligations related to the provision of housing and any tax
liability thereon.
(g) The Company may terminate GSA's engagement under this Agreement,
upon notice to GSA, in the event that Employee becomes permanently disabled
during the Term through any illness, injury, accident or condition of either a
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physical or psychological nature and, as a result, is unable to perform
substantially all of his duties and responsibilities hereunder for ninety (90)
days during any period of six (6) consecutive months. The Board may designate
another person to act in Employee's place during any period of disability.
Designation of a person to act in place or the disabled Employee while disabled
but prior to his having become permanently disabled as aforesaid shall not be
Good Reason. Upon termination for disability as provided in this Section 3(g),
the Company shall continue to pay GSA the Base Compensation and all benefits
under the terms of this Agreement that remain through the date on which Employee
first receives payment of disability benefits under the Company's employee
benefit plans then in effect.
(h) Notwithstanding the foregoing, Employee's obligations under
Section 4 and Section 5 of this Agreement shall survive the termination of GSA's
engagement under this Agreement for any reason other than (A) by the Company
without cause or (B) by Employee with Good Reason. Upon any termination of GSA's
engagement, Employee shall be deemed to have resigned from the Board of the
Company if he is a Director as well as from all other directorships and other
offices he then holds with the Company and with any of the Company's
subsidiaries.
(i) The obligations of the Company to pay Supplemental Compensation
and Incentive Compensation that has become due and payable in accordance with
Section 2(b) or Section 2(c) of this Agreement shall survive any termination of
this Agreement or expiration or termination of the Term, other than a
termination for Cause. If the Company terminates GSA's engagement for Cause,
then, notwithstanding any other provision of this Agreement to the contrary, the
Company shall have no obligation to pay any Supplemental Compensation or
Incentive Compensation other than Supplemental Compensation and Incentive
Compensation that has theretofore become due and payable under the terms and
conditions of this Agreement.
4. INVENTIONS; TRADE SECRETS
(a) In order to induce the Company to enter into this Agreement with
GSA, Employee agrees that his relationship with the Company under this Agreement
creates a relationship of confidence and trust between him and the Company with
respect to (i) all Proprietary Information, as defined below, and (ii) the
confidential information of others with which the Company has a business
relationship and which is supplied to the Company under an obligation of
confidence. Employee agrees that during the Term and thereafter, Employee will
keep in confidence and trust all such information, and will not use or disclose
any such information without the written consent of the Company, except as may
be necessary in the ordinary course or performing his duties to the Company
while employed by the Company. "Proprietary Information" means information that
the Company possesses or has rights to which has commercial value in the
Company's business, including, without limitation, confidential information,
trade secrets, product ideas, processes, formulas, designs, software,
improvements, inventions, data and know-how, copyrightable materials, marketing
plans and strategies, sales and financial reports and forecasts and customer
lists, provided that "Proprietary Information" shall not include any such
information which is generally known to the public or in the trade unless such
knowledge results from a breach of this Agreement by Employee.
(b) In order to induce the Company to enter into this Agreement with
GSA, Employee further agrees that:
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(i) All Proprietary Information shall be the sole property of
the Company and its assigns, and the Company and its assigns shall be the
sole owner of all trade secrets, patents, copyrights, and other rights in
connection therewith. Employee hereby assigns to the Company any rights he
may have or acquire in such Proprietary Information.
(ii) All documents, records, apparatus, equipment and other
physical property, whether or not pertaining to Proprietary Information,
furnished to Employee by the Company or produced by him or others in
connection with his employment shall he and remain the sole property of
the Company. Employee shall return to the Company all such materials and
property as and when requested by the Company. Even if the Company does
not so request, Employee shall return all such materials and property upon
termination or his employment for any reason, and will not take with him
or otherwise retain possession of any such material or property or any
duplicate or reproduction thereof in any medium upon such termination.
(iii) Employee will promptly disclose to the Company, or any
persons designated by it, all improvements, inventions, works of
authorship, formulas, ideas, processes, techniques, know-how and data,
whether or not patentable (collectively, "Inventions"), made or conceived,
reduced to practice or learned by him, either alone or jointly with
others, in the course of his employment or which is otherwise subject to
Section 4(b)(iv).
(iv) All Inventions which Employee conceives, develops or has
developed (in whole or in part, either alone or jointly with others)
during the Term which relate at the time of conception or reduction to
practice thereof to the actual or demonstrably anticipated business of the
Company or to its actual or demonstrably anticipated research and
development, or which result from any work performed by Employee for the
Company or which are developed on Company time or through the use of the
Company's Proprietary Information or other resources, shall be the sole
property of the Company and its assigns (and to the fullest extent
permitted by law shall be deemed works made for hire), and the Company and
its assigns shall be the sole owner of all patents, copyrights and other
rights in connection therewith. Employee hereby assigns to the Company any
rights he may have or acquire in such Inventions.
(v) With respect to Inventions described in subsection (iv)
above, Employee will assist the Company in every proper way (but at the
Company's expense) to obtain and from time to time enforce patents,
copyrights or other rights on said Inventions in any and all countries,
and will execute all documents reasonably necessary or appropriate for
this purpose. Employee agrees that this obligation shall survive the
termination of his employment, but the Company shall compensate him at a
reasonable rate after such Termination for time actually spent by him or
the Company's request on such assistance. In the event that the Company is
unable after using all its reasonable efforts to secure within three (3)
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business days of the Company's request therefore the signature of Employee
to any document which the Company determines is reasonably necessary or
appropriate for any of the foregoing purposes, (including renewals,
extensions, continuations, divisions or continuations in part), Employee
hereby irrevocably designates und appoints the Company and its duly
authorized officers and agents, as his agents and attorneys-in-fact to act
for and on his behalf and instead of him, but only for the purpose of
executing and filing any such document and doing all other lawfully
permitted acts to accomplish the foregoing purposes with the same legal
force and effect as if executed by Employee. The foregoing appointment of
the Company as Employee's attorney-in-fact is intended to be and shall be
deemed as coupled with an interest
(c) Employee represents that his execution of this Agreement, his
employment with the Company and his performance of his duties for the Company
hereunder will not violate any obligations he may have to any former employer or
any other third party, including any obligations to keep confidential any
proprietary or confidential information. Employee represents that he has not
entered into, and will not enter into, any agreement which conflicts with or
would, if performed by Employee, cause him to breach any of his obligations
under this Agreement.
(d) In the course of performing his duties to the Company, Employee
agrees that he will not utilize any proprietary or confidential information of
any former employer or other third party in any manner that would violate any
obligation to which Employee is subject.
5. NON-COMPETITION AND NON-SOLICITATION.
(a) In order to induce the Company to enter into this Agreement with
GSA, during the Term, and for a period of 12 months after the termination of the
Term for any reason (other than termination without Cause by the Company or with
Good Reason by the Employee) of GSA's engagement with the Company hereunder,
Employee agrees and covenants that he shall not, directly or indirectly, own,
manage, operate, join, control, participate in, invest in, advise, assist, act
as a consultant for or otherwise be connected with, in any manner, whether as an
officer, director, shareholder, employee, partner, venturer, investor or
otherwise, any competitor, which shall mean any person or business entity
engaged in or about to become engaged in the production, licensing, sale or
marketing of any product or service or planned business involving endogenous
laser treatment, photodynamic therapy or any other product or service of or
under development by the Company at the time of termination of the Employee's
employment. The foregoing shall not be denied to prohibit Employee from
investing Employee's personal funds in securities of an issuer that is a
competitor of the Company if the securities of such issuer arc listed for
trading on a national securities exchange or are traded in the over-the-counter
market and Employee's holdings therein represent less than 5% of the total
number of outstanding shares or principal amount of the securities of such
issuer.
(b) In order to induce the Company to enter into this Agreement with
GSA, during the Term, and for a period of 12 months after the termination of the
Term for any reason of GSA's engagement with the Company hereunder, Employee
agrees and covenants that he will not directly or indirectly, either (or himself
or on behalf of any other person or enterprise, without the express written
consent of the Company, (a) solicit or attempt to solicit or entice away or
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interfere with the Company's contractual relationships any of the Company's
customers, business partners, suppliers or shareholders in existence at the time
of termination of such employment, or (b) recruit, solicit or hire, seek or
attempt to recruit, solicit or hire or assist in recruiting, soliciting or
hiring any employee or agent of the Company, or except in connection with the
performance of his duties hereunder, take action that results in the termination
of employment or other arrangements between the Company and any of its employees
or agents or otherwise interferes with such employment or arrangements.
(c) GSA and Employee acknowledge and agree that the provisions of
Section 4 and this Section 5 are reasonable and necessary for the protection of
the Company and its intellectual property and business and interests.
6. EQUITABLE RELIEF.
GSA and Employee recognize and agree that the Company's remedy at law for
any breach of the provisions of Section 4 or Section 5 hereof would be
inadequate, and Employee 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 in any court having
proper jurisdiction. For purposes of the foregoing, Employee agrees to submit to
the jurisdiction of the Federal and state courts located in the counties of
Suffolk and Rockingham. Commonwealth of Massachusetts and in the county of New
York, State of New York, and any other court having proper personal jurisdiction
over Employee, GSA and Employee hereby irrevocably waives any right to seek to
have any such proceedings removed to any other court, whether due to hardship,
inconvenience or otherwise.
7. REMEDIES.
Subject to Section 6, any claim or controversy arising out of or relating
to this Agreement, including without limitation any claim by the Company that
GSA or Employee has violated any one or more of the restrictions set forth in
Section 4 or Section 5, shall be settled by arbitration before a single
arbitrator (who shall be a lawyer) in Boston, Massachusetts chosen in accordance
with the Commercial Arbitration Rules of the American Arbitration Association.
If the arbitrator finds that a violation of the forgoing restrictions exists or
is threatened, he shall prescribe appropriate relief which may include an award
that Employee desist from such violation where such an order could issue, in the
circumstances, under the equity powers of a court. Judgment upon the award
rendered by the arbitrator may be entered in any cour1 of competent
jurisdiction.
8. MISCELLANEOUS.
(a) The failure of any of the parties to this Agreement to require
the performance of a term or obligation or to exercise any right under this
Agreement or the waiver by any of the parties to this Agreement of any breach
hereunder shall not prevent subsequent enforcement of such term or obligation or
exercise of such right or the enforcement at any time of any other right
hereunder or be deemed a waiver or any subsequent breach of the provision so
breached, or of any other breach, hereunder.
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(b) This Agreement shall be deemed entered into in New York, New
York, and shall be governed by and construed under the laws of the State of New
York, without giving effect to the conflicts of law provisions thereof.
(c) This Agreement shall not be amended, modified or discharged in
whole or in part except by an agreement in writing signed by the parties hereto,
provided, that if any one or more of the provisions or parts of a provision
contained in this Agreement shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision or part of a provision of this Agreement,
but this Agreement shall be construed as if such invalid or illegal or
unenforceable provision or part of a provision had been limited or modified
(consistent with its general intent) to the extent necessary so that it shall be
valid, legal and enforceable, or if it shall not be possible to so limit or
modify such invalid or illegal or unenforceable provision or part of a
provision, this Agreement shall be construed as if such invalid or illegal or
unenforceable provision or part of a provision had never been contained herein.
(d) GSA shall not assign or transfer in whole or in part his rights,
obligations or interests arising from this Agreement without the Company's prior
written consent. Any such attempt shall be deemed void and may be construed as a
material breach of this Agreement.
(e) The termination of this Agreement for any reason shall not
terminate the obligations or liabilities of the parties under the terms and
conditions of this Agreement regarding confidentiality, non-competition,
non-solicitation, payment, warranties, liabilities, proprietary rights and all
others that by their sense and context are intended to survive the execution,
delivery, performance, termination and expiration of this Agreement, Such
obligations and liabilities shall survive and continue in effect after such
termination.
(f) This Agreement constitutes the entire agreement of the parties
with respect to the subject matter hereof and replaces and extinguishes any and
all prior or contemporaneous agreements, written or oral, between Employee and
the Company, including without limitation the agreement dated January 10, 2003.
(Signature page follows)
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IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first set forth above.
DIOMED HOLDINGS, INC.
By: /s/ XXXXXXXX X. XXXXXXX
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Name: Xxxxxxxx X. Xxxxxxx
Title: Chairman of the Board
GLOBAL STRATEGY ASSOCIATES
By: /s/ XXXXX X. XXXXX, XX.
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Name: Xxxxx X. Xxxxx, Xx.
Title: President
EMPLOYEE
/s/ XXXXX X. XXXXX, XX.
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Xxxxx X. Xxxxx, Xx.
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