Attached files
Exhibit 10.1
AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is made
this 30th day of April, 2010 by and between ARIAD Pharmaceuticals, Inc., a
Delaware corporation (the "Company"), and Harvey J. Berger, M.D. (the
"Employee").
WHEREAS, the Company and the Employee entered into that certain Employment
Agreement dated as of January 1, 1992, as amended as of April 19, 1994, June 30,
1994, January 1, 1997, September 2, 2003, January 1, 2006, April 27, 2007,
October 14, 2008 and December 29, 2008 (as so amended, the "Employment
Agreement") which they wish to amend and restate in its entirety as set forth in
this Agreement, pursuant to which the Employee will be employed by the Company
in accordance with the terms and conditions stated below.
NOW, THEREFORE, for good and valuable consideration, the sufficiency of
which is acknowledged, the parties hereto agree as follows:
1. Employment, Duties and Acceptance.
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1.1 The Company hereby employs the Employee, for the Term (as hereinafter
defined), to render full-time services to the Company as Chief Executive Officer
("CEO"), and to perform such duties commensurate with such office as he shall
reasonably be directed by the Board of Directors (the "Board") of the Company to
perform, which duties shall be consistent with the provisions of the By-laws in
effect on the date hereof that relate to the duties of the CEO.
1.2 The Employee hereby confirms his acceptance of such employment and
agrees to render the services described above. The Employee further agrees to
accept election and to serve during all or any part of the Term as chairman
("Chairman") of the Board, without any compensation therefor other than that
specified in this Agreement, if elected to such position by the shareholders of
the Company or by the Board, as the case may be. The Company shall use its best
efforts to cause the Employee to be elected as a director and as Chairman and
shall include him in the management slate for election as a director at every
shareholders meeting at which his term as a director would otherwise expire.
1.3 The principal place of employment of the Employee hereunder shall at
all times during the Term be in the greater Boston, Massachusetts area, or other
locations acceptable to the Employee, in his sole discretion.
1.4 Notwithstanding anything to the contrary herein, although the Employee
shall provide services as a full time employee, it is understood that the
Employee may (a) have academic appointments; (b) participate in professional
activities and (c) be a member of the Scientific/ Medical Advisory Board, the
Board of Directors, and/or act as a consultant to other companies that do not
directly compete with the Company (collectively, "Permitted Activities);
provided, however, that such Permitted Activities do not interfere with the
Employee's duties to the Company.
2. Term of Employment.
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The term of the Employee's employment under this Agreement is extended
until December 31, 2013. The term of this Agreement shall be automatically
renewed for successive three-year terms unless, at least 90 days prior to
December 31, 2013 or the then current succeeding three-year extended term of
this Agreement, the Company or Employee has notified the other that the term
hereunder shall terminate upon its expiration date. The term of this Agreement,
as it may be extended from time to time thereafter under this Section 2, is
hereinafter referred to as (the "Term"). Notwithstanding the foregoing, if a
Change in Control occurs during the Term, the Term shall end on the later of the
last day of the then three-year term or one day after the second anniversary of
the date on which such Change in Control occurs. In all events hereunder, the
Employee's employment is subject to earlier termination under either Section 4
or Section 5 hereof, and upon such earlier termination the Term shall be deemed
to have ended.
3. Compensation.
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3.1 As full compensation for all services to be rendered pursuant to this
Agreement, the Company agrees to pay the Employee, effective January 1, 2010, an
annual base salary of $632,000. The Employee's base salary shall be redetermined
annually by the Board. The base salary in effect at any given time is referred
to herein as (the "Salary"). The Salary shall be payable in equal semi-monthly
installments, less such deductions or amounts to be withheld as shall be
required by applicable law and regulations.
3.2 The Employee's target cash bonus is equal to 50% of his Salary. The
actual amount of the cash bonus shall be determined annually by the Board and
may be greater or lower than the target cash bonus. Any cash bonus payable under
this Section 3.2 shall be paid to the Employee no later than March 15th
following the year in which it is earned.
3.3 The Company shall pay or reimburse the Employee for all reasonable
expenses actually incurred or paid by him during the Term in the performance of
his services under this Agreement, upon presentation of expense statements or
vouchers or such other supporting information as it may require. Any
reimbursements or payments under this Section 3.3 shall be made within thirty
(30) days after presentation by the Employee of such expense statements or other
supporting information, but in no event will the reimbursement payment be made
later than the end of the calendar year following the calendar year in which the
expense is incurred.
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3.4 The Employee shall be eligible under any incentive plan, stock option
plan, stock award plan, bonus, participation or extra compensation plan,
pension, group insurance or other so-called "fringe" benefits which the Company
provides for its senior executives on terms no less favorable than those
provided to other senior executives. In the event of a consummation of a Change
in Control, all stock, stock options, stock awards and similar equity rights
granted to the Employee by the Company shall immediately vest and remain fully
exercisable through their original term with all rights. Notwithstanding the
foregoing, with respect to any awards that are subject to Section 409A of the
Internal Revenue Code of 1986, as amended (the "Code"), the payment or
settlement of such awards shall only be made upon a Change in Control or other
event described above that also constitutes a change in the ownership or a
change in the effective control of the Company, or a change in the ownership of
a substantial portion of the assets of the Company, as each is defined under
Section 409A of the Code and the regulations thereunder (a "Qualifying Change in
Control"). If an event described above does not constitute a Qualifying Change
in Control, any awards subject to Section 409A of the Code shall continue to
vest upon the occurrence of such event but shall not be settled or paid until
the original settlement or payment date specified in such award.
4. Termination by the Company.
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4.1 The Company may terminate the Employee's employment if any one or more
of the following shall occur:
(a) The Employee shall die during the Term; provided, however, that the
Employee's legal representatives shall be entitled to receive his Salary through
the last day of the month in which his death occurs.
(b) The Employee shall become physically or mentally disabled so that
he is unable substantially to perform his services hereunder for (i) a period of
180 consecutive days, or (ii) for shorter periods aggregating 180 days during
any twelve month period. Notwithstanding such disability the Company shall
continue to pay the Employee his Salary through the date of such termination.
(c) The Employee acts, or fails to act, in a manner that provides Cause
for termination. For purposes of this Agreement, the term "Cause" means (i) the
willful neglect by the Employee of his duties hereunder; provided such neglect
remains uncured for a period of 30 days after written notice describing the same
is given to the Employee, (ii) the conviction of the Employee of any felony
involving moral turpitude, or (iii) any act of fraud or embezzlement involving
the company or any of its Affiliates.
4.2 All determinations of Cause, termination or nonrenewal pursuant to
Section 4 herein shall require at least a two-thirds vote of the entire Board.
5. Termination by the Employee.
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The Employee may terminate his employment on written notice to the Company
if any one or more of the following shall occur (each a "Good Reason"):
(a) loss of any material duties or authority by the Employee and such
loss continues for 30 days after such loss first occurs;
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(b) a material breach of the terms of this Agreement by the Company and
such breach continues uncured for 30 days after notice of such breach is first
given; provided, however, it shall constitute Good Reason if such breach is for
the payment of money and continues uncured for ten days after notice of such
breach is given;
(c) the Company shall make a general assignment for benefit of creditors;
or any proceeding shall be instituted by the Company seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking entry of an order for relief or the appointment of a
receiver, trustee, or other similar official for it or for any substantial part
of its property or the Company shall take any corporate action to authorize any
of the actions set forth above in this subsection 5(c);
(d) an involuntary petition shall be filed or an action or proceeding
otherwise commenced against the Company seeking reorganization, arrangement or
readjustment of the Company's debts or for any other relief under the Federal
Bankruptcy Code, as amended, or under any other bankruptcy or insolvency act or
law, state or federal, now or hereafter existing and shall remain undismissed or
unstayed a period of 30 days;
(e) a receiver, assignee, liquidator, trustee or similar officer for the
Company or for all or any part of its property shall be appointed involuntarily;
(f) a material breach by the Company of any other material agreement with
the Employee and such breach continues for 30 days after notice of such breach
is first given; provided, however, it shall constitute Good Reason if such
breach is for the payment of money and continues uncured for ten days after
notice of such breach is first given;
(g) a Change in Control occurs and the Employee is not the CEO of the
surviving company reporting to the Board; or
(h) a Prohibited Event (as defined in Section 14) occurs; provided that
the Employee gives notice of termination within 90 days after such occurrence
and such Prohibited Event is not remedied within 30 days of such notice.
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6. Severance.
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If (a) the Company terminates the Employee's employment without Cause or
gives notice of non-renewal pursuant to Section 2 or (b) the Employee terminates
his employment pursuant to Section 5 for Good Reasonthen: (1) the Company shall
pay the Employee a lump sum cash payment (the "Severance Payment") equal to the
sum of (x) three times the Employee's Salary and (y) three times the Employee's
bonus amount paid for the immediately preceding fiscal year; provided, however,
that such bonus amount shall not be less than 50% of the Employee's Salary for
such prior fiscal year and (2) all stock options and stock awards (and similar
equity rights) shall vest and become exercisable immediately prior to
termination and remain exercisable through their original terms with all rights.
The Severance Payment shall be made as soon as practicable but no later than 30
days after the Employee's termination of employment. After termination of
employment for any reason other than death of the Employee, the Company shall
continue to provide all benefits subject to COBRA at its expense for the maximum
required COBRA period. Notwithstanding the above provisions, if the Employee is
entitled to severance solely by reason of non-renewal by the Company pursuant to
Section 2, the Severance Payment shall be limited to two times the Employee's
Salary. The parties intend that the provision of continued COBRA benefits shall
not constitute a "deferral of compensation" under Section 1.409A-1(b) of the
Final Regulations under Section 409A of the Code. For the avoidance of doubt, a
termination of this Agreement triggering rights under this Section 6 to receive
the Severance Payment and any other form of compensation or benefits
constituting a "deferral of compensation" subject to Section 409A shall only
occur after the Employee has incurred a "separation from service" within the
meaning of Section 409A and Section 1.409A-1(h) of the Final Regulations (after
giving effect to the presumption set forth therein). Notwithstanding the payment
schedules contained elsewhere in this Section 6 or Section 7, to the extent
necessary to comply with the requirements of Section 409A of the Code, if the
Employee is a "specified employee" (as defined below) at the time of his
termination of employment, any payment that constitutes nonqualified deferred
compensation subject to Section 409A of the Code shall not be made before the
date that is six (6) months and one (1) day after the date of the Employee's
separation from service (or, if earlier, the date of his death). For purposes of
the preceding sentence, a "specified employee" shall have the meaning set forth
in Section 1.409A-1(i) of the Final Regulations under Section 409A of the Code.
Any payments or settlement that are so delayed will be paid in full with
interest at the short-term applicable federal rate (determined as of the date of
a termination described in this Section 6) within thirty (30) days after the end
of the six (6) month period described in the preceding sentence.
7. Other Benefits.
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In addition to all other benefits contained herein, the Employee shall be
entitled to:
(a) Payment of medical malpractice insurance premiums for coverage
consistent with the Employee's activities.
(b) Car allowance of $750 per month.
(c) Paid time offof five (5) weeks per year taken in accordance with the
paid time-off policy of the Company during the Term.
(d) A lump sum cash payment upon the Employee's separation from service
equal to nine (9) months of the Employee's Salary as in effect immediately prior
to separation, so long as (i) the Employee acknowledges that this payment
satisfies all obligations under the Company's Sabbatical Policy, and (ii) the
employment termination is not for Cause and the Employee is in good standing
with the Company upon separation from service. Such payment shall be made within
thirty (30) days of the Employee's separation from service.
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8. Confidentiality.
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8.1 The Employee acknowledges that, during the course of performing his
services hereunder, the Company will be disclosing information to the Employee
related to the Company's Field of Interest, Inventions, projects and business
plans, as well as other information (collectively, "Confidential Information").
The Employee acknowledges that the Company's business is extremely competitive,
dependent in part upon the maintenance of secrecy, and that any disclosure of
the Confidential Information would result in serious harm to the Company.
8.2 The Employee agrees that the Confidential Information only shall be
used by the Employee in connection with his activities hereunder as an employee
of the Company, and shall not be used in any way that is detrimental to the
Company.
8.3 The Employee agrees not to disclose, directly or indirectly, the
Confidential Information to any third person or entity, other than
representatives or agents of the Company. The Employee shall treat all such
information as confidential and proprietary property of the Company.
8.4 The term "Confidential Information" does not include information that
(a) is or becomes generally available to the public other than by disclosure in
violation of this Agreement, (b) was within the relevant party's possession
prior to being furnished to such party, (c) becomes available to the relevant
party on a non confidential basis or (d) was independently developed by the
relevant party without reference to the information provided by the Company.
8.5 The Employee may disclose any Confidential Information that is required
to be disclosed by law, government regulation or court order. If disclosure is
required, the Employee shall give the Company advance notice so that the Company
may seek a protective order or take other action reasonable in light of the
circumstances.
8.6 Upon termination of this Agreement, the Employee shall promptly return
to the Company all materials containing Confidential Information, as well as
data, records, reports and other property, furnished by the Company to the
Employee or produced by the Employee in connection with services rendered
hereunder.
8.7 Notwithstanding such return or any other provision of this Agreement,
the Employee shall continue to be bound by the terms of the confidentiality
provisions contained in this Section 8 for a period of three years after the
termination of this Agreement.
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9. Inventions Discovered by the Employee while Performing Services
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Hereunder.
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During the Term, the Employee shall promptly disclose to the Company any
invention, improvement, discovery, process, formula, or method or other
intellectual property, whether or not patentable, whether or not copyrightable
(collectively, "Inventions") made, conceived or first reduced to practice by the
Employee, either alone or jointly with others, while performing service
hereunder. The Employee hereby assigns .to the Company all of his right, title
and interest in and to any such inventions. During and after the Term, the
Employee shall execute any documents necessary to perfect the assignment of such
Inventions to the Company and to enable the Company to apply for, obtain, and
enforce patents and copyrights in any and all countries on such Inventions. The
Employee hereby irrevocably designates the General Counsel to the Company as his
agent and attorney-in-fact to execute and file any such document and to do all
lawful acts necessary to apply for and obtain patents and copyrights and to
enforce the Company's rights under this section. This Section 9 shall survive
the termination of this Agreement.
10. Non-Competition.
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During the Term and, if terminated by the Company for Cause, for a period
of one year following the date of termination, the Employee shall not (a)
provide any services, directly or indirectly, to any other business or
commercial entity engaged primarily in the Company's Field of Interest or (b)
participate in the formation of any business or commercial entity engaged
primarily in the Company's Field of Interest; provided, however, that nothing
contained in this Section 10 shall be deemed to prohibit the Employee from
acquiring, solely as an investment, shares of capital stock (or other interests)
of any corporation (or other entity). This Section 10 shall be subject to
written waivers that may be obtained by the Employee from the Company. A request
for such a waiver shall not be unreasonably withheld and shall be acted upon
within ten business days.
10.1 If the Employee commits a breach, or threatens to commit a breach, of
any of the provisions of this Section 10, the Company shall have the right and
remedy to have the provisions of this Agreement specifically enforced by any
court having equity jurisdiction, it being acknowledged and agreed that any such
breach or threatened breach will cause irreparable injury to the Company and
that money damages will not provide an adequate remedy to the Company.
10.2 If any of the covenants contained in Section 8, 9 or 10, or any part
thereof, is hereafter construed to be invalid or unenforceable, the same shall
not affect the remainder of the covenant or covenants, which shall be given full
effect without regard to the invalid portions.
10.3 If any of the covenants contained in Section 8, 9 or 10, or any part
thereof, is held to be unenforceable because of the duration of such provision
or the area covered thereby, the parties agree that the court making such
determination shall have the power to reduce the duration and/or area of such
provision and, in its reduced form, such provision shall then be enforceable.
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10.4 The parties hereto intend to and hereby confer jurisdiction to enforce
the covenants contained in Sections 8, 9 and 10 upon the courts of any state
within the geographical scope of such covenants. In the event that the courts of
any one or more of such states shall hold any such covenant wholly unenforceable
by reason of the breadth of such scope or otherwise, it is the intention of the
parties hereto that such determination not bar or in any way affect the
Company's right to the relief provided above in the courts of any other states
within the geographical scope of such covenants, as to breaches of such
covenants in such other respective jurisdictions, the above covenants as they
relate to each state being, for this purpose, severable into diverse and
independent covenants.
11. Indemnification.
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The Company shall indemnify the Employee, to the maximum extent permitted
by applicable law, against all costs, charges and expenses incurred or sustained
by him in connection with any action, suit or proceeding to which he may be made
a party by reason of his being an officer, director or employee of the Company
or of any subsidiary or Affiliate of the Company. The Company shall provide, at
its expense, Directors and Officers insurance for the Employee in amounts
reasonably satisfactory to the Employee to the extent available at reasonable
rates, which determination shall be made by the Board. It is intended that the
benefits described in this Section 11 qualify as an "indemnification" or
"liability insurance plan" under Section 1.409A-1(b)(10) of the Final
Regulations under Section 409A of the Code.
12. Excise Tax.
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If any payments made to or in respect of the Employee this Agreement, or
otherwise in respect of his employment by the Company; become subject to the
excise tax described in Code Section 4999, the Company shall make a special
payment to him sufficient, on an after-tax basis (taking into account federal,
state and local taxes and related interest and penalties), to put him in the
same position as would have been the case had no such excise taxes been
applicable to any payments or benefits provided in this Agreement or otherwise
in respect of the Employee's employment by the Company. Any payment required to
be paid under this Section 12 shall be paid no later than the end of the
Employee's taxable year next following the Employee's taxable year in which the
Employee pays such excise tax to which the payment relates to the United States
Internal Revenue Service or other applicable taxing authority.
13. No Mitigation.
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The Employee shall not be required to mitigate the amount of any payment
provided for hereunder by seeking other employment or otherwise, nor shall the
amount of any payment provided for hereunder be reduced by any compensation
earned by the Employee as the result of employment by another employer after the
date of termination of his employment by the Company.
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14. Prohibited Events.
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The occurrence of any of the following events shall constitute a
"Prohibited Event":
(a) The Employee is not elected to the Board of Directors, named as
Chairman and designated CEO of the Company.
(b) The CEO is not the highest ranking executive officer of the Company
with the power to appoint and remove all other employees of the Company.
(c) A person other than the Employee or a person designated by the Employee
is elected President of the Company.
(d) The retention of any senior executive officer by the Company, or an
offer to pay compensation to any senior executive of the Company that in either
case is unacceptable to the Employee, in his reasonable judgment.
15. Definitions.
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As used herein the following terms have the following meaning:
(a) "Affiliate" means and includes any person, corporation or other entity
controlling, controlled by or under common control with the corporation in
question.
(b) "Change in Control" means the occurrence of any of the following events
(without the consent of the Employee):
(i) Any corporation, person or other entity makes a tender or exchange
offer for shares of the Company's Common Stock pursuant to which such
corporation, person or other entity acquires 40% or more of the issued and
outstanding shares of the Company's Common Stock;
(ii) (A) A merger or consolidation of the Company whether or not approved
by the Board of Directors, 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 or the parent of such
corporation) more than 50% of the total voting power represented by the voting
securities of the Company or such surviving entity or parent of such
corporation, as the case may be, outstanding immediately after such merger or
consolidation; or (B) the sale or disposition by the Company of all or
substantially all of the Company's assets; or
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(iii) Any person within the meaning of Section 3(a)(9) or Section 13(d)(3)
of the Securities Exchange Act of 1934 acquires more than 40% of the Company's
issued and outstanding voting securities.
(c) "Company's Field of Interest" means the discovery, development,
manufacture, distribution, and commercialization of any pharmaceutical product
that is based on or involves (a) intervention in cell signaling, (b) cancer
therapy, or (c) gene and cell therapy.
16. Arbitration.
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Any dispute arising under or in any way related to this Agreement shall be
resolved by arbitration in accordance with the following provisions:
(a) Any controversy or claim arising out of or relating to this employment
or the termination of that employment (including, without limitation,any claims
of unlawful employment discrimination whether based on age or otherwise) shall,
to the fullest extent permitted by law, be settled by arbitration in any forum
and form agreed upon by the parties or, in the absence of such an agreement,
under the auspices of the American Arbitration Association ("AAA") in Boston,
Massachusetts in accordance with the Employment Dispute Resolution Rules of the
AAA, including, but not limited to, the rules and procedures applicable to the
selection of arbitrators; provided, however, that such procedures are consistent
with the intent of the parties that a decision with respect to the dispute
(including counterclaims) be rendered no later than 120 business days after
service of the dispute notice.
(b) The arbitrator's decision shall be in writing, and shall include
findings of fact and a concise explanation of the reasons for the decision. The
arbitrator's fees and expenses shall be borne by one or both of the parties in
accordance with the direction of the arbitrator, who shall be guided in such
determination by the results of the arbitration. If any party refuses to appear
before the arbitrator, the arbitrator shall decide the matter as by default
against the non-appearing party, and such decision shall be final, binding and
non-appealable to the same extent as a decision rendered with the full
participation of such party. If any party causes unnecessary delay or engages in
any other misconduct in the course of the proceeding, the arbitrator may take
such action into account when rendering his final decision. The arbitrator's
decision shall be final, binding and non-appealable, and may be entered and
enforced as a judgment by any court of competent jurisdiction. The arbitrator
shall consider and determine only matters properly subject to arbitration.
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(c) During the pendency of any arbitration or any dispute not yet submitted
for arbitration, the Company shall not be entitled to any offset against
payments, stock awards or other benefits due to the Employee under this
Agreement.
17. Legal Costs.
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(a) Subject to the provisions of Section 16, if the Employee institutes any
legal action to enforce his rights under, or to recover damages for breach of,
this Agreement, and the Employee prevails, he shall be entitled to recover from
the Company any actual expenses for attorney's fees and disbursements incurred
by him. During the pendency of any litigation, arbitration or other proceeding
the Company shall pay all attorneys' fees, costs and expenses (including
disbursements) as incurred by the Employee based upon, arising out of, or
otherwise in respect of any dispute arising under or in any way related to this
Agreement, subject to the Employee's obligation to repay the same, without
interest, if the Company prevails. If any payment made to or in respect of the
Employee pursuant to this Section becomes subject to any tax, the Company shall
make a special payment to him sufficient, on an after-tax basis (taking into
account federal, state and local taxes and related interest and penalties), to
put him in the same position as would have been the case had such taxes been
applicable to any payments or benefits provided in this subsection.
(b) The Company acknowledges that the Employee's counsel has (i) performed
research for the Company with respect to amendment of this Agreement to bring it
in line with current norms and (ii) represented the Employee in the
renegotiation of this Agreement. Upon rendering of a bill by the Employee's
counsel for legal services rendered under clause (i), the Company will pay it
directly and the Company will also reimburse the Employee for the bill for legal
services rendered under clause (ii).
(c) Any amounts paid by the Company under this Section 17 shall be made
within thirty (30) days after the Employee delivers to the Company reasonable
evidence that the Employee has incurred fees, costs and/or expenses described in
this Section 17 (each, a "Qualifying Expense"), provided that such evidence is
provided not later than one hundred and twenty (120) days following the date
that the Employee incurs a Qualifying Expense. It is agreed to by the parties
hereto that (i) amounts reimbursed under this Section 17 paid during one
calendar year will not affect how much the Company is obligated to pay hereunder
during any subsequent calendar year, (ii) rights to reimbursement shall not
extend past the calendar year immediately following the calendar year in which
the legal action is settled or subject to a final non-appealable decision, as
applicable, and (iii) rights under this Section 17 may not be liquidated or
exchanged for another benefit.
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18. Notices.
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All notices, requests, consents and other communications required or
permitted to be given hereunder shall be in writing and shall be deemed to have
been duly given if sent by private overnight mail service (delivery confirmed by
such service), registered or certified mail (return receipt requested and
received), telecopy (confirmed receipt by return fax from the receiving party)
or delivered personally, as follows (or to such other address as either party
shall designate by notice in writing to the other in accordance herewith):
If to the Company:
ARIAD Pharmaceuticals, Inc.
26 Landsdowne Street
Cambridge, Massachusetts 01239-4234
Attention: Secretary
Telephone: (617) 494-0400
Fax: (617) 494-8144
If to the Employee:
Harvey J. Berger, M.D.
2 Avery Street
Apartment 34E
Boston, Massachusetts 02111
19. General.
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19.1 This Agreement shall be governed by and construed and enforced in
accordance with the laws of the Commonwealth of Massachusetts applicable to
agreements made and to be performed entirely in Massachusetts.
19.2 The Section headings contained herein are for reference purposes only
and shall not in any way affect the meaning or interpretation of this Agreement.
19.3 This Agreement sets forth the entire agreement and understanding of
the parties relating to the subject matter hereof, and supersedes all prior
agreements, arrangements and understandings, written or oral, relating to the
subject matter hereof. No representation, promise or inducement has been made by
either party that is not embodied in this Agreement, and neither party shall be
bound by or liable for any alleged representation, promise or inducement not so
set forth.
19.4 This Agreement and the Employee's rights and obligations hereunder may
not be assigned by the Employee or the Company.
19.5 This Agreement may be amended, modified, superseded, canceled, renewed
or extended, and the terms or covenants hereof may be waived, only by a written
instrument executed by the parties hereto, or in the case of a waiver, by the
party waiving compliance. The failure of a party at any time or times to require
performance of any provision hereof shall in no manner affect the right at a
later time to enforce the same. No waiver by a party of the breach of any term
or covenant contained in this Agreement, whether by conduct or otherwise, in any
one or more waiver of any such breach, or a waiver of the breach of any other
term or covenant contained in this Agreement.
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19.6 The parties intend that the payments and benefits provided for in this
Agreement to either be exempt from Section 409A of the Code or be provided in a
manner that complies with Section 409A of the Code. Notwithstanding anything
contained herein to the contrary, all payments and benefits which are payable
upon a termination of employment hereunder shall be paid or provided only upon
those terminations of employment that constitute a "separation from service"
from the Company within the meaning of Section 409A of the Code (determined
after applying the presumptions set forth in Treas. Reg. Section
1.409A-1(h)(1)).
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
ARIAD PHARMACEUTICALS, INC.
By /s/ Raymond T. Keane
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Name: Raymond T. Keane
Title: Senior Vice President, General
Counsel
/s/ Harvey J. Berger
---------------------------------
Harvey J. Berger, M.D.
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