Exhibit 10.1
--------------------------------------------------------------------------------
EXECUTIVE EMPLOYEE AGREEMENT
--------------------------------------------------------------------------------
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
1
<PAGE>
(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.
2
<PAGE>
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.
3
<PAGE>
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]
4
<PAGE>
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
---------------------------
Robert J. DeLuccia
President & C.E.O.
Read, Accepted and Agreed:
/s/Glenn E. Deegan
----------------------
Glenn E. Deegan
5
<PAGE>
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.
-A1-
<PAGE>
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 requ
