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Exhibit 10.1
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EXECUTIVE EMPLOYEE AGREEMENT
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To: Glenn E. Deegan Date: December 17, 2004
27 Allerton Road
Milton, MA 02186
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.
[Remainder of page intentionally left blank]
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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/Robert J. DeLuccia
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Robert J. DeLuccia
President & C.E.O.
Read, Accepted and Agreed:
/s/Glenn E. Deegan
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Glenn E. Deegan
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EXHIBIT A
COMPENSATION AND BENEFITS
OF GLENN E. DEEGAN
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
110 Hartwell Avenue
Lexington, Massachusetts 02421-3134
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 p
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