Exhibit 10.17
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (hereafter referred to as this
"Agreement") is made by and between Point Therapeutics, Inc, a Delaware
corporation, (the "Company") and Xxxxxxxx X. Xxxxxxxxx, Pharm.D. (the
"Executive") as of the 13th day of January, 2003 (the "Effective Date").
WHEREAS, subject to the terms and conditions hereinafter set forth, the
Company wishes to employ the Executive as Vice President, Regulatory, and the
Executive wishes to serve the Company in that capacity;
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. 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. 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.
(a) During the term hereof, the Executive shall serve the
Company as its Vice President, Regulatory. 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.
(c) During the term hereof, the Executive shall perform the
duties and responsibilities of her position and such other duties and
responsibilities on behalf of the Company and its Affiliates, reasonably
consistent with her position, as may be designated from time to time by the
President, Chief Executive Officer or Chief Operating Officer (collectively, the
"Senior Executive") or the Board of Directors (the "Board"). Without limiting
the generality of the foregoing, the Executive, subject to the direction and
control of the Senior Executive and the Board, shall be responsible for managing
all of the Company's U.S. and foreign regulatory matters relating to the
Company's preclinical and clinical plans and operations.
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(d) During the term hereof, the Executive shall devote her
full business time and her 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 her duties and responsibilities for them.
It is agreed, however, that the provisions of this Section 3(d) shall not be
violated (i) by the Executive's holding of directorships or other positions in
charitable, educational or other not-for-profit organizations which do not
involve continuous or substantial time commitments or (ii) by the Executive's
holding of directorships or other positions 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. Without limiting the generality of the immediately
preceding sentence, the Executive may continue to retain her ownership interest
in Uprichard Consulting LLC.
4. Compensation and Benefits. As compensation for all services
performed by the Executive under and during the term hereof:
(a) Base Salary. During the term hereof, the Company shall
pay the Executive a base salary at the rate of One Hundred and Eighty Thousand
Dollars ($180,000) per year, payable in accordance with the payroll practices of
the Company for its executives. The Board, in consultation with the Senior
Executive, 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 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
assessment of the Board, in consultation with the Senior Executive and 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 and the
Senior 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.
(c) Stock Options. The Executive shall be granted an option
to purchase 60,000 shares of the common stock of the Company (the "Option") at
an exercise price equal to the common stock's closing price on the date the
grant is approved by the Board of Directors,
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which date shall be no more than ten business days following the Effective Date.
The Option will vest and be exercisable as follows: 15,000 shares on the first
anniversary of the Effective Date, with an additional 15,000 shares on each
subsequent anniversary thereof until the Option shall be fully vested and
exercisable on the fourth anniversary of the Effective Date. Notwithstanding the
forgoing, in the event of a Change of Control of the Company (as defined in
Section 5(g)(iii) hereof), all shares of the Option not then vested and
exercisable shall become immediately vested and exercisable on the date of the
Change of Control. Except as otherwise expressly provided herein, the Option
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. The Executive shall not be eligible to receive
any stock options or other equity of the Company, whether under an equity
incentive plan or otherwise, however, except as expressly provided in this
Agreement or as otherwise expressly authorized for her individually by the
Board.
(d) Vacations. During the term hereof, the Executive shall
be entitled to earn vacation at the rate of four (4) weeks per annum, in all
cases 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, and subject to
any contribution therefor required of Company employees generally, the Executive
shall be 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. As used
herein, "employee benefit plans" mean health and welfare and retirement plans
which are subject to the federal Employee Retirement Income Security Act of 1974
or any successor statute, as amended.
(f) Business Expenses. The Company shall pay or reimburse
the Executive for all reasonable business expenses incurred or paid by the
Executive in the performance of her 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 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 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 her 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)
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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,
her heirs, executors or administrators hereunder.
(b) Disability.
(i) The Company may terminate the Executive's
employment hereunder, upon notice to the Executive, in the event that the
Executive becomes disabled during her employment hereunder through any illness,
injury, accident or condition of either a physical or psychological nature and,
as a result, is unable to perform substantially all of her 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 her 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 her 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 her 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 her 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
Executive's employment hereunder for Cause at any time upon notice to the
Executive; provided that, prior
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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, her
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, her duties and responsibilities
to the Company or any of its Affiliates, 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 her
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 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 six (6) months following the date of termination and,
in lieu of continuation of the Executive's participation, or that of any of her
eligible dependents, in any of the Company's employee benefit plans following
termination of her employment, shall provide the Executive a single lump sum
payment in the amount of Twelve Thousand Five Hundred Dollars ($12,500). 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 her 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:
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(i) Failure of the Company to continue the Executive
in the position of Vice President, Regulatory;
(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
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 six (6) months following the date of
termination and, in lieu of continuation of the Executive's participation, or
that of any of her eligible dependents, in any of the Company's employee benefit
plans following termination of her employment, shall provide the Executive a
single lump sum payment in the amount of Twelve Thousand Five Hundred Dollars
($12,500). 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 terminate her 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.
(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 her 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 her employment terminates, a lump sum payment
equal to three-fourths 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 her 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 her eligible dependents, in any of the Company's employee benefit
plans following termination of her employment, shall provide the Executive a
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single lump sum payment in the amount of Eighteen Thousand Seven Hundred Fifty
Dollars ($18,750).
(ii) In the event that payments or other benefits to
which the Executive is entitled under this Agreement constitute an
"excess parachute payment" as that term is defined in Section 280G of
the Internal Revenue Code of 1986, or any successor provision, to the
extent any agreement by, or policy of, the Company is put in place to
address possible excess parachute payments for any other senior
executive (a "Parachute Arrangement"), Executive shall have a similar
arrangement, the terms and conditions of which shall be no less
favorable to the Executive than the terms and conditions of such
Parachute Arrangement.
(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 or other employee 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 or other employee plan of the Company or any of
its Affiliates.
(iv) The Company shall promptly reimburse the
Executive for the amount of all reasonable attorneys' fees and expenses
incurred by the Executive in
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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 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.
(b) Except for any right that the Executive may have to
continue her coverage and that of her eligible dependents at her 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 employee 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 her 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.
(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 her duties and responsibilities to the Company and its
Affiliates, any Confidential Information obtained by the Executive incident to
her employment or other associations with the Company or any of its Affiliates.
The Executive understands that this restriction shall continue to apply after
her 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
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Executive shall safeguard all Documents and shall surrender to the Company at
the time her 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.
(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, to
the best of her knowledge, all of the Products resulting from her work for the
Company shall be original and shall 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.
(c) The Executive hereby assigns and agrees in the future to
assign to the Company (or as otherwise directed by the Company) her 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 her 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 her obligations under this Section 8. All copyrightable
works constituting Intellectual Property that the Executive creates shall be
considered "work made for hire."
9. Restricted Activities. The Executive agrees that some
restrictions on her activities during and after her 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 her employment terminates (the "Non-Competition
Period"), the Executive
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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)
immune modulating agents that are post-prolyl cleaving protease inhibitors, (ii)
immune modulating agents that are chemically synthesized homo and hetero
bivalent or multivalent conjugates that are designed to induce the association
or aggregation of T-cell surface receptors and that include as one component a
protease inhibitor, (iii) agents that bind to Dipeptidyl Peptidase IV (DPP IV),
a membrane anchored ecto-protease identified as the leukocyte antigen CD26 and
also called CD26, adenosine deaminase binding protein (ADAbp) and thymocyte
activation molecule (THAM), (iv) agents that bind to fibroblast activation
protein (FAP), and (v) all products described and claimed in any patent
application or issued patent owned or licensed by the Company or any of its
Affiliates, and the Executive's undertaking shall encompass all items, products
and services that may be used in substitution for the Products. The foregoing
will not prevent the Executive from owning 2% or less of the publicly-traded
securities of any corporation.
(b) The Executive further agrees that while she 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 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 she
has carefully read and considered all the terms and conditions of this
Agreement, including without limitation the restraints imposed upon her 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 she 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 that the execution of this Agreement and the performance of her
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
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court order or other legal obligation that would affect the performance of her
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 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 competes or does business, or with whom any of them plans to
compete or do business and any and all information, which, if publicly 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 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 has 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 (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 the
definition of "Change of Control" set forth in Section 5(g)(iii) above, "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.
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(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, provided that the existence of each Product has been
disclosed to the Executive.
13. Withholding. All payments made by the Company under this
Agreement 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
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 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 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 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
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 her
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 General Counsel, 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 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.
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19. Amendment. This Agreement may be amended or modified only by a
written instrument signed by the Executive and by an expressly authorized
representative of the Company.
20. Headings. The headings and captions in this Agreement are for
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
counterparts, each of which shall be an original and all of which together shall
constitute one and the same instrument.
22. Governing Law. This is a Massachusetts contract and shall be
construed 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/ Xxxxxxxx X. Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------- --------------------------
Xxxxxxxx X. Xxxxxxxxx Xxxxxx X. Xxxxxxx, Xx.
President and Chief Executive Officer
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