AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "AGREEMENT")
entered into as of this 30 day of June, 1999, amends and restates the Employment
Agreement made as of January 1, 1997, between Palomar Medical Technologies,
Inc., a Delaware corporation (the "COMPANY"), and ▇▇▇▇▇▇ ▇▇▇▇▇▇, an individual
(the "EXECUTIVE"),
WITNESSETH THAT:
WHEREAS, the Company desires to employ Executive as its Chief Financial
Officer for the period and upon and subject to the terms herein provided; and
WHEREAS, the Company desires to be assured that Executive will not
compete with the Company for the period and within the geographical areas
hereinafter specified; and
WHEREAS, Executive is willing to agree to be employed by the Company
for the period and upon and subject to the terms herein provided; and
WHEREAS, Executive does not desire to work for the Company in a
position lower than that of Chief Financial Officer and is willing to agree not
to compete with the Company;
NOW, THEREFORE, in consideration of the premises, the parties hereto
covenant and agree as follows:
SECTION 1. TERM OF EMPLOYMENT; COMPENSATION. The Company agrees to
employ Executive from January 1, 1997 until December 31, 1999 (the "Term") as
its Chief Financial Officer, with the responsibilities normally associated with
such position (the "EXECUTIVE POSITION"). The Company will pay Executive for his
services during the term of his employment hereunder at an annual rate of Two
Hundred Thousand Dollars ($200,000), subject to a 15% increase per year, payable
in arrears, in equal installments, in accordance with standard Company practice,
but in any event not less often than monthly, subject only to such payroll and
withholding deductions as are required by law.
SECTION 2. OFFICE AND DUTIES. Executive shall have the usual duties,
responsibilities and authority (the "EXECUTIVE'S AUTHORITY") of a Chief
Financial Officer, and shall report to the Board of Directors of the Company,
and shall perform such specific other tasks, consistent with his position as
Chief Financial Officer, as may from time to time be assigned to him by the
Board of Directors. Executive shall devote substantially all of his business
time, labor, skill, undivided attention and best ability to the performance of
his duties hereunder. Executive may not, without Executive's consent, be
required to perform Executive's duties at any location that is more than fifty
(50) miles from the Company's principal office in Beverly, Massachusetts, except
that Executive agrees that he will travel to whatever extent is reasonably
necessary in the conduct of the Company's business.
SECTION 3. EXPENSES. Executive shall be entitled to reimbursement for
expenses incurred by him in connection with the performance of his duties
hereunder upon receipt of vouchers therefor in accordance with such procedures
as the Company has heretofore or may hereafter establish.
SECTION 4. VACATION DURING EMPLOYMENT. Executive shall be entitled to
such reasonable vacations as may be allowed by the Company in accordance with
general practices to be established, but in any event not less than four (4)
weeks during each twelve (12) month period.
SECTION 5. ADDITIONAL BENEFITS. The Company shall make available to
Executive at least those perquisites presently granted to Executive. Nothing
herein contained shall preclude Executive, to the extent he is otherwise
eligible, from participation in all group insurance programs or other fringe
benefit plans which the Company may hereafter in its sole and absolute
discretion make available generally to its employees, but the Company shall not
be required to establish or maintain any such program or plan.
SECTION 6. TERMINATION BY THE COMPANY. The Company shall have the right
to terminate Executive's employment at any time for "Cause". For purposes of
this Agreement, "Cause" shall mean (a) termination by action of a majority of
the members of the Company's Board of Directors, acting on the written opinion
of counsel, because of Executive's willful and continued refusal, without proper
cause, to perform substantially Executive's duties under this Agreement; or (b)
the conviction of Executive of a felony or an act of fraud or embezzlement
against the Company or any of its divisions, subsidiaries of affiliates (which
through lapse of time or otherwise is not subject to appeal). Such termination
shall be effected by written notice thereof, personally hand delivered by the
Company to Executive, and, except as hereinafter provided, shall be effective as
of the thirtieth (30th) calendar day after such notice; PROVIDED, however, that
if within such thirty (30) calendar day period Executive shall cease Executive's
reftisal and shall use Executive's best efforts to perform such obligations, the
termination shall not be effective.
SECTION 7. TERMINATION BY DEATH. In the event Executive dies during the
Term, Executive's employment shall terminate (effective on the date of
Executive's death) and the provisions of Section 10 shall be applicable.
SECTION 8. TERMINATION BY Disability. In the event that Executive
suffers a disability which prevents Executive from substantially performing
Executive's duties under this Agreement for a period of at least one hundred
eighty (180) consecutive or nonconsecutive calendar days within any three
hundred sixty-five (365) calendar day period, the Company shall have the right,
after such one hundred eighty (180) calendar day period has elapsed, to
terminate Executive's employment hereunder upon thirty (30) calendar days
written notice to Executive and the provisions of Section 10 shall be
applicable.
-2-
Section 9. TERMINATION BY EXECUTIVE. Notwithstanding any other
provisions of this Agreement, Executive may terminate Executive's employment
either (i) in the event of a "Change in Control" or (ii) by written notice
served upon the Company within thirty (30) calendar days after Executive has
knowledge of an event constituting "GOOD REASON."
For purposes of this Agreement, the term "CHANGE IN CONTROL" shall mean
either (i) that, after January 1, 1997, any person (an "ACQUIRING Person"),
together with its affiliates and associates (as defined in Rule 12b-2 under the
Securities Exchange Act of 1934, or any successor rule thereto) shall become the
beneficial owner (as defined in Rule 13d-3 under the Securities and Exchange
Act), including by merger or otherwise, of more than fifty percent (50%) of the
total voting power of all classes of voting stock of the Company or (ii) that
one or more Acquiring Persons has succeeded as the result of or in response to
actual or threatened election contests, whether by settlement or otherwise, in
having elected to the Board of Directors of the Company, whether at one time or
on a cumulative basis, a sufficient number of its nominees to constitute (x)
more than thirty percent (30%) of the members of the Company's Board of
Directors, rounded down to the nearest whole number, if the number of directors
on the Company's Board is eight or less, or (y) more than forty percent (40%) of
the members of the Company's Board, rounded down to the nearest whole number, if
the number of directors on the Company's Board is nine or more.
For purposes of this Agreement, the term "Good Reason" shall mean:
(i) any action by the Company which results in a diminution in
the Executive Position or in the Executive's Authority;
(ii) any failure by the Company to timely pay the amounts or
provide the benefits described in this Agreement, other than an
isolated failure not occurring in bad faith and which is remedied
promptly after receipt of written notice thereof given by Executive; or
(iii) a material breach by the Company of any of the
provisions of this Agreement which failure or breach shall have
continued for thirty (30) days after written notice from Executive to
the Company specifying the nature of such failure or breach; or
(iv) any action by the Company that would result in a
violation of SECTION 2.
-3-
SECTION 10. EFFECT OF TERMINATION. (a) FOR CAUSE; WITHOUT GOOD REASON
AND NO CHANGE IN CONTROL; AND DEATH. In the event of termination of this
Agreement (i) by the Company for Cause, (ii) by the Executive without Good
Reason or Change in Control or (iii) by reason of the death of the Executive,
the Company shall pay Executive (or Executive's beneficiary in the event of the
Executive's death) any base salary or other compensation earned (and a pro rata
portion of the bonus payable with respect to the year in which termination
occurred) but not paid to Executive prior to the effective date of such
termination and, in the case of termination by reason of death, the Company
shall pay Executive's beneficiary (i) the base salary that Executive would have
earned for a period of six (6) months following his death, plus (ii) a pro rata
portion of any bonuses or other incentive compensation that Executive would have
earned if he had been employed for the full fiscal year in which he died payable
at the time of payment of similar bonuses made to other Executives of the
Company, plus (iii) any death benefits that Executive is entitled to under the
Company's policies in effect on Executive's date of death.
(b) WITHOUT CAUSE; FOR GOOD REASON. In the event of (i) termination of
this Agreement by the Company other than for Cause, (ii) termination of this
Agreement by Executive for Good Reason without a Change in Control, the Company
shall pay Executive, in a lump stun within thirty (30) days after termination
under this Section 10(B), the sum of (A) the amount described in Section 10(a)
of this Agreement (other than the payments to be paid in case of termination by
death), and (B) the amount equal to one time (lx) the Executive's annual base
salary in effect at the time of termination under this SECTION 10(B), and the
Company shall continue during the Term all of the benefits and perquisites set
forth in SECTION 5, notwithstanding the fact that Executive may no longer be an
employee eligible to participate in one or more of the employee benefit plans
maintained by the Company.
(c) CHANGE IN CONTROL (OTHER THAN AN APPROVED CHANGE IN CONTROL). In
the event of termination of this Agreement by Executive within one (1) year
after a Change in Control (other than an Approved Change in Control), the
Company shall pay Executive, in a lump sum payment within thirty (30) days after
termination under this SECTION 10(C), the sum of (A) the amount described in
Section 10(a) of this Agreement (other than the payments to be made in case of
termination by death), and (B) the amount equal to four (4x) times Executive's
Annual Compensation, and the Company shall continue during the Term all of the
benefits and perquisites set forth in Section 5, notwithstanding the fact that
Executive may no longer be an employee eligible to participate in one or more of
the employee benefit plans maintained by the Company.
For purposes of this Agreement, the term "APPROVED CHANGE IN CONTROL"
shall mean a Change of Control that has occurred with the prior approval of a
majority of the Continuing Directors and the term "CONTINUING DIRECTOR" shall
mean any member of the Board of Directors of the Company who is not an Acquiring
Person or a nominee or representative of an Acquiring Person or of any affiliate
or associate of an Acquiring Person and any successor to a Continuing Director
who was recommended for election or elected to succeed a Continuing Director by
a majority of the Continuing Directors then on the Board of Directors of the
Company.
For purposes of this SECTION 10(C) of this Agreement the term
"EXECUTIVE'S ANNUAL COMPENSATION" shall mean (i) the sum of (A) the Executive's
base salary set forth in Section I and
-4-
(B) any bonus compensation to which Executive would have been entitled if
Executive continued to be employed under this Agreement to the end of 1996,
PROVIDED that if the Executive's base salary or bonuses compensation is
increased after 1996 the term shall mean the higher of the Executive annual
salary immediately prior to such change or the sum of (a) the base salary in
effect at the time of termination and (b) any bonus compensation to which
Executive would have been entitled if Executive had continued to be employed
under this Agreement to the end of the Company's fiscal year in which his
employment terminated.
(d) WITH GOOD REASON FOLLOWING AN APPROVED CHANGE IN CONTROL. In the
event of termination of this Agreement by Executive with Good Reason within one
(1) year after an Approved Change in Control, the Company shall pay Executive,
in a lump sum payment within thirty (30) days after termination under this
SECTION 10(C), the sum of (A) the amount described in Section 10(A) of this
Agreement (other than the payments to be made in case of termination by death),
(B) the amount equal to four (4x) times the sum of (i) Executive's annual base
salary in effect at the time of termination, and (ii) any bonus compensation to
which Executive would have been entitled if Executive had remained as an
employee under this Agreement to the end of the Company's fiscal year in which
his employment terminated, and the Company shall continue during the Term all of
the benefits and perquisites set forth in Section 5, notwithstanding the fact
that Executive may no longer be an employee eligible to participate in one or
more of the employee benefit plans maintained by the Company.
(e) DISABILITY. In the event of termination of this Agreement by reason
of disability, the Company shall continue to pay Executive's base salary at the
time of such termination for the remainder of the Term, reduced by the maximum
amount of salary which may be insured under the Company's Long Term Disability
Plan at the time of disability.
SECTION 11. EXCISE TAXES. In the event that Executive shall have
imposed upon him the tax which is imposed by Section 4999 of the Internal
Revenue Code of 1986, as amended (the "CODE"), or by any successor provision, by
reason of any payment or benefit which Executive has received under this
Agreement, the Company shall pay as additional compensation to Executive an
amount equal to the amount of the tax imposed by Code Section 4999 (the "SPECIAL
TAX PAYMENT") as a result of the receipt of such payment, or benefit; provided
that the Special Tax Payment shall NOT be increased to account for excise or
other tax imposed as a result of the making of the Special Tax Payment.
SECTION 12. ACCELERATION AND EXPIRATION OF OPTIONS. Any options or
warrants to purchase capital stock of the Company (collectively, the
"OPTIONS") granted by the Company to Executive that have not yet become
exercisable shall become exercisable upon the earliest to occur of (a) the
termination of Executive's employment as a result of Executive's death or
disability; (b) the termination by Executive with Good Reason; or (c) the
termination by Executive after a Change in Control (other than an Approved
Change in Control). Notwithstanding the foregoing, all Options, whether
currently exercisable or not, shall expire and cease to be exercisable as
follows:
(a) if the Company terminates Executive's employment for
Cause, immediately upon the effective date of such termination;
-5-
(b) if Executive terminates Executive's employment with the
Company other than for Good Reason, a Change in Control, death, or
disability, immediately upon the effective date of such termination;
(c) if Executive terminates Executive's employment with the
Company with Good Reason or after a Change in Control (other than an
Approved Change in Control), ninety (90) days after the effective date
of such termination (but in no event later than the date the Term would
expire without giving effect to any automatic renewal).
(d) if Executive dies while employed by the Company, six (6)
calendar months after Executive's death (but in no event later than the
date the Term would expire without giving effect to any automatic
renewal); and
(e) if Executive's employment is terminated as a result of
disability, six (6) calendar months after the effective date of such
termination (but in no event later than the date the Term would expire
without giving effect to any automatic renewal).
SECTION 13. NO MITIGATION; NO OFFSET. Executive shall be under no
obligation to mitigate damages or the amount of any payment provided for under
this Agreement by seeking other employment or otherwise, and there shall be no
offset against amounts due Executive under this Agreement on account of any
remuneration attributable to any subsequent employment that Executive may
obtain.
SECTION 14. DISCLOSURE AND ASSIGNMENT OF INTELLECTUAL PROPERTY.
(a) Executive agrees that the Company, and its successors and
assigns shall own all right, title and interest throughout the world in
and to all research, information, inventions, designs, procedures,
developments, discoveries, improvements, patents and applications
therefor, trademarks and applications therefor, copyrights and
applications therefor, trade secrets, drawings, plans, systems,
methods, specifications, and all other manufacturing, engineering,
technical, research and development data and know-how (herein sometimes
"INTELLECTUAL PROPERTY") made, conceived, developed and/or acquired by
him solely or jointly with others during the period of his employment
with the Company or within one year thereafter, which relate to the
manufacture, production or processing of any products developed or sold
by the Company during the term of this Agreement or which are within
the scope of or usable in connection with the Company's business as it
may, from time to time, hereafter be conducted or proposed to be
conducted, whether or not made during my regular working hours and
whether or not made on the Company's premises.
(b) Executive agrees that any such Intellectual Property shall
constitute a work made for hire under the copyright laws of the United
States and, to the extent any such Intellectual Property shall be
determined not to be a work made for hire, Executive hereby assigns,
and, to the extent any such assignment cannot be made at the present
time, Executive hereby agrees to assign, to the Company all of my
right, title and interest throughout the world,
-6-
including, without limitation, copyright, patent and trade secret
rights, in and to the Intellectual Property, together with Executive's
right to file for and/or own wholly without restriction United States
and foreign patents, trademarks and copyrights with respect thereto.
Executive specifically agrees and acknowledges that the foregoing
assignment covers all results, outputs and products of his work for the
Company prior to January 1, 1997, whether as an employee or as a
consultant, and all related copyrights, patents and other proprietary
rights, and that all such results, outputs and products shall be
Intellectual Property hereunder and the sole property of the Company
hereafter.
(c) Executive agrees to execute all appropriate patent
applications securing all United States and foreign patents on all
Intellectual Property, and to do, execute and deliver any and all acts
and instruments that may be necessary or proper to vest all
Intellectual Property in the Company or its nominee or designee and to
enable the Company, or its nominee or designee, to obtain all such
patents; and Executive agrees to render to the Company, or its nominee
or designee, all such assistance as it may require in the prosecution
of all such patent applications and applications for the re-issue of
such patents, and in the prosecution or defense of all interferences
which may be declared involving any of said patent applications or
patents, but the expense of all such assignments and patent
applications, or all other proceedings referred to herein above, shall
be borne by the Company. Executive shall be entitled to fair and
reasonable compensation for any such assistance requested by the
Company or its nominee or designee and furnished by him after the
termination of his employment. Executive shall make and maintain
adequate and current written records of all Intellectual Property, and
Executive shall disclose all Intellectual Property promptly, fully and
in writing to the Company immediately upon development of the same and
at any time upon request.
SECTION 15. CONFIDENTIALITY. Executive shall not, either during the
period of his employment with the Company or thereafter, reveal or disclose to
any person outside the Company or use for his own benefit, without the Company's
specific written authorization, whether by private communication or by public
address or publication or otherwise, any Confidential Information, as
hereinafter defined. The term "CONFIDENTIAL INFORMATION" as used throughout this
Agreement shall mean all trade secrets, proprietary information and other data
or information (and any tangible evidence, record or representation thereof),
whether prepared, conceived or developed by an employee of the Company or
received by the Company from an outside source, which is in the possession of
the Company (whether or not the property of the Company), which in any way
relates to the present or future business of the Company, which is maintained in
confidence by the Company, or which might permit the Company or its customers to
obtain a competitive advantage over competitors who do not have access to such
trade secrets, proprietary information, or other data or information. All
originals and copies of any of the foregoing, relating to the business of the
Company, however and whenever produced, shall be the sole property of the
Company, not to be removed from the premises or custody of the Company without
in each instance first obtaining written consent or authorization of the
Company. Upon the termination of Executive's employment in any manner or for any
reason, Executive shall promptly surrender to the Company all copies of any of
the foregoing, together with any other documents, materials, data, information
and equipment belonging to or relating to the Company's business and in his
possession, custody or control, and Executive shall not thereafter retain or
-7-
deliver to any other person, any of the foregoing or any sunnnary or memorandum
thereof.
SECTION 16 .RESTRICTION. The Company has invested and may in the future
be required to invest substantial sums of money, directly or indirectly, to
continue and expand the business heretofore conducted by it and in connection
therewith, and as Executive recognizes that the Company would be substantially
injured by Executive disclosing to others, or by Executive using for his own
benefit, any Intellectual Property or any of the other types of information
referred to in Section 15 as Confidential Information, Executive agrees that
during the period of his employment hereunder and for a period ending
twenty-four (24) months after the term of this Agreement:
(a) Neither he nor any member of his family will be
interested, directly or indirectly, as an investor in any other business or
enterprise similar to that of the Company or in competition with the Company
(except as an investor in securities listed on a national securities exchange or
actively traded over the counter; and
(b) He will not, directly or indirectly, for his own account
or as employee, officer, director, partner, joint venturer or otherwise, engage
within the United States or Canada, in any phase of the business of
manufacturing, distributing or selling of lasers for use in medical or cosmetic
procedures.
(c) Executive shall not solicit, induce, attempt to hire, or
hire any employee of the Company (or any other person who may have been employed
by the Company during the term of his employment with the Company), or assist in
such hiring by any other person or business entity or encourage any such
employee to terminate his or her employment with the Company.
Executive and the Company are of the belief that the period of time,
the geographic area and the range of activities limited by this SECTION 16 are
reasonable, in view of the nature of the business in which the Company is
engaged and proposes to engage, the state of its product development and
Executive's knowledge of this business. However, if such period, or range of
activities area should be adjudged unreasonable in any judicial proceeding, then
the period of time shall be reduced by such number of months, such area shall be
reduced by elimination of such portion of such area, and/or such range of
activities shall be reduced by elimination of such activities, as are deemed
unreasonable, so that this covenant may be enforced in such area and during such
period of time as is adjudged to be reasonable.
SECTION 17. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been given when delivered or
three (3) days after mailing if mailed by first- class, registered or certified
mail, postage prepaid, addressed (a) if to Executive, at the address set forth
below his name on the signature page hereof, or to such other person(s) or
addresses) as Executive shall have furnished to the Company in writing; and (b)
if to the Company, at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇. ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, with a copy to ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq. or to such other person(s) or
addresses) as the Company shall have furnished to Executive in writing.
-8-
SECTION 18. ASSIGNABILITY. In the event that the Company shall be
merged with, or consolidated into, any other corporation, or in the event that
it shall sell and transfer substantially all of its assets to another
corporation, the terms of this Agreement shall inure to the benefit of, and be
assumed by, the corporation resulting from such merger or consolidation, or to
which the Company's assets shall be sold and transferred. This Agreement shall
not be assignable by Executive, but it shall be binding upon, and shall inure to
the benefit of, his heirs, executors, administrators and legal representatives.
SECTION 19. ENTIRE AGREEMENT. This Agreement contains the entire
agreement between the Company and Executive with respect to the subject matter
hereof and there have been no oral or other agreements of any kind whatsoever as
a condition precedent or inducement to the signing of this Agreement or
otherwise concerning this Agreement or the subject matter hereof. This Agreement
supersedes the Employment Agreement dated January 1, 1997 by and between the
Executive and the Company.
SECTION 20 .EXPENSES. Each party shall pay its own expenses incident to
the performance or enforcement of this Agreement, including all fees and
expenses of its counsel for all activities of such counsel undertaken pursuant
to this Agreement, except as otherwise herein specifically provided.
SECTION 21. EQUITABLE RELIEF. Executive recognizes and agrees that the
Company's remedy at law for any breach of the provisions of SECTIONS 14, 15 or
16 hereof would be inadequate, and he agrees that for breach of such provisions,
the Company shall, in addition to such other remedies as may be available to it
at law or in equity or as provided in this Agreement, be entitled to injunctive
relief and to enforce its rights by an action for specific performance to the
extent permitted by law. Should Executive engage in any activities prohibited by
this Agreement, he agrees to pay over to the Company all compensation,
remunerations or moneys or property of any sort received in connection with such
activities; such payment shall not impair any rights or remedies of the Company
or obligations or liabilities of Executive which such parties may have under
this Agreement or applicable law.
SECTION 22. WAIVERS AND FURTHER AGREEMENTS. Any waiver of any terms or
conditions of this Agreement shall not operate as a waiver of any other breach
of such terms or conditions or any other term or condition, nor shall any
failure to enforce any provision hereof operate as a waiver of such provision or
of any other provision hereof; PROVIDED, HOWEVER, THAT no such written waiver,
unless it, by its own terms, explicitly provides to the contrary, shall be
construed to effect a continuing waiver of the provision being waived and no
such waiver in any instance shall constitute a waiver in any other instance or
for any other purpose or impair the right of the party against whom such waiver
is claimed in all other instances or for all other purposes to require full
compliance with such provision. Each of the parties hereto agrees to execute all
such further instruments and documents and to take all such further action as
the other party may reasonably require in order to effectuate the terms and
purposes of this Agreement.
-9-
SECTION 23. AMENDMENTS. This Agreement may not be amended, nor shall
any waiver, change, modification, consent or discharge be effected except by an
instrument in writing executed by or on behalf of the party against whom
enforcement of any waiver, change, modification, consent or discharge is sought.
SECTION- 24. SEVERABILITY. If any provision of this Agreement shall be
held or deemed to be, or shall in fact be, invalid, inoperative or unenforceable
as applied to any particular case in any jurisdiction or jurisdictions, or in
all jurisdictions or in all cases, because of the conflicting of any provision
with any constitution or statute or rule of public policy or for any other
reason, such circumstance shall not have the effect of rendering the provision
or provisions in question, invalid, inoperative or unenforceable in any other
jurisdiction or in any other case or circumstance or of rendering any other
provision or provisions herein contained invalid, inoperative or unenforceable
to the extent that such other provisions are not themselves actually in conflict
with such constitution, statute or rule of public policy, but this Agreement
shall be reformed and construed in any such jurisdiction or case as if such
invalid, inoperative or unenforceable provision had never been contained herein
and such provision reformed so that it would be valid, operative and enforceable
to the maximum extent permitted in such jurisdiction or in such case.
SECTION 25. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument, and in pleading or
proving any provision of this Agreement, it shall not be necessary to produce
more than one of such counterparts.
SECTION 26. SECTION HEADINGS. The headings contained in this Agreement
are for reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
SECTION 27. GENERAL PROVISIONS.
(a) Executive further agrees that his obligations under SECTIONS 14, 15
and 16 of this Agreement shall be binding upon him irrespective of the duration
of his employment by the Company, the reasons for any cessation of his
employment by the Company, or the amount of his compensation and shall survive
the termination of this Agreement (whether such termination is by the Company,
by Executive, upon expiration of this Agreement or otherwise).
(b) Executive represents and warrants to the Company that he is not now
under any obligations to any person, firm or corporation, and has no other
interest which is inconsistent or in conflict with this Agreement, or which
would prevent, limit or impair, in any way, the performance by him of any of the
covenants or his duties in his said employment.
SECTION 28. GENDER. Whenever used herein, the singular number shall
include the plural, the plural shall include the singular, and the use of any
gender shall include all genders.
-10-
SECTION 92. GOVERNING LAW. This Agreement shall be governed by and
construed and enforced in accordance with the law (other than the law governing
conflict of law questions) of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the parties have executed or caused to be executed
this Agreement as of the date first above written.
PALOMAR MEDICAL TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Executive Officer
BY PLACING MY SIGNATURE HEREUNDER, I ACKNOWLEDGE THAT I HAVE READ ALL
THE PROVISIONS OF THIS AGREEMENT AND THAT I AGREE TO ALL OF ITS TERMS.
EXECUTIVE:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
Notice Address:
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
------------------
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
------------------