Exhibit 10.01
FIRST AMENDED EXECUTIVE EMPLOYMENT AGREEMENT
This First Amended Executive Employment Agreement (hereafter referred to as
this "Agreement") is made by and between Point Therapeutics, Inc, a
Massachusetts corporation, (the "Company") and Xxxxxx X. Xxxxxxx, Xx. (the
"Executive") as of the 31st day of October, 2001 (the "Effective Date"),
amending in part and restating that certain Employment, Confidentiality and
Non-Competition Agreement between the Executive and the Company (under its
former name, Immune Therapeutics, Inc.) dated as of the 22nd day of January,
1997 (the "Original Agreement").
WHEREAS, the operations of the Company are a complex matter requiring
direction and leadership in a variety of arenas, including financial, strategic
planning, regulatory, community relations and others;
WHEREAS, the Executive is possessed of certain experience and expertise
that qualify him to provide the direction and leadership required by the
Company; and
WHEREAS, subject to the terms and conditions hereinafter set forth, the
Company therefore wishes to continue to employ the Executive as its Chairman,
President and Chief Executive Officer and the Executive wishes to continue in
the service of the Company in that position;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
promises, terms, provisions and conditions set forth in this Agreement, the
parties hereby agree:
1. Employment.
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Subject to the terms and conditions set forth in this Agreement, the Company
hereby offers to continue to employ the Executive and the Executive hereby
agrees to continue in the service of the Company.
2. Term.
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Subject to earlier termination as hereafter provided, the Executive's employment
hereunder shall be for a term of three (3) years, commencing on the Effective
Date, and shall automatically be extended thereafter for successive terms of one
year each. The term of this Agreement, as from time to time extended, is
hereafter referred to as "the term of this Agreement" or "the term hereof."
3. Capacity and Performance.
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(a) During the term hereof, the Executive shall serve the Company as
its Chairman, President and Chief Executive Officer. In addition, and without
further compensation, the Executive shall serve as a director and/or officer of
one or more of the Company's Affiliates if so elected or appointed from time to
time.
(b) During the term hereof, the Executive shall be employed by the
Company on a full-time basis and shall perform the duties and responsibilities
of his positions and such
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other duties and responsibilities on behalf of the Company and its Affiliates,
reasonably consistent with his positions, as may be designated from time to time
by the Board of Directors of the Company (the "Board").
(c) During the term hereof, the Executive shall devote his full
business time and his best efforts, business judgment, skill and knowledge
exclusively to the advancement of the business and interests of the Company and
its Affiliates and to the discharge of his duties and responsibilities
hereunder. It is agreed, however, that the provisions of this Section 3(c) shall
not be violated (i) by the Executive's holding of directorships or related
positions in charitable, educational or not-for-profit organizations which do
not involve continuous or substantial time commitments or (ii) by the
Executive's holding of directorships with for-profit organizations with the
approval of the Board or (iii) by passive personal investment activities,
provided that such positions and activities are not in conflict, and do not
otherwise interfere, with the Executive's duties and responsibilities to the
Company and its Affiliates.
(d) The Company agrees to propose to the shareholders of the Company
at each appropriate annual meeting of such shareholders during the term hereof
the election or reelection of the Executive as a member of the Board.
4. Compensation and Benefits. As compensation for all services performed by
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the Executive under and during the term hereof:
(a) Base Salary. During the term hereof, the Company shall pay the
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Executive a base salary at the rate of Three Hundred Thousand Dollars ($300,000)
per year, payable in accordance with the payroll practices of the Company for
its executives. The Board shall review the Executive's base salary annually and
the base salary shall be subject to increase from time to time by the Board in
its sole discretion. The Executive's base salary, as from time to time
increased, is hereafter referred to as the "Base Salary."
(b) Incentive and Bonus Compensation. If an incentive or bonus
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compensation program is made available to executives of the Company generally
and the Executive is not then covered by any incentive or bonus compensation
program, the Executive shall be entitled during the term hereof to participate
in such program in accordance with the terms thereof, as such terms may be
modified or amended by the Company from time to time; provided that the maximum
bonus opportunity for the Executive under any such program shall be not less
than thirty percent (30%) of the Base Salary; and provided further, however,
that nothing contained herein shall obligate the Company to adopt or continue
such an incentive or bonus compensation program. In the absence of such a
program, however, the Executive shall be considered annually by the Board for a
bonus of up to thirty percent (30%) of the Base Salary, based on the Board's
assessment, in its discretion, of the Executive's performance and that of the
Company against appropriate and reasonably obtainable goals established annually
by the Compensation Committee of the Board in consultation with the Executive;
which bonus, if any, shall be payable not later than the end of the first
quarter of the fiscal year following that for which the bonus was earned. Any
bonus or incentive compensation paid to the Executive shall be in addition to
the Base Salary.
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(c) Stock Options. The Executive shall be eligible to be considered
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annually, during the first quarter of each fiscal year during the term hereof,
for a stock option award, based on the Executive's performance and that of the
Company during the immediately preceding fiscal year, with the number of
options, if any, to be granted to be determined by the Board in its discretion.
Any such options granted shall be subject to the applicable stock option grants,
certificates and plans, shareholder agreements and any other restrictions or
provisions generally applicable to shares purchased by Company employees, as
these may be amended from time to time by the Company.
(d) Vacations. During the term hereof, the Executive shall be entitled
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to four (4) weeks of vacation per annum, to be taken at such times and intervals
as shall be determined by the Executive, subject to the reasonable business
needs of the Company. Vacation shall otherwise to subject to the policies of the
Company, as in effect from time to time.
(e) Other Benefits. During the term hereof, the Executive shall be
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entitled to participate in any and all employee benefit plans from time to time
in effect for employees of the Company generally, except to the extent such
plans are in a category of benefit otherwise provided to the Executive (e.g.,
severance pay). Such participation shall be subject to the terms of the
applicable plan documents and generally applicable Company policies.
(f) Business Expenses. The Company shall pay or reimburse the
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Executive for all reasonable business expenses incurred or paid by the Executive
in the performance of his duties and responsibilities hereunder, subject to such
reasonable substantiation and documentation as may be specified by the Company
from time to time.
5. Termination of Employment and Severance Benefits. Notwithstanding the
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provisions of Section 2 hereof, the term of this Agreement, and the Executive's
employment hereunder, shall terminate under the following circumstances:
(a) Death. In the event of the Executive's death during the term
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hereof, the Executive's employment hereunder shall immediately and automatically
terminate. In that event, the Company shall pay to the Executive's designated
beneficiary or, if no beneficiary has been designated by the Executive, to his
estate, (i) the Base Salary earned but not paid through the date of termination,
(ii) pay for any vacation time earned but not used through the date of
termination, (iii) any bonus compensation awarded but unpaid on the date of
termination and (iv) any business expenses incurred by the Executive but
un-reimbursed on the date of termination, provided that such expenses and
required substantiation and documentation are submitted within thirty (30) days
of termination and that such expenses are reimbursable under Company policy (all
of the foregoing, "Final Compensation"). The Company shall have no further
obligation to the Executive hereunder.
(b) Disability.
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(i) The Company may terminate the Executive's employment
hereunder, upon notice to the Executive, in the event that the Executive
becomes disabled during his employment hereunder through any illness,
injury, accident or condition of
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either a physical or psychological nature and, as a result, is unable to
perform substantially all of his duties and responsibilities hereunder for
one hundred and twenty (120) business days during any period of three
hundred and sixty-five (365) consecutive calendar days. In the event of
such termination, the Company shall have no further obligation to the
Executive, other than for payment of Final Compensation.
(ii) The Board may designate another employee to act in the
Executive's place during any period of the Executive's disability.
Notwithstanding any such designation, the Executive shall continue to
receive the Base Salary in accordance with Section 4(a) hereof, and
benefits in accordance with Section 4(e) to the extent permitted by the
then-current terms of the applicable benefit plans, until the Executive
becomes eligible for disability income benefits under the Company's
disability income plan or until the termination of his employment,
whichever shall first occur.
(iii) While receiving disability income payments under the
Company's disability income plan, the Executive shall not be entitled to
receive any Base Salary under Section 4(a) hereof, but shall continue to
participate in Company benefit plans in accordance with Section 4(e) and
the terms of such plans until the termination of his employment.
(iv) If any question shall arise as to whether during any period
the Executive is disabled through any illness, injury, accident or
condition of either a physical or psychological nature so as to be unable
to perform substantially all of his duties and responsibilities hereunder,
the Executive may, and at the request of the Company shall, submit to a
medical examination by a physician selected by mutual agreement of the
Company and the Executive (or his duly appointed guardian, if any) to
determine whether the Executive is so disabled and such determination shall
for the purposes of this Agreement be conclusive of the issue. If such
question shall arise and the Executive shall fail to reasonably cooperate
in the selection of a physician or to submit to such medical examination,
the Company's determination of the issue shall be binding on the Executive.
(c) By the Company for Cause. The Company may terminate the
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Executive's employment hereunder for Cause at any time upon notice to the
Executive; provided that, prior to such termination, the Board shall provide the
Executive an initial notice setting forth in reasonable detail the nature of the
Cause alleged and a reasonable opportunity for the Executive (and, at the
Executive's option, his counsel) to be heard by the Board prior to its final
determination as to whether or not Cause exists. The Board may elect to place
the Executive on unpaid administrative leave at the time of such initial notice
and pending the final determination by the Board; provided, however, that, if
Cause is not found to exist, the Executive shall be paid the Base Salary for the
period of administrative leave. Only the following, as determined by the Board
in its reasonable judgment, shall constitute Cause for termination:
(i) The Executive's willful failure to perform, or gross
negligence in the performance of, his duties and responsibilities to the
Company or any of its Affiliates;
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which failure or neglect remains uncured, continues or recurs after ten
(10) business days' notice from the Board setting forth in reasonable
detail the nature of such failure or neglect;
(ii) Commission by the Executive of a felony or other crime
involving moral turpitude;
(iii) Fraud, embezzlement or other material dishonesty by the
Executive with respect to the Company or any of its Affiliates; or
(iv) Material breach by the Executive of any of his obligations
under Section 7, 8 or 9 hereof.
Upon termination of the Executive's employment for Cause in accordance herewith,
the Company shall have no further obligation to the Executive, other than for
Final Compensation.
(d) By the Company Other than for Cause. The Company may terminate the
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Executive's employment hereunder other than for Cause at any time upon notice to
the Executive. In the event of such termination, in addition to Final
Compensation, the Company shall continue to pay the Executive the Base Salary
for the period of twelve (12) months following the date of termination and, in
lieu of continuation of the Executive's participation, or that of any of his
eligible dependents, in any of the Company's group benefit plans following
termination of his employment, shall provide the Executive a single lump sum
payment in the amount of Twenty-Five Thousand Dollars ($25,000). Base Salary to
which the Executive is entitled hereunder shall be payable in accordance with
the normal payroll practices of the Company and shall begin at the Company's
next regular payroll period following the date of termination. The lump sum
payment to which the Executive is entitled hereunder shall be paid at the
Company's next regular payday following the date of termination.
(e) By the Executive for Good Reason. The Executive may terminate his
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employment hereunder for Good Reason, upon notice to the Company setting forth
in reasonable detail the nature of such Good Reason. The following shall
constitute Good Reason for termination by the Executive:
(i) Failure of the Company to continue the Executive in the
positions of Chairman, President and Chief Executive Officer;
(ii) Material diminution or other material adverse change in the
nature or scope of the Executive's responsibilities, duties or authority
which remains uncured, continues or recurs after ten (10) business days'
notice from the Executive setting forth in reasonable detail the nature of
such diminution or change; or
(iii) Material failure of the Company to provide the Executive
the Base Salary and other compensation and benefits in accordance with the
terms of Section 4 hereof, other than any inadvertent failure which is
cured within ten (10) business days
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following notice from the Executive setting forth in reasonable detail the
nature of such failure.
In the event of termination for Good Reason in accordance with this Section
5(e), in addition to Final Compensation, the Company shall continue to pay the
Executive the Base Salary for the period of twelve (12) months following the
date of termination and, in lieu of continuation of the Executive's
participation, or that of any of his eligible dependents, in any of the
Company's group benefit plans following termination of his employment, shall
provide the Executive a single lump sum payment in the amount of Twenty-Five
Thousand Dollars ($25,000). Base Salary to which the Executive is entitled
hereunder shall be payable in accordance with the normal payroll practices of
the Company and will begin at the Company's next regular payroll period
following the date of termination. The lump sum payment to which the Executive
is entitled hereunder shall be paid at the Company's next regular payday
following the date of termination.
(f) By the Executive Other than for Good Reason. The Executive may
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terminate his employment hereunder at any time upon sixty (60) days' notice to
the Company. In the event of termination by the Executive pursuant to this
Section 5(f), the Board may elect to waive the period of notice, or any portion
thereof, and, if the Board so elects, the Company shall pay the Executive the
Base Salary for the notice period (or for any remaining portion of the period).
(g) Upon a Change of Control.
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(i) If a Change of Control occurs and, within two years following
such Change of Control, the Company terminates the Executive's employment
other than for Cause, or the Executive terminates his employment for Good
Reason, then, in lieu of any payments to the Executive under Section 5(c)
or 5(d) hereof, the Company (A) shall pay the Executive, within ten (10)
business days following the date his employment terminates, a lump sum
payment equal to two times the sum of the Base Salary at the rate in effect
on the date of termination and the amount of any incentive and bonus
compensation paid to him pursuant to Section 4(b) hereof during the
preceding twelve (12) months and (B) in lieu of continuation of the
Executive's participation, or that of any of his eligible dependents, in
any of the Company's group benefit plans following termination of his
employment, shall provide the Executive a single lump sum payment in the
amount of Fifty Thousand Dollars ($50,000).
(ii) Notwithstanding the foregoing, the payments to which the
Executive would be entitled under this Agreement as a result of a Change of
Control shall be reduced to the maximum amount for which the Company will
not be limited in its deduction pursuant to Section 280G of the Internal
Revenue Code of 1986, as amended, or any successor provision. Any such
reduction shall be applied to the amounts due to the Executive hereunder as
the Executive may reasonably determine.
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(iii) "Change of Control" means the occurrence after the
Effective Date of one of the following: (A) any "Person," as such term is
used in Section 13(d) and 14(d) of the Securities Exchange Act of 1934 as
amended (the "Exchange Act"), other than the Company or one of its
Affiliates or any trustee or other fiduciary holding securities under an
employee benefit plan of the Company or one of its Affiliates, becomes a
beneficial owner (within the meaning of Rule 13d-3, as amended, as
promulgated under the Exchange Act), directly or indirectly, in one or a
series of transactions, of securities representing more than fifty percent
(50%) of the combined voting power of the Company's then outstanding
securities; (B) during any period of two consecutive years (not including
any period prior to the Effective Date), individuals who at the beginning
of such period constitute the Board, and any new director (other than a
director designated by a Person, as hereinabove defined, who has entered
into an agreement with the Company to effect a transaction described in
clause (A), (C) or (D) of this Section 5.g.(iii)) whose election by the
Board or nomination for election by the Company's stockholders was approved
by a vote of at least two-thirds of the directors then still in office who
either were directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any reason to
constitute at least a majority thereof; or (C) there occurs a merger or
consolidation of the Company with any other corporation, other than a
merger or consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity) more than fifty percent (50%) of the
combined voting power of the voting securities of the Company or such
surviving entity outstanding immediately after such merger or
consolidation; or (D) the stockholders of the Company approve a plan of a
complete liquidation of the Company; or (E) there occurs a closing of a
sale or other disposition by the Company of all or substantially all of the
assets of the Company other than to one or more of the Company's Affiliates
or any trustee or other fiduciary holding securities under an employee
benefit plan of the Company or any of its Affiliates; notwithstanding the
foregoing, however, the pending merger between the Company and a subsidiary
of HMSR Inc., if consummated, shall not constitute a Change of Control.
(iv) The Company shall promptly reimburse the Executive for the
amount of all reasonable attorneys' fees and expenses incurred by the
Executive in seeking to obtain or enforce any right or benefit provided the
Executive under this Section 5(g).
6. Effect of Termination. The provisions of this Section 6 shall apply to
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any termination of this Agreement, pursuant to Section 5 or otherwise.
(a) Payment by the Company of any Final Compensation, Base Salary,
incentive or bonus compensation and any lump sum payment in lieu of benefits
that is due the Executive in each case in accordance with the applicable
termination provision of Section 5 shall constitute the entire obligation of the
Company to the Executive.
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(b) Except for any right that the Executive may have to continue his
coverage and that of his eligible dependents at his cost under the Company's
group health and dental plans through the federal law known as "COBRA" or any
successor law, benefits shall terminate pursuant to the terms of the applicable
benefit plans based on the date of termination of the Executive's employment
without regard to any continuation of Base Salary or other payment to the
Executive following such date of termination.
(c) Provisions of this Agreement shall survive any termination if so
provided herein or if necessary or desirable to accomplish the purposes of other
surviving provisions, including without limitation the obligations of the
Executive under Sections 7, 8 and 9 hereof. The obligation of the Company to
make payments to or on behalf of the Executive under Section 5(d), 5(e ) or 5(g)
hereof is expressly conditioned upon the Executive's continued full performance
of his obligations under Sections 7, 8 and 9 hereof. The Executive recognizes
that, except as expressly provided in Section 5(d), 5(e) or 5(g), no
compensation is earned after termination of employment.
7. Confidential Information.
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(a) The Executive acknowledges that the Company and its Affiliates
continually develop Confidential Information; that the Executive may develop
Confidential Information for the Company or its Affiliates; and that the
Executive may learn of Confidential Information during the course of employment.
The Executive shall comply with the policies and procedures of the Company and
its Affiliates for protecting Confidential Information and shall not disclose to
any Person or use, other than as required by applicable law or for the proper
performance of his duties and responsibilities to the Company and its
Affiliates, any Confidential Information obtained by the Executive incident to
his employment or other associations with the Company or any of its Affiliates.
The Executive understands that this restriction shall continue to apply after
his employment terminates, regardless of the reason for such termination.
(b) All documents, records, tapes and other media of every kind and
description relating to the business, present or otherwise, of the Company or
its Affiliates and any copies, in whole or in part, thereof (the "Documents"),
whether or not prepared by the Executive, shall be the sole and exclusive
property of the Company and its Affiliates. The Executive shall safeguard all
Documents and shall surrender to the Company at the time his employment
terminates, or at such earlier time or times as the Board or its designee may
specify, all Documents then in the Executive's possession or control.
8. Assignment of Rights to Intellectual Property.
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(a) The Executive agrees to maintain accurate and complete
contemporaneous records of, and to immediately and fully disclose and deliver to
the Company, all Intellectual Property, as hereafter defined.
(b) The Executive hereby represents and warrants that all of the
Products resulting from his work for the Company shall be original and shall not
infringe the rights of any
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third party, including without limitation intellectual property rights, such as
rights pertaining to patents, trademarks, copyrights and trade secrets.
(c) The Executive hereby assigns and agrees in the future to assign to
the Company (or as otherwise directed by the Company) his full right, title and
interest in and to all Intellectual Property. The Executive agrees to provide,
at the Company's request, all further cooperation which the Company determines
is necessary or desirable to accomplish the complete transfer of the
Intellectual Property and all associated rights to the Company, its successors,
assigns and nominees, and to ensure the Company the full enjoyment of the
Intellectual Property, including without limitation executing further
applications both domestic and foreign, specifications, oaths, assignments,
consents, releases, government communications and other commercially reasonable
documentation, responding to corporate diligence inquiries, and providing good
faith testimony by affidavit, declaration, deposition, in-person or other proper
means, in support of any effort by the Company to establish, perfect, defend, or
otherwise enjoy, in this or any foreign country, its rights acquired pursuant to
this Agreement through prosecution of governmental filings, regulatory
proceedings, litigation or other means.
(d) To the extent that the Executive cannot assign and transfer any of
his full right, title, and interest in the Intellectual Property then the
Executive hereby grants the Company and its Affiliates an irrevocable,
worldwide, fully paid-up, royalty-free, exclusive license, with the right to
sublicense through multiple tiers, to make, use, sell, improve, reproduce,
distribute, perform, display, transmit, manipulate in any manner, create
derivative works based upon, and otherwise exploit or utilize in any manner the
Intellectual Property. The Executive will not charge the Company for time spent
in complying with any of his obligations under this Section 8. All copyrightable
works that the Executive creates shall be considered "work made for hire."
9. Restricted Activities. The Executive agrees that some restrictions on
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his activities during and after his employment are necessary to protect the
goodwill, Confidential Information and other legitimate interests of the Company
and its Affiliates:
(a) While the Executive is employed by the Company and for twenty-four
(24) months after his employment terminates (the "Non-Competition Period"), the
Executive shall not, directly or indirectly, whether as owner, partner,
investor, consultant, agent, employee, co-venturer or otherwise, compete with
the Business of the Company and its Affiliates anywhere in the world or
undertake any planning for any business competitive with the Business of the
Company and its Affiliates. For the purposes of this Section 9, the "Business of
the Company and its Affiliates" shall include all Products, including without
limitation (i) protease inhibitors, (ii) chemically synthesized homo and hetero
bivalent or multivalent conjugates that are designed to induce the association
or aggregation of T-cell surface receptors, (iii) agents that bind to DPP IV and
(iv) agents that bind to FAP, and the Executive's undertaking shall encompass
all items, products and services that may be used in substitution for the
Products.
(b) The Executive further agrees that while he is employed by the
Company and during the Non-Competition Period, the Executive will not hire or
attempt to hire any employee of the Company or any of its Affiliates, assist in
such hiring by any Person, encourage
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any such employee to terminate his or her relationship with the Company or any
of its Affiliates, or solicit or encourage any independent contractor doing
business with the Company or any of its Affiliates to terminate or diminish its
relationship with them.
10. Enforcement of Covenants. The Executive acknowledges that he has
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carefully read and considered all the terms and conditions of this Agreement,
including without limitation the restraints imposed upon him pursuant to
Sections 7, 8 and 9 hereof. The Executive agrees that said restraints are
necessary for the reasonable and proper protection of the Company and its
Affiliates and that each and every one of the restraints is reasonable in
respect to subject matter, length of time and geographic area. The Executive
further acknowledges that, were he to breach any of the covenants contained in
Sections 7, 8 or 9 hereof, the damage to the Company and its Affiliates would be
irreparable. The Executive therefore agrees that the Company and its Affiliates,
in addition to any other remedies available to them, shall be entitled to
preliminary and permanent injunctive relief against any breach or threatened
breach by the Executive of any of said covenants. The parties further agree
that, in the event that any provision of Section 7, 8 or 9 hereof shall be
determined by any court of competent jurisdiction to be unenforceable by reason
of its being extended over too great a time, too large a geographic area or too
great a range of activities, such provision shall be deemed to be modified to
permit its enforcement to the maximum extent permitted by law.
11. Conflicting Agreements. The Executive hereby represents and warrants
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that the execution of this Agreement and the performance of his obligations
hereunder will not breach or be in conflict with any other agreement to which
the Executive is a party or is bound and that the Executive is not now subject
to any covenants against competition or similar covenants or any court order or
other legal obligation that would affect the performance of his obligations
hereunder. The Executive will not disclose to or use on behalf of the Company
any proprietary information of a third party without such party's consent.
12. Definitions. Words or phrases which are initially capitalized or are
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within quotation marks shall have the meanings provided in this Section 12 and
as provided elsewhere in this Agreement. For purposes of this Agreement, the
following definitions apply:
(a) "Affiliates" means all persons and entities directly or indirectly
controlling, controlled by or under common control with the Company, where
control may be by either management authority or equity interest.
(b) "Confidential Information" means any and all information of the
Company and its Affiliates that is not generally known by others with whom any
of them compete or do business, or with whom any of them plan to compete or do
business and any and all information, publicly known in whole or in part or not,
which, if disclosed by the Company or any of its Affiliates would assist in
competition against them. Confidential Information includes without limitation
such information relating to (i) the development, research, testing,
manufacturing, marketing and financial activities of the Company and its
Affiliates, (ii) the Products, (iii) the costs, sources of supply, financial
performance and strategic plans of the Company and its Affiliates, (iv) the
identity and special needs of the customers of the Company and its Affiliates
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and (v) the people and organizations with whom the Company and its Affiliates
have business relationships and the nature and substance of those relationships.
Confidential Information also includes any information that the Company or any
of its Affiliates have received, or may receive hereafter, belonging to
customers or others with any understanding, express or implied, that the
information would not be disclosed.
(c) "Intellectual Property" means inventions, discoveries,
developments, methods, processes, compositions, works, concepts and ideas
(whether or not patentable or copyrightable or constituting trade secrets) (i)
that are conceived, made, created, developed or reduced to practice by the
Executive (whether alone or with others, whether or not during normal business
hours or on or off Company premises) at any time during the Executive's
employment or other associations with the Company, whether before or after the
Effective Date, that relate to either the Products or any prospective activity
of the Company or any of its Affiliates or that make use of Confidential
Information or any of the equipment or facilities of the Company or any of its
Affiliates or (ii) that, although conceived, made, created, developed or reduced
to practice by the Executive prior to the Executive's employment or other
associations with the Company, have been incorporated by the Executive into any
of the Products.
(d) Except as otherwise provided for purposes of Section 5(g),
"Person" means an individual, a corporation, a limited liability company, an
association, a partnership, an estate, a trust and any other entity or
organization, other than the Company or any of its Affiliates.
(e) "Products" mean all products planned, researched, developed,
tested, manufactured, sold, licensed, leased or otherwise distributed or put
into use by the Company or any of its Affiliates, together with all services
provided or planned by the Company or any of its Affiliates, during the
Executive's employment.
13. Withholding. All payments made by the Company under this Agreement
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shall be reduced by any tax or other amounts required to be withheld by the
Company under applicable law.
14. Assignment. Neither the Company nor the Executive may make any
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assignment of this Agreement or any interest herein, by operation of law or
otherwise, without the prior written consent of the other; provided, however,
that the Company may assign its rights and obligations under this Agreement
without the consent in the event that the Executive is transferred to a position
with any of the Affiliates or in the event that the Company shall hereafter
affect a reorganization, consolidate with, or merge into, any other Person or
transfer all or substantially all of its properties or assets to any other
Person. This Agreement shall inure to the benefit of and be binding upon the
Company and the Executive, their respective successors, executors,
administrators, heirs and permitted assigns.
15. Severability. If any portion or provision of this Agreement shall to
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any extent be declared illegal or unenforceable by a court of competent
jurisdiction, then the remainder of this Agreement, or the application of such
portion or provision in circumstances other than those as
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to which it is so declared illegal or unenforceable, shall not be affected
thereby, and each portion and provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
16. Waiver. No waiver of any provision hereof shall be effective unless
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made in writing and signed by the waiving party. The failure of either party to
require the performance of any term or obligation of this Agreement, or the
waiver by either party of any breach of this Agreement, shall not prevent any
subsequent enforcement of such term or obligation or be deemed a waiver of any
subsequent breach.
17. Notices. Any and all notices, requests, demands and other
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communications provided for by this Agreement shall be in writing and shall be
effective when delivered in person or deposited in the United States mail,
postage prepaid, registered or certified, and addressed to the Executive at his
last known address on the books of the Company or, in the case of the Company,
at its principal place of business, attention of the Chairman of the Board, or
to such other address as either party may specify by notice to the other
actually received.
18. Entire Agreement. This Agreement constitutes the entire agreement
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between the parties and supersedes all prior communications, agreements and
understandings, written or oral, with respect to the terms and conditions of the
Executive's employment; provided, however, that this Agreement shall not
terminate or supersede any additional obligations of the Executive pursuant to
the Original Agreement or any other agreement with respect to confidential
information or to the assignment of rights to intellectual property or to any
non-competition or other restrictions on the activities of the Employee.
19. Amendment. This Agreement may be amended or modified only by a written
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instrument signed by the Executive and by a expressly authorized representative
of the Company.
20. Headings. The headings and captions in this Agreement are for
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convenience only and in no way define or describe the scope or content of any
provision of this Agreement.
21. Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be an original and all of which together shall
constitute one and the same instrument.
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22. Governing Law. This is a Massachusetts contract and shall be construed
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and enforced under and be governed in all respects by the laws of the
Commonwealth of Massachusetts, without regard to the conflict of laws principles
thereof.
IN WITNESS WHEREOF, this Agreement has been executed as a sealed instrument
by the Company, by its duly authorized representative, and by the Executive, as
of the date first above written.
THE EXECUTIVE: THE COMPANY
/s/ Xxxxxx X. Xxxxxxx, Xx. By: /s/ Xxxxxx X. Xxxxx
-------------------------- -----------------------------
Title: Director
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