Exhibit 10.1
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EXECUTIVE EMPLOYEE AGREEMENT
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To: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Date: December 17, 2004
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▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
The undersigned, MacroChem Corporation, a Delaware corporation (the
"Company"), hereby agrees with you as follows:
1. POSITION AND RESPONSIBILITIES.
1.1 You shall continue to serve as Vice President and General Counsel of
the Company (or in such other executive capacity as shall be designated by the
Company) and shall perform the duties customarily associated with such capacity
from time to time and at such place or places as the Company shall designate are
appropriate and necessary in connection with such employment.
1.2 You will, to the best of your ability, devote your full time and
best efforts to the performance of your duties hereunder and the business and
affairs of the Company. You agree to perform such executive duties as may be
assigned to you by the Company from time to time.
1.3 You will duly, punctually and faithfully perform and observe any and
all reasonable rules and regulations which the Company may now or shall
hereafter establish governing the conduct of its business.
2. TERM OF EMPLOYMENT.
2.1 Subject to the provisions hereof, specifically including, without
limitation, Section 2.2, the term of your employment shall be indefinite.
2.2 The Company shall have the right to terminate your employment at any
time under this Agreement in any of the following ways:
(a) on thirty (30) days prior written notice to you upon your disability
(disability shall be defined as your inability to perform duties under this
Agreement for an aggregate of sixty (60) days, which need not be consecutive,
out of any one hundred twenty (120) day period due to mental or physical
disability or incapacity); you shall be provided benefits under the Company's
workers compensation and disability insurance policies, to the extent and upon
the terms and conditions of such plans that are in effect at the time;
(b) immediately without prior notice to you by the Company for "Cause",
as hereinafter defined, provided however, that prior to any such termination for
Cause, you have had a reasonable opportunity to be heard thereon; or
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(c) at any time without Cause, provided the Company shall be obligated
to pay to you severance benefits after such termination, currently in an amount
equal to twelve (12) months' Base Salary plus benefits provided by the Company
to you at the time of such termination for such period, in accordance with the
Severance Agreement between you and the Company dated as of October 25, 2002
(the "Severance Agreement") and the Amendment to Severance Agreement dated as of
December 17, 2004 (the "Amendment to Severance Agreement") and any subsequent
amendments.
2.3 You shall have the right to terminate your employment hereunder for
any reason, upon not less than four (4) weeks' prior written notice to the
Company. The Company reserves the right to waive the notice period, or any
portion thereof.
2.4 "Cause" for the purpose of Section 2 of this Agreement shall
include: (a) willful malfeasance or gross negligence in the performance of your
duties, resulting in harm to the Company, (b) fraud or dishonesty by you with
respect to the Company, or (c) your conviction for a criminal offense carrying a
potential sentence of more than twelve months in jail.
2.5 If your employment is terminated because of your death, all
obligations of the Company hereunder shall cease, except with respect to amounts
and obligations accrued to you, including accrued vacation pay, insurance,
vested stock options, and out-of-pocket expenses, through the last day of the
month during which your death has occurred.
3. COMPENSATION. You shall receive the compensation and benefits set forth
on Exhibit A hereto ("Compensation and Benefits") for all services to be
rendered by you hereunder and for your transfer of property rights if any,
pursuant to an agreement relating to proprietary information and inventions of
even date herewith attached hereto as Exhibit B between you and the Company (the
"Confidential Information, Inventions and Noncompetition Agreement").
4. CONFIDENTIAL INFORMATION, INVENTIONS AND NONCOMPETITION. You agree to
execute, deliver and be bound by the provisions of the Confidential Information,
Inventions and Noncompetition Agreement attached hereto as Exhibit B.
5. REMEDIES. Your obligations under the Confidential Information,
Inventions and Noncompetition Agreement and the provisions of Sections 5 and 6
of this Agreement (as modified by Section 7, if applicable) shall survive the
expiration or termination of your employment with the Company in accordance with
the terms thereof. You acknowledge that a remedy at law for any breach or
threatened breach by you of the provisions of the Confidential Information,
Inventions and Noncompetition Agreement would be inadequate and you therefore
agree that the Company shall be entitled to injunctive relief in case of any
such breach or threatened breach.
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6. ASSIGNMENT. This Agreement and the rights and obligations of the parties
hereto shall bind and inure to the benefit of any successor or successors of the
Company by reorganization, merger or consolidation and any assignee of all or
substantially all of its business and properties, but, except as to any such
successor or assignee of the Company, neither this Agreement nor any rights or
benefits hereunder may be assigned by the Company or by you, except by operation
of law or by a further written agreement by the parties hereto.
7. INTERPRETATION. IT IS THE INTENT OF THE PARTIES THAT in case any one or
more of the provisions 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 the other provisions of this
Agreement, and this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein. MOREOVER, IT IS THE
INTENT OF THE PARTIES THAT if any one or more of the provisions contained in
this Agreement is or becomes or is deemed invalid, illegal or unenforceable or
in case any provision shall for any reason be held to be excessively broad as to
duration, geographical scope, activity or subject, such provision shall be
construed by amending, limiting and/or reducing it to conform to applicable laws
so as to be valid and enforceable or, if it cannot be so amended without
materially altering the intention of the parties, it shall be stricken and the
remainder of this Agreement shall remain in full force and effect.
8. NOTICES. Any notice which the Company is required to or may desire to
give you shall be given by personal delivery or registered or certified mail,
return receipt requested, addressed to you at your address of record with the
Company, or at such other place as you may from time to time designate in
writing. Any notice which you are required or may desire to give to the Company
hereunder shall be given by personal delivery or by registered or certified
mail, return receipt requested, addressed to the Company at its principal
office, or at such other office as the Company may from time to time designate
in writing. The date of personal delivery or five (5) days after the date of
mailing any notice under this Section 8 shall be deemed to be the date of
delivery thereof.
9. WAIVERS. No waiver of any right under this Agreement shall be deemed
effective unless contained in writing signed by the party charged with such
waiver, and no waiver of any right arising from any breach or failure to perform
shall be deemed to be a waiver of any future such right or of any other right
arising under this Agreement. If either party should waive any breach of any
provision of this Agreement, he or it shall not thereby be deemed to have waived
any preceding or succeeding breach of the same or any other provision of this
Agreement.
10. COUNSEL. You acknowledge that you have had the opportunity to read this
Agreement in its entirety and to obtain the advice of counsel regarding its
terms and conditions.
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11. COMPLETE AGREEMENT; AMENDMENTS. The foregoing, including Exhibits A and
B attached hereto, together with the Severance Agreement and the Amendment to
Severance Agreement, represents the entire agreement of the parties with respect
to the subject matter hereof, superseding any other previous oral or written
communications, representations, understandings, or agreements with the Company
or any officer or representative thereof. Notwithstanding anything herein to the
contrary, this Agreement shall have no affect on the terms of the Severance
Agreement and the Amendment to Severance Agreement which shall remain in full
force and effect. Any amendment to this Agreement or waiver by the Company of
any right hereunder shall be effective only if evidenced by a written instrument
executed by the parties hereto.
12. HEADINGS. The headings of the Sections contained in this Agreement are
inserted for convenience and reference only and in no way define, limit, extend
or describe the scope of this Agreement or the intent of any provisions hereof,
and shall not be deemed to constitute a part hereof or to affect the meaning of
this Agreement in any way.
13. COUNTERPARTS. This Agreement may be signed in two counterparts, each of
which shall be deemed an original and both of which shall together constitute
one agreement.
14. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the Commonwealth of Massachusetts, without
regard to its conflict of law principles.
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If you are in agreement with the foregoing, please sign your name below and
also at the bottom of the Confidential Information, Inventions and
Noncompetition Agreement, whereupon both Agreements shall become binding in
accordance with their terms. Please then return this Agreement to the Company.
(You may retain for your records the accompanying counterpart of this Agreement
enclosed herewith).
Very truly yours,
MACROCHEM CORPORATION,
a Delaware corporation
By:/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President & C.E.O.
Read, Accepted and Agreed:
/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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EXHIBIT A
COMPENSATION AND BENEFITS
OF ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
COMPENSATION. Your current Base Salary shall be $180,000 per year, less
applicable deductions, payable in accordance with the Company's payroll
policies. Your Base Salary shall be reviewed and adjusted from time to
time by the Company. You will be eligible to participate in the
executive compensation plan maintained by the Company from time to time
subject to plan terms and generally applicable Company policies.
VACATION. You will be entitled to all state statutory holidays, and
four (4) weeks paid vacation for the first year of employment which
will accrue at a rate of 13.33 hours per month. Thereafter, any
additional vacation time, over and above the vacation time already
referred to herein shall be determined by the Company.
INSURANCE AND BENEFITS. During your employment, you will be eligible to
participate in the benefits plans made available by the Company from
time to time, subject to plan terms and generally applicable Company
policies. Currently, Company benefits include medical insurance, dental
insurance, life insurance, and short and long-term disability
insurance. The Company currently pays 75% of the premiums for medical
and dental insurance and 100% of the premiums for life, short and
long-term disability insurance. You will also be able to participate in
the Company's 401(k) and deferred compensation plans.
SICK DAYS AND EXCUSED ABSENCE DAYS. You will be entitled to
compensation for sick days and excused absence days in accordance with
Company policy.
STOCK OPTIONS. You have been granted stock options to purchase shares
of the Common Stock of the Company, $.01 par value per share. Future
stock options may be granted by the Company based in part on your
performance.
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EXHIBIT B
CONFIDENTIAL INFORMATION, INVENTIONS AND NONCOMPETITION AGREEMENT
To: MacroChem Corporation Date: December 17, 2004
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I, the undersigned, acknowledge the importance to MacroChem Corporation
(the "Company") of protecting its confidential information and other legitimate
interests, including without limitation the valuable confidential information
and goodwill that it has developed or acquired. I also acknowledge the Company's
practice of obtaining agreements such as this from its employees. Therefore, in
consideration of my initial or ongoing employment with the Company and in
consideration of my being granted access to trade secrets and other confidential
information of the Company and for other good and valuable consideration, the
receipt and sufficiency of which I hereby acknowledge:
1. I agree that all Confidential Information, as defined below, which I
create or to which I have access as a result of my employment and
other associations with the Company is and shall remain the sole and
exclusive property of the Company. I agree that, except as required
for the proper performance of my regular duties for the Company I will
never, directly or indirectly, use or disclose any Confidential
Information. I understand and agree that this restriction shall
continue to apply after the termination of my employment or this
Agreement, howsoever caused. Further, I agree to provide prompt notice
to the Company of any required disclosure of Confidential Information
sought pursuant to subpoena, court order or any other legal
requirement and to provide the Company a reasonable opportunity to
seek protection of the Confidential Information prior to any such
disclosure.
2. I agree that all documents, records and files, in any media of
whatever kind and description, relating to the business, present or
otherwise, of the Company and any copies (including without limitation
electronic), in whole or in part, thereof (the "Documents" and each
individually, a "Document"), whether or not prepared by me, shall be
the sole and exclusive property of the Company. Except as required for
the proper performance of my regular duties for the Company or as
expressly authorized in writing in advance by the Board or its
designee, I will not copy any Documents or remove any Documents, or
copies, from the premises of the Company. I will safeguard, and return
to the Company immediately upon termination of my employment, and at
such other times as may be specified by the Company, all Documents and
all other property of the Company, and all documents, records and
files of their customers, subcontractors and suppliers ("Third-Party
Documents" and each individually a "Third-Party Document") and all
other property of such customers, subcontractors and suppliers, then
in my possession or control; provided, however, that, if a Document or
Third-Party Document is on electronic media, I may, in lieu of
surrender of the Document or Third-Party Document, provide a copy on
electronic media (e.g., a properly formatted diskette) to the Company
and delete and overwrite all other electronic media copies thereof. I
also agree that, upon request of any duly authorized officer of the
Company, I will disclose all passwords necessary or desirable to
enable the Company to obtain access to the Documents and Third-Party
Documents.
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3. I shall maintain accurate and complete contemporaneous records of, and
shall immediately and fully disclose and deliver to the Company, all
Intellectual Property, as defined below. I have attached hereto as
SCHEDULE A, a list describing all inventions, original works of
authorship, developments, improvements, and trade secrets
which were made by me prior to my employment with the Company, which
belong to me and which are not assigned to the Company hereunder
(collectively referred to as "Prior Inventions") and, if no such list
is attached, I represent and warrant that there are no such Prior
Inventions. If, in the course of my employment with the Company, I
incorporate into any of the Intellectual Property any Prior Inventions
or any other invention, improvement, development, concept, discovery
or other proprietary information owned by me or in which I have an
interest (collectively, including Prior Inventions, "Employee
Inventions"), I hereby grant the Company an irrevocable, worldwide,
fully paid-up, royalty-free, non-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. All copyrightable
works that I create, including without limitation computer programs
and documentation, shall be considered "work made for hire" and shall,
upon creation, be owned exclusively by the Company.
4. I hereby assign and agree in the future to assign to the Company (or
as otherwise directed by the Company) my full right, title and
interest in and to all Intellectual Property. I agree 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.
5. To the extent I cannot transfer and assign my entire right, title, and
interest to the Intellectual Property, or any portion thereof, then I
will assign and transfer all right, title, and interest in and to the
Intellectual Property to the Company at the first opportunity to do
so. To the extent that I cannot assign and transfer any of my full
right, title, and interest in the Intellectual Property then I hereby
grant the Company an irrevocable, worldwide, fully paid-up,
royalty-free, exclusive license, with the right to sublicense through
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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. If the Company is unable because of
my mental or physical incapacity or for any other reason to secure my
signature for any of the assignments, licenses, or other reasonably
requested documents pertaining to the Intellectual Property referenced
in Paragraphs 4 through 7 hereof within ten (10) business days of
delivery of said documents to me, then I hereby irrevocably designate
and appoint the Company and its duly authorized officers and agents as
my agent and attorney in fact, to act for and in my behalf and stead
to execute and file said documents and to do all other lawfully
permitted acts to further the perfection, defense, and enjoyment of
the Company's rights relating to the Intellectual Property with the
same legal force and effect as if executed by me. I stipulate and
agree that such appointment is a right coupled with an interest and
will survive my incapacity or unavailability at any future time.
6. I further agree that I will assign, deliver and communicate to the
Company, its representatives or agents or their successors and
assigns, any know-how, facts and materials arising from or relating to
said Intellectual Property including without limitation: (i) all
simulations, prototypes, and other embodiments of the Intellectual
Property; (ii) all drawings, blueprints, calculations, research plans
and results, lab notes, workbooks and other records and written
materials that relate to the Intellectual Property or that embody or
record any know-how pertaining to the Intellectual Property; (iii) all
files, documents and communications pertaining to the Intellectual
Property; and (iv) evidence for interference purposes or for other
legal proceedings whenever requested. I will not charge the Company,
successors, or assigns for time spent in complying with these
obligations under Paragraphs 3 through 6 of this Agreement.
7. I hereby represent and warrant that all of the product resulting from
my work for the Company will be original and will not infringe the
rights of any third party, including without limitation intellectual
property rights, such as rights pertaining to patents, trademarks,
copyrights and trade secrets.
8. I agree that I will not, and will not permit anyone acting on my
behalf to, assert against the Company, its directors, shareholders,
officers, managers, members, general or limited partners, joint
venturers, employees, representatives or agents (collectively, with
the Company, the "Corporate Group") any cause of action, right or
claim, of any kind or nature, with respect to the Intellectual
Property or any Employee Inventions, including without limitation
Employee Inventions incorporated into the Intellectual Property, and I
agree to indemnify and hold harmless the Corporate Group, and each of
them, from any and all causes of action, rights or claims, of any kind
or nature, losses and damages and costs and expenses, including
without limitation attorneys' fees, and any and all other liabilities
incurred by any of the Corporate Group arising from or relating to
proprietary rights in the Employee Inventions, or any of them, or
resulting from my failure to meet any of my obligations under any of
Paragraphs 3 through 7 of this Agreement or under this Paragraph 8.
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9. I agree that, during my employment and during the two (2) year period
immediately following termination of my employment, I will not,
directly or indirectly, compete, or undertake any planning to compete,
with the Company, anywhere in the world, whether as an owner, partner,
investor, consultant, employee or otherwise. Specifically, but without
limiting the foregoing, I agree not to work or provide services, in
any capacity, whether as an employee, independent contractor or
otherwise, whether with or without compensation, to any Person who is
engaged in any business that is competitive with the business of the
Company for which I have provided services, as conducted or in
planning during my employment. I understand that the foregoing shall
not prevent my passive ownership of two percent (2%) or less of the
equity securities of any publicly traded company.
10. I acknowledge and agree that any and all goodwill which I develop
during my employment with any of the customers, prospective customers,
subcontractors or suppliers of the Company shall be the sole,
exclusive and permanent property of the Company and shall continue to
be such after termination of my employment, howsoever caused.
11. I agree that, during my employment and during the two (2) year period
immediately following termination of my employment, I will not
directly or indirectly (a) solicit or encourage any customer of the
Company to terminate or diminish its relationship with it; or (b) seek
to persuade any such customer or prospective customer of the Company
to conduct with anyone else any business or activity which such
customer or prospective customer conducts or could conduct with the
Company; provided that these restrictions shall apply (y) only with
respect to those Persons who are or have been a customer of the
Company at any time within the immediately preceding two year period
or whose business has been solicited on behalf of the Company by any
of their officers, employees or agents within said two year period,
other than by form letter, blanket mailing or published advertisement,
and (z) only if I have performed work for such Person during my
employment with the Company or been introduced to, or otherwise had
contact with, such Person as a result of my employment or other
associations with the Company or have had access to Confidential
Information which would assist in my solicitation of such Person.
12. I agree that during my employment and for the two (2) year period
immediately following termination of my employment, I will not, and
will not assist anyone else to, (a) hire or solicit for hiring any
employee of the Company or seek to persuade any employee of the
Company to discontinue employment or (b) solicit or encourage any
independent contractor providing services to the Company to terminate
or diminish its relationship with it. For the purposes of this
Agreement, an "employee" of the Company is any person who was such at
any time within the preceding two years.
13. Except for any outside employments and directorships currently held by
me as listed on Schedule B hereto, and except with the prior written
consent of the Company, which consent will not be unreasonably
withheld, I will not, during my employment by the Company, undertake
or engage in any other employment, occupation or business enterprise,
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other than one in which I am an inactive investor, that would
interfere with my obligations to the Company. I hereby agree, that
except as disclosed on Schedule B hereto, during my employment by the
Company, I will not, directly or indirectly, engage (a) individually,
(b) as an officer, (c) as a director, (d) as an employee, (e) as a
consultant, (f) as an advisor, (g) as an agent (whether a salesperson
or otherwise), (h) as a broker, or (i) as a partner, coventurer,
stockholder or other proprietor owning directly or indirectly more
than two percent (2%) interest in any firm, corporation, partnership,
trust, association, or other organization that is engaged in any
business that is competitive with the business of the Company as
conducted or in planning during my employment (such firm, corporation,
partnership, trust, association, or other organization being
hereinafter referred to as a "Prohibited Enterprise"), without the
consent of the Company, which consent will not be unreasonably
withheld. Except as may be shown on Schedule B hereto, I hereby
represent that I am not engaged in any of the foregoing capacities (a)
through (i) in any Prohibited Enterprise.
14. In signing this Agreement, I give the Company assurance that I have
carefully read and considered all the terms and conditions of this
Agreement, including the restraints imposed on me under this
Agreement. I agree without reservation that each of the restraints
contained herein is necessary for the reasonable and proper protection
of the goodwill, Confidential Information and other legitimate
interests of the Company; that each and every one of those restraints
is reasonable in respect to subject matter, length of time and
geographic area; and that these restraints will not prevent me from
obtaining other suitable employment during the period in which I am
bound by these restraints. I agree that I will never assert, or permit
to be asserted on my behalf, in any forum, any position contrary to
the foregoing. I also acknowledge and agree that, were I to breach any
of the provisions of this Agreement, the harm to the Company would be
irreparable. I therefore agree that in the event of such a breach or
threatened breach the Company shall, in addition to any other remedies
available to them, have the right to obtain preliminary and permanent
injunctive relief against any such breach without having to post bond.
I further agree that, in the event that any provision of this
Agreement 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.
15. In the event of any alleged breach of this Agreement, I hereby consent
and submit to the jurisdiction of the federal and state courts in and
of the Commonwealth of Massachusetts and of the federal and state
courts in and of the state in which I am then employed. I agree to
accept service of process by registered or certified mail or the
equivalent directed to my last known address on the books of the
Company or by whatever other means are permitted by such court.
16. Words or phrases which are initially capitalized or are within
quotation marks shall have the meanings provided in this paragraph and
as provided elsewhere in this Agreement. For purposes of this
Agreement, the following definitions apply:
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"Confidential Information" means any and all information of the
Company that is not generally known by others with whom it competes or
does business, or with whom it plans 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, would assist in competition
against them, including but not limited to (a) all proprietary
information of the Company, including but not limited to the products
and services, technical data, methods, processes, trade secrets,
know-how, developments, inventions, and formulae of the Company, (b)
the development, research, testing, marketing and financial activities
and strategic plans of the Company, (c) the manner in which it
operates, (d) its costs, sources of supply and financial performance,
(e) the identity and special needs of the customers, prospective
customers and subcontractors of the Company, (f) the people and
organizations with whom the Company has business relationships and
those relationships. Confidential Information also includes any
information that the Company may receive or has received from
customers, subcontractors, suppliers or others, with any
understanding, express or implied, that the information would not be
disclosed.
"Intellectual Property" means inventions, discoveries, developments,
methods, processes, compositions, works, concepts and ideas (whether
or not patentable or copyrightable or constituting trade secrets)
conceived, made, created, developed or reduced to practice by me
(whether alone or with others and whether or not during normal
business hours or on or off Company premises) during my employment
that relate in any way to the business, products or services of the
Company or to any prospective activity of the Company or which make
use of the Confidential Information or of facilities or equipment of
the Company.
"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.
17. I represent and warrant that my employment by the Company and the
execution and performance of this Agreement will not breach or be in
conflict with any other agreement to which I am a party or am bound. I
will not disclose to or use on behalf of the Company, or induce the
Company to use, any proprietary information of any previous employer
of mine or other third party without that party's consent.
18. This Agreement sets forth the entire agreement between me and the
Company and supersedes all prior and contemporaneous communications,
agreements and understandings, written or oral, with respect to the
subject matter hereof; provided, however, that this Agreement shall
not terminate or supersede any additional obligations I may have
pursuant to any other agreement or under applicable law with respect
to confidentiality, non-competition, assignment of rights to
intellectual property or the like. In the event of conflict between
this Agreement and any prior agreement between me and the Company,
this Agreement shall govern. No deletion, addition, marking, notation
or the like change to the body of this Agreement shall be of any force
or effect and this Agreement shall be interpreted as if such change
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had not been made. This Agreement may not be modified or amended, and
no breach shall be deemed to be waived, unless agreed to in writing by
me and an expressly authorized officer of the Company. If any
provision of this Agreement should, for any reason, be held invalid or
unenforceable in any respect, it shall not affect any other
provisions, and shall be construed by limiting it so as to be
enforceable to the maximum extent permissible by law. Provisions of
this Agreement shall survive any termination if so provided in this
Agreement or if necessary or desirable to accomplish the purpose of
other surviving provisions.
19. Neither the Company nor I may make any assignment of this Agreement or
any interest in it, 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 my consent in the event that the Company shall hereafter
affect a reorganization, consolidate with, or merge into any Person or
transfer to any Person all or substantially all of the business,
properties or assets of the Company or of any division or line of
business of the Company with which I am at any time associated. This
Agreement shall inure to the benefit of and be binding upon me and the
Company, and each of our respective successors, executors,
administrators, heirs, representatives and permitted assigns.
20. I acknowledge and agree that this Agreement does not in any way
obligate the Company to retain my services for a fixed period or at a
fixed level of compensation; nor does it in any way restrict my right
or that of the Company to terminate my employment at any time, with or
without notice or cause.
21. I expressly consent to be bound by the provisions of this Agreement
for the benefit of the Company, successor or permitted assign to whose
employ I may be transferred, without the necessity that this Agreement
be re-signed at the time of such transfer.
22. This is a Massachusetts contract and shall be governed by and
construed in accordance with the laws of the Commonwealth of
Massachusetts, without regard to the conflict of laws principles
thereof.
23. In signing this Agreement, I give the Company assurance that I have
read and understood all of its terms; that I have had a full and
reasonable opportunity to consider its terms and to consult with any
person of my choosing before signing; that I have not relied on any
agreements or representations, express or implied, that are not set
forth expressly in this Agreement; and that I have signed this
Agreement knowingly and voluntarily.
24. CONFLICTS. In the event of any conflict between the provisions of this
agreement and the provisions of the Employment Agreement, the
provisions of the Employment Agreement will govern.
Intending to be legally bound hereby, I have signed this Agreement
under seal as of the day and year written below.
Signature: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------
Printed Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Date: December 17, 2004
-B8-
SCHEDULE A
LIST OF PRIOR INVENTIONS AND ORIGINAL WORKS OF AUTHORSHIP
IDENTIFYING NUMBER OR
TITLE DATE BRIEF DESCRIPTION
---------------------------- ------------ -------------------------------
X No inventions or improvements
----
Additional sheets attached
----
Signature of Employee: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Date: 12/17/04
-B9-
SCHEDULE B
OUTSIDE EMPLOYMENTS AND DIRECTORSHIPS
OF ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
None.
-B10-
