exv10w11






Exhibit 10.11




Execution Copy




AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT




     This AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT (the “Agreement”) is
effective as of June 16, 2008 (the “Effective Date”), between Clinical Data, Inc. a
Delaware corporation (the “Company”), and Carol Reed, M.D. (the “Executive”).



W I T N E S S E T H:




     WHEREAS, the Executive is currently employed as the Executive Vice President and Chief Medical
Officer of the Company pursuant to an Executive Employment Agreement effective as of May 12, 2006,
between Executive and the Company (the “Prior Agreement”);



     WHEREAS, the Company has offered to continue employing the Executive on the terms set forth
below; and



     WHEREAS, the Executive has agreed to continued employment with the Company on the terms as set
forth below;



     NOW THEREFORE, in consideration of the foregoing, of the mutual promises contained herein and
of other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:



     1. EMPLOYMENT TERM. The Executive’s term of employment under this Agreement shall be
for an initial term commencing on the Effective Date and shall end on June 30, 2009. The term of
this Agreement shall be automatically extended thereafter for successive one (1) year periods
unless, at least ninety (90) days prior to the end of the initial term of this Agreement or the
then current succeeding one-year extended term of this Agreement, the Company or Executive has
notified the other that the term hereunder shall terminate upon its expiration date. The initial
term of this Agreement, as it may be extended from year to year thereafter, is herein referred to
as the “Employment Term.” In all events hereunder, Executive’s employment is subject to
earlier termination pursuant to Section 7 hereof, and upon such earlier termination the Employment
Term shall be deemed to have ended.



     2. POSITION & DUTIES.



     (a) Except as provided in Section 2(b) below, the Executive shall serve as the Company’s
Executive Vice President and Chief Medical Officer during the Employment Term. As such, the
Executive shall have such duties, authorities and responsibilities commensurate with the duties,
authorities and responsibilities of persons in similar capacities in similarly sized companies and
such other duties and responsibilities as the Company’s Board of Directors (the “Board”)
shall designate that are consistent with the Executive’s position.



     (b) During the Employment Term, the Executive shall use her best efforts to perform faithfully
and efficiently the duties and responsibilities assigned to the Executive hereunder and devote all
of the Executive’s business time (excluding periods of vacation and other approved leaves of absence) to the performance of the Executive’s duties with the Company, provided the
foregoing shall not prevent the Executive from participating in charitable, civic, educational,
professional, community or industry affairs or, with prior written approval of the Board, serving



 









 




on the board of directors or advisory boards of other companies. The Executive shall not manage
the Executive’s and the Executive’s family’s personal investments in a manner that creates a
potential business conflict or the appearance thereof. If at any time service on any board of
directors or advisory board would, in the good faith judgment of the Board, conflict with the
Executive’s fiduciary duty to the Company or create any appearance thereof, the Executive shall
promptly resign from such other board of directors or advisory board after written notice of the
conflict is received from the Board.




     (c) The Executive further agrees to serve without additional compensation as an officer and/or
director of any of the Company’s subsidiaries and agrees that any amounts received from any such
corporation may be offset against the amounts due hereunder. In addition, it is agreed that the
Company may assign the Executive to one of its subsidiaries for payroll purposes, but such
assignment shall not relieve the Company of its obligations hereunder.



     3. BASE SALARY. The Company agrees to pay the Executive a base salary (the “Base
Salary”) at an annual rate of $300,000, payable in accordance with the regular payroll
practices of the Company, but not less frequently than monthly. The Executive’s Base Salary shall
be subject to review by the Board (or a committee thereof) and may be increased, but not decreased,
from time to time by the Board. The base salary as determined herein from time to time shall
constitute “Base Salary” for purposes of this Agreement.



     4. BONUSES. The Executive shall be eligible to participate in the Company’s bonus and
other incentive compensation plans and programs for the Company’s senior executives at a level
commensurate with her position for the fiscal year during the Employment Term. The Executive shall
have the opportunity to earn an annual target bonus measured against performance criteria to be
determined by the Board (or a committee thereof) of one hundred percent (100%) of Base Salary.



     5. EQUITY AWARDS. The Executive shall be subject to, and shall comply with, the stock
ownership guidelines of the Company as may be in effect from time to time. If there is a Change in
Control (as defined in the attached Appendix C) or if the Executive’s employment is terminated by
the Company without Cause (as defined in Section 7(c)), or by the Executive for Good Reason (as
defined in Section 7(e)), then all outstanding unvested equity awards granted to the Executive
listed on Appendix D hereto shall become fully vested and the time period that Executive may have
to exercise each such option grant shall be extended to the shorter of (i) three (3) years, or (ii)
the remaining term of the options (the “Extended Exercise Period”). The parties agree that
the attached Appendix D may be modified and updated upon a vote of the Board of Directors, only in
order for the Board to add to Appendix D certain future awards that the Board agrees shall also
qualify for acceleration and the Extended Exercise Period. Upon such a vote of the Board, the
parties shall attach a revised Appendix D to this Agreement, which shall include the additional
option grant(s) that the Board has expressly agreed shall qualify for acceleration and the Extended
Exercise Period, and this Agreement shall not be deemed amended or modified in any other manner as
a result.



     6. EMPLOYEE BENEFITS.



2









 





     (a) BENEFIT PLANS. The Executive shall be entitled to participate in all employee
benefit plans of the Company including, but not limited to, 401(k), profit sharing, medical
coverage, education, or other retirement or welfare benefits that the Company has adopted or may
adopt, maintain or contribute to for the benefit of its senior executives at a level commensurate
with the Executive’s positions, subject to satisfying the applicable eligibility requirements.



     (b) VACATION. The Executive shall be entitled to four (4) weeks of paid vacation per
year, plus any amounts (up to a maximum of three (3) weeks) rolled over from previous years.
Vacation may be taken at such times as the Executive elects with due regard to the needs of the
Company.



     (c) BUSINESS AND ENTERTAINMENT EXPENSES. Upon presentation of appropriate
documentation, the Executive shall be reimbursed in accordance with the Company’s expense
reimbursement policy for all reasonable and necessary business and entertainment expenses incurred
in connection with the performance of the Executive’s duties hereunder.



     (d) LONG TERM DISABLITY INSURANCE. The Company shall procure and maintain a long-term
disability insurance policy with reasonable coverages, which shall include the payment of benefits
equal to at least 60% of the Base Salary during the disability coverage period, and the Company
shall pay the premiums or a portion thereof (as specified hereafter) for such disability insurance
policy up to the cost charged by the insurer to insure a healthy female non-smoker on Executive’s
age. Executive shall be responsible for all taxes resulting from the maintenance of this policy by
the Company.



     (e) INDEMNIFICATION. The Company shall indemnify the Executive to the same extent
that its officers, directors and employees are entitled to indemnification pursuant to the
Company’s Certificate of Incorporation and Bylaws for any acts or omissions by reason of being an
officer or employee of the Company as of the Effective Date.



     (f) CERTAIN AMENDMENTS. Nothing herein shall be construed to prevent the Company from
amending, altering, eliminating or reducing any plans, benefits or programs so long as the
Executive continues to receive compensation and benefits consistent with Sections 3 through 6
hereof.



     7. TERMINATION. The Executive’s employment and the Employment Term shall terminate on
the first of the following to occur:



     (a) DISABILITY. Upon written notice by the Company to the Executive of termination
due to Disability, while the Executive remains Disabled. For purposes of this Agreement,
“Disability” shall be deemed the reason for the termination by the Company of the
Executive’s employment, if, as a result of the Executive incapacity due to physical or mental
illness, the Executive shall have been absent from fully performing her duties with the Company for
a cumulative period of three (3) months, the Company shall have provided a notice of termination
under this Section 7(a), and, within thirty days after such notice being given, the Executive shall
not have returned to the full performance of her duties hereunder.



     (b) DEATH. Automatically on the date of death of the Executive.



3









 





     (c) CAUSE. Immediately upon written notice by the Company to the Executive of a
termination for Cause. “Cause” shall mean (i) the willful failure of the Executive to
render services to the Company in accordance with her assigned duties consistent with this
Agreement, and such failure continues for a period of more than 30 days after written notice has
been provided to the Executive by the Board which itemizes the reasons for such failure of
performance; (ii) reckless misconduct, bad faith or gross negligence of the Executive in
connection with the performance of her assigned duties or breach of the material terms of this
Agreement which results in material loss, damage or injury to the Company or materially and
adversely affects the business activities, reputation, goodwill or image of the Company; (iii) the
conviction of the Executive of any felony or a crime of moral turpitude, either in connection with
the performance of her obligations to the Company or which adversely affects the Executive’s
ability to perform such obligations, or which adversely affects the business activities,
reputation, goodwill or image of the Company; (iv) dishonesty or breach of fiduciary duty, which
results in material loss, damage or injury to the Company or materially and adversely affects the
business activities, reputation, goodwill or image of the Company; (v) the commission by the
Executive of an act of fraud, embezzlement or deliberate disregard of the rules or policies of the
Company which results in material loss, damage or injury to the Company or materially and adversely
affects the business activities, reputation, goodwill or image of the Company; or (vi) the
unauthorized and intentional disclosure by the Executive of any trade secret or confidential
information of the Company or any of its clients or customers, which results in material damage or
injury to the Company, or materially and adversely affects the business activities, reputation,
goodwill or image of the Company or its clients or customers.



     (d) WITHOUT CAUSE. Upon written notice by the Company to the Executive of an
involuntary termination without Cause and other than due to death or Disability.



     (e) GOOD REASON. Upon written notice by the Executive to the Company of a termination
for Good Reason, unless the reasons for any proposed termination for Good Reason are remedied in
all material respects by the Company within 30 days following written notification by the Executive
to the Company, that the Executive intends to terminate the Executive’s employment hereunder for
one of the reasons set forth below. “Good Reason” shall mean, without the Executive’s
express written consent, the occurrence of any of the following events:



          (1) During the Employment Term,



               (A) an adverse change in the Executive’s position as Senior Vice President and Chief Medical
Officer as a result of a material diminution in the Executive’s duties or responsibilities or the
assignment to the Executive of any duties or responsibilities that are inconsistent in any material
respect with the Executive’s position, authority, duties or responsibilities as contemplated by
this Agreement; provided, however, that “Good Reason” shall not exist under this Section 7(e)(1)
solely because (i) the Company’s stock is no longer publicly traded on an established securities
exchange or (ii) the Company has restructured, sold or spun-off any of its businesses, products or
services;



               (B) any material breach of this Agreement by the Company that is adverse to the Executive;



4









 





               (C) the failure of the Company to obtain an agreement from any successor to all or
substantially all of the assets or business of the Company to assume and agree to perform this
Agreement within fifteen (15) days after a merger, consolidation, sale or similar transaction; or



               (D) the Executive’s termination of employment at any time during the thirty-day period
beginning on the last day of the Employment Term, as determined solely for this purpose under
Section 1, following the Company’s notice of nonrenewal.



          (2) Notwithstanding the foregoing, (i) a suspension of the Executive’s title and authority
while on administrative leave due to a reasonable belief that the Executive has engaged in
misconduct, whether or not the suspected misconduct constitutes Cause for employment termination,
shall not be considered “Good Reason”, (ii) an event shall not be considered Good Reason if the
Executive fails to deliver notice of termination for Good Reason specifying such event in detail
within 90 days of her actual knowledge of such event, and (iii) changes to compensation and benefit
plans not specifically targeted to the Executive shall not be considered Good Reason.



     (f) WITHOUT GOOD REASON. The Executive shall provide forty five (45) days’ prior
written notice to the Company of the Executive’s intended termination of employment without Good
Reason (the “Transition Period”). During the Transition Period, the Executive shall assist
and advise the Company in any transition of business, customers, prospects, projects and strategic
planning, and the Company shall pay the pro rata portion of the Executive’s annual salary and
benefits through the end of the Transition Period. The Company may, in its sole discretion, upon
five (5) days prior written notice to the Executive, make such termination of employment effective
earlier than the Transition Period, but it shall pay the pro rata portion of the Executive’s salary
and benefits through the earlier of: the balance of the Transition Period, or such time during the
Transition Period as the Executive accepts employment or a consulting engagement from a third
party.



     8. CONSEQUENCES OF TERMINATION. Any termination payments made and benefits provided
under this Agreement to the Executive shall be in lieu of any termination or severance payments or
benefits for which the Executive may be eligible under any of the plans, policies or programs of
the Company or its affiliates as may be in effect from time to time. Except to the extent
otherwise provided in this Agreement, all benefits, including, without limitation, stock options,
stock appreciation rights, restricted stock units and other awards under the Company’s long-term
incentive programs, shall be subject to the terms and conditions of the plan or arrangement under
which such benefits accrue, are granted or are awarded. Subject to Section 9, the following
amounts and benefits shall be due to the Executive.



     (a) DISABILITY. Upon employment termination due to Disability, the Company shall pay
or provide the Executive (i) any unpaid Base Salary through the date of termination and any accrued
vacation (up to a maximum of seven (7) weeks); (ii) any unpaid bonus earned with respect to any
fiscal year ending on or preceding the date of termination; (iii) reimbursement for any unreimbursed expenses incurred through the date of termination; (iv) all other payments
and benefits to which the Executive may be entitled under the terms of any applicable compensation
arrangement or benefit, equity or perquisite plan or program or grant or this Agreement,



5









 




including but not limited to any applicable insurance benefits (collectively, “Accrued Amounts”).
Executive will also be paid a pro-rata portion of the Executive’s annual bonus for the performance
year in which the Executive’s termination occurs (the “Pro Rata Bonus”), payable in
accordance with the last sentence of Section 8(e) (determined by multiplying the amount the
Executive would have received based upon actual performance had employment continued through the
end of the performance year by a fraction, the numerator of which is the number of days during the
performance year of termination that the Executive is employed by the Company and the denominator
of which is 365). Upon such termination, all stock options, stock appreciation rights and
restricted stock awards will fully vest and become non-forfeitable. Notwithstanding anything
contained herein to the contrary, the Pro Rata Bonus shall not be paid in the event the Executive
voluntarily resigns from employment with the Company or otherwise voluntarily terminates employment
without Good Reason.




     (b) DEATH. In the event the Employment Term ends on account of the Executive’s death,
the Executive’s estate (or to the extent a beneficiary has been designated in accordance with a
program, the beneficiary under such program) shall be entitled to any Accrued Amounts, including
but not limited to proceeds from any Company sponsored life insurance programs. Executive’s estate
(or beneficiary) will also be paid a pro-rata portion of the Pro Rata Bonus. Upon the Executive’s
death, all stock options, stock appreciation rights and restricted stock awards will fully vest and
become non-forfeitable.



     (c) TERMINATION FOR CAUSE OR WITHOUT GOOD REASON. If the Executive’s employment
should be terminated (i) by the Company for Cause, or (ii) by the Executive without Good Reason,
the Company shall pay to the Executive any Accrued Amounts only, and shall not be obligated to make
any additional payments to Executive.



     (d) TERMINATION WITHOUT CAUSE OR FOR GOOD REASON. If the Executive’s employment by
the Company is terminated by the Company other than for Cause (and not due to Disability or death)
or by the Executive for Good Reason, then the Company shall pay or provide the Executive with:



          (1) Accrued Amounts;



          (2) the Pro Rata Bonus;



          (3) subject to compliance with Section 11(a)-(g) inclusive, continued payment of the
Executive’s Base Salary as in effect immediately preceding the last day of the Employment Term for
a period of 6 months after the last day of employment;



          (4) continued participation at the Company’s expense in all medical, dental and vision plans
which cover the Executive (and eligible dependents) upon the same terms and conditions (except for
the requirements of the Executive’s continued employment) in effect for active employees of the
Company, for a period of twelve (12) months following the last day of the Employment Term. In the
event the Executive obtains other employment that offers substantially similar or improved benefits, as to any particular medical, dental or vision
plan, such continuation of coverage by the Company for such similar or improved benefit under such
plan under this subsection shall immediately cease. The continuation of health benefits under



6









 




this subsection shall reduce the Executive’s rights and the Company’s payment obligations under the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”).




     (e) The parties acknowledge and agree that all calculations of bonuses by the Company are
based on targets, goals and objectives established by the Board of Directors for each fiscal year,
and that any bonus plans, as well as the Executive’s rights to receive bonus payments, are
conditioned on an assessment by the Board of Directors (or a committee thereof) of the satisfaction
of performance targets for the applicable fiscal year in which the bonus is to be paid. The
parties acknowledge that calculations of applicable bonuses have historically been made within 90
days following the conclusion of a fiscal year for which the bonus may be due or accrued, and
payment of the applicable bonus has been historically made within 10 business days following the
Board of Directors’ determination. Accordingly, the parties recognize and agree that the right to
receive any payment to which the Executive may be entitled under the terms of any applicable bonus
arrangement or benefit, including any bonus-related portion of the Accrued Amount, or the Pro Rata
Bonus, can only be established after the review and calculations of the applicable fiscal year
bonus entitlements are made by the Board of Directors (including any committee thereof). Once such
calculations are made by the Board of Directors (including any committee thereof), the Executive’s
right to receive the Pro Rata Bonus (or any applicable bonus-related portion of the Accrued Amount)
shall be accrued and paid as promptly as practicable following a determination of the bonus by the
Board of Directors (or any committee thereof) in the event the Executive is entitled to be paid
such bonus under the preceding provisions of Section 8(a)-(d) above. Notwithstanding the
foregoing, if the Executive is terminated by the Company without Cause, or by the Executive for
Good Reason, the Board of Directors (including any committee thereof) shall use its best efforts to
meet as promptly as practicable within 30 days following any notice of such termination by the
Company without Cause, or by the Executive for Good Reason, in order to make a good faith
determination of the Pro Rata Bonus, and to pay such Pro Rata Bonus (if earned) within 30 days of
such determination by the Board of Directors (including any committee thereof).



     9. CONDITIONS. Any payments or benefits made or provided pursuant to Section 8 (other
than Accrued Amounts) are subject to the Executive’s (or, in the event of the Executive’s death,
the beneficiary’s or estate’s, or in the event of the Executive’s Disability, the guardian’s):



     (a) compliance with the provisions of Section 11 hereof;



     (b) delivery to the Company of the executed Agreement and General Release (the “General
Release”), which shall be in the form attached hereto as Appendix A (with such changes
therein or additions thereto as needed under then applicable law to give effect to its intent and
purpose) within 21 days of presentation thereof by the Company to the Executive; and



     (c) delivery to the Company of a resignation from all offices, directorships and fiduciary
positions with the Company, its affiliates and employee benefit plans.



     Notwithstanding the due date of any post-employment payments, any amounts due following a
termination under this Agreement (other than Accrued Amounts) shall not be due until after the
expiration of any revocation period applicable to the General Release without the



7









 




Executive having revoked such General Release, and any such amounts shall be paid or commence being paid to the
Executive within five (5) days of the expiration of such revocation period without the occurrence
of a revocation by the Executive (or such later date as may be required under Section 409A of the
Code). Nevertheless (and regardless of whether the General Release has been executed by the
Executive), upon any termination of Executive’s employment, Executive shall be entitled to receive
any Accrued Amounts, payable after the date of termination in accordance with the Company’s
applicable plan, program, policy or payroll procedures.




     10. SECTION 4999 EXCISE TAX.



     (a) If any payments, rights or benefits (whether pursuant to the terms of this Agreement or
any other plan, arrangement or agreement of Executive with the Company or any person affiliated
with the Company) (the “Payments”) received or to be received by Executive will be subject to the
tax (the “Excise Tax”) imposed by Section 4999 of the Code (or any similar tax that may hereafter
be imposed), then, except as set forth in Section 10(b) below, the Company shall pay to Executive
an amount in addition to the Payments (the “Gross-Up Payment”) as calculated below. The Gross Up
Payment shall be in an amount such that, after deduction of any Excise Tax on the Payments and any
federal, state and local income and employment tax and Excise Tax on the Gross Up Payment, but
before deduction for any federal, state or local income and employment tax on the Payments, the net
amount retained by the Executive shall be equal to the Payments.



     (b) Notwithstanding anything in this Agreement to the contrary, if the amount of Payments that
will be subject to the Excise Tax does not exceed four times the “Base Amount” (as defined in
Section 280G(d)(2) of the Code), then Executive’s taxable cash-based benefits under this Agreement
will first be reduced in the order selected by Executive, and then, if necessary, Executive’s
equity-based compensation (based on the value of such equity-based compensation as a “parachute
payment” as defined in Treasury Regulations promulgated under Section 280G of the Code and IRS
revenue rulings, revenue procedures and other official guidance) shall be reduced in the order
selected by Executive, and then any other Payments shall be reduced as reasonably determined by the
Company, to the extent necessary to avoid imposition of the Excise Tax. If Executive does not
select the amount to be reduced within the time prescribed by the Company, the reductions specified
herein shall be made by the Company in its sole discretion from such compensation as it shall
determine. Any amount so reduced shall be irrevocably forfeited and Executive shall have no
further rights to receive it.



     (c) The process for calculating the Excise Tax, determining the amount of any Gross-Up Payment
and other procedures relating to this Section 10 are set forth in Appendix B attached hereto. For
purposes of making the determinations and calculations required herein, the Accounting Firm (as
defined in Appendix B) may rely on reasonable, good faith interpretations concerning the
application of Section 280G and 4999 of the Code, provided that the Accounting Firm shall make such
determinations and calculations on the basis of “substantial authority” (within the meaning of Section 6662 of the Code) and shall provide opinions to that effect to
both the Company and Executive.



     11. POST-EMPLOYMENT OBLIGATIONS



8









 





     (a) CONFIDENTIALITY. The Executive agrees that the Executive shall not, directly or
indirectly, use, make available, sell, disclose or otherwise communicate to any person, other than
in the course of the Executive’s employment and for the benefit of the Company, either during the
period of the Executive’s employment or at any time thereafter, any nonpublic, proprietary or
confidential information, knowledge or data relating to the Company, any of its subsidiaries,
affiliated companies or businesses, which shall have been obtained by the Executive during the
Executive’s employment by the Company. The foregoing shall not apply to information that (i) was
known to the public prior to its disclosure to the Executive; (ii) becomes known to the public
subsequent to disclosure to the Executive through no wrongful act of the Executive or any
representative of the Executive; or (iii) the Executive is required to disclose by applicable law,
regulation or legal process (provided that the Executive provides the Company with prior notice of
the contemplated disclosure and reasonably cooperates with the Company at its expense in seeking a
protective order or other appropriate protection of such information). Notwithstanding clauses (i)
and (ii) of the preceding sentence, the Executive’s obligation to maintain such disclosed
information in confidence shall not terminate where only portions of the information are in the
public domain.



     (b) NON-SOLICITATION. During the Executive’s employment with the Company and for the
twelve (12) month period thereafter, whether at the end of the Employment Term or thereafter, the
Executive agrees that the Executive will not, directly or indirectly, individually or on behalf of
any other person, firm, corporation or other entity, knowingly solicit, aid or induce (i) any
managerial level employee of the Company or any of its subsidiaries or affiliates to leave such
employment in order to accept employment with or render services to or with any other person, firm,
corporation or other entity unaffiliated with the Company or knowingly take any action to
materially assist or aid any other person, firm, corporation or other entity in identifying or
hiring any such employee (provided, that the foregoing shall not be violated by general advertising
not targeted at Company employees nor by serving as a reference for an employee with regard to an
entity with which the Executive is not affiliated) or (ii) any customer of the Company or any of
its subsidiaries or affiliates to purchase goods or services then sold by the Company or any of its
subsidiaries or affiliates from another person, firm, corporation or other entity or assist or aid
any other persons or entity in identifying or soliciting any such customer (provided, that the
foregoing shall not apply to any product or service which is not covered by the non-competition
provision set forth in Section 11(c), below).



     (c) NON-COMPETITION. The Executive acknowledges that the Executive performs services
of a unique nature for the Company that are irreplaceable, and that the Executive’s performance of
such services to a competing business (other than respecting a product or service of the Company
involving less than one percent (1%) of the Company’s revenues in the prior fiscal year (“De
Minimis”)) will result in irreparable harm to the Company. Accordingly, during the Executive’s
employment hereunder and for the twelve (12) month period thereafter, (whether at the end of the
Employment Term or thereafter), the Executive shall not, without the Board’s prior written consent,
directly or indirectly engage in the development, production, marketing, or sale of products or services that compete (or, upon
commercialization, could compete) with products of the Company or its affiliates being developed,
marketed or sold as of the date of such termination (such business or activity, a “Competing
Business”) whether such engagement shall be as an officer, director, owner, employee, partner,
consultant, advisor or any other capacity. This Section 11(c) shall not prevent the Executive from
owning not more



9









 




than one percent (1%) of the total shares of all classes of stock outstanding of
any publicly held entity engaged in such business, nor will it restrict the Executive from
rendering services to charitable organizations, as such term is defined in Section 501(c) of the
Code.




     (d) NON-DISPARAGEMENT. Each of the Executive and the Company (for purposes hereof,
“the Company” shall mean only (i) the Company by press release or other formally released
announcement and (ii) the executive officers and directors thereof and not any other employees)
agrees not to make any public statements that disparage the other party, or in the case of the
Company, its respective affiliates, employees, officers, directors, products or services.
Notwithstanding the foregoing, statements made in the course of sworn testimony in administrative,
judicial or arbitral proceedings (including, without limitation, depositions in connection with
such proceedings) shall not be subject to this Section 11(d).



     (e) RETURN OF COMPANY PROPERTY AND RECORDS. The Executive agrees that upon
termination of the Executive’s employment, for any cause whatsoever, the Executive will surrender
to the Company in good condition (reasonable wear and tear excepted) all property and equipment
belonging to the Company and all records (including all copies or derivations) kept by the
Executive containing the names, addresses or any other information with regard to customers or
customer contacts of the Company, or concerning any proprietary or confidential information of the
Company or any operational, financial or other documents given to or developed by the Executive
during the Executive’s employment with the Company.



     (f) COOPERATION. The Executive agrees that, following termination of the Executive’s
employment for any reason, the Executive shall upon reasonable advance notice, and to the extent it
does not interfere with previously scheduled travel plans and does not unreasonably interfere with
other business activities or employment obligations, assist and cooperate with the Company with
regard to any matter or project in which the Executive was involved during the Executive’s
employment, including any litigation. The Company shall compensate the Executive for any lost
wages or expenses associated with such cooperation and assistance.



     (g) ASSIGNMENT OF INVENTIONS. The Executive will promptly communicate and disclose in
writing to the Company all inventions, developments and processes including software, whether
patentable or not, as well as patents and patent applications (hereinafter collectively called
“Inventions”), made, conceived, developed, or purchased by the Executive, or under which the
Executive acquires the right to grant licenses or to become licensed, alone or jointly with others,
which have arisen or may arise out of the Executive’s employment, or relate to any matters
pertaining to, or useful in connection with, the business, processes or affairs of the Company or
any of its subsidiaries. Included herein as if developed during the employment period is any
specialized equipment and software developed for use in the business of the Company. All of the
Executive’s right, title and interest in, to, and under all such Inventions, licenses, and right to
grant licenses shall be the sole property of the Company. Any such Inventions disclosed to anyone by the Executive within one (1) year after the termination of
employment for any cause whatsoever shall be deemed to have been made or conceived by the Executive
during the Term. As to all such Inventions, the Executive will, upon request of the Company
execute all documents which the Company deems necessary or proper to enable it to establish title
to such Inventions or other rights, and to enable it to file and prosecute applications



10









 




for letters patent of the United States and any foreign country; and do all things (including the giving of
evidence in suits and other proceedings) which the Company deems necessary or proper to obtain,
maintain, or assert patents for any and all such Inventions or to assert its rights in any
Inventions not patented.




     (h) EQUITABLE RELIEF AND OTHER REMEDIES. The parties acknowledge and agree that the
other party’s remedies at law for a breach or threatened breach of any of the provisions of this
Section would be inadequate and, in recognition of this fact, the parties agree that, in the event
of such a breach or threatened breach, in addition to any remedies at law, the other party, without
posting any bond, shall be entitled to obtain equitable relief in the form of specific performance,
temporary restraining order, a temporary or permanent injunction or any other equitable remedy
which may then be available.



     (i) REFORMATION. If it is determined by a court of competent jurisdiction in any
state that any restriction in this Section 11 is excessive in duration or scope or is unreasonable
or unenforceable under the laws of that state, it is the intention of the parties that such
restriction may be modified or amended by the court to render it enforceable to the maximum extent
permitted by the law of that state.



     (j) SURVIVAL OF PROVISIONS. The obligations contained in this Section 11 shall
survive the termination or expiration of the Executive’s employment with the Company and shall be
fully enforceable thereafter.



     12. NO ASSIGNMENT.



     (a) The Executive may not assign or delegate any rights or obligations hereunder without first
obtaining the written consent of the other party hereto.



     (b) The Company, without the Executive’s consent, may assign this Agreement to a parent or
subsidiary, or to any successor to all or substantially all of the business and/or assets of the
Company provided the Company shall require such successor to expressly assume and agree in writing
to perform this Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place and shall deliver a copy of such
assignment to the Executive.



     13. NOTICE. For the purpose of this Agreement, notices and all other communications
provided for in this Agreement shall be in writing and shall be deemed to have been duly given (a)
on the date of delivery if delivered by hand, (b) on the date of transmission, if delivered by
confirmed facsimile, (c) on the first business day following the date of deposit if delivered by
guaranteed overnight delivery service, or (d) on the fourth business day following the date
delivered or mailed by United States registered or certified mail, return receipt requested,
postage prepaid, addressed as follows:



     If to the Executive: at the address (or to the facsimile number) shown on the records of the
Company.



     If to the Company:



11









 




Arthur B. Malman, Chair of the Compensation Committee

Malman & Goldman LLP

900 Third Avenue, 29th Floor

New York, New York 10022

Facsimile No. (212) 202-5017




     And


Randal J. Kirk, Sr. Managing Director and CEO



Third Security, LLC

The Governor Tyler

1881 Grove Avenue

Radford, VA 24141

Facsimile No. (540) 633-7979



or to such other address as either party may have furnished to the other in writing in accordance
herewith, except that notices of change of address shall be effective only upon receipt.




     14. SECTION HEADINGS; INCONSISTENCY. The section headings used in this Agreement are
included solely for convenience and shall not affect, or be used in connection with, the
interpretation of this Agreement. If there is any inconsistency between this Agreement and any
other agreement (including but not limited to any option, stock, long-term incentive or other
equity award agreement), plan, program, policy or practice (collectively, “Other
Provision”) of the Company the terms of this Agreement shall control over such Other Provision.



     15. PRIOR AGREEMENTS. This Agreement supersedes and replaces any and all prior
employment agreements and change in control agreements between the Company and/or any of its
subsidiaries and the Executive, including, with limitation, the Prior Agreement and the Employment
Agreement dated January 1, 2004, by and between the Executive and Genaissance Pharmaceuticals, Inc.
(collectively, the “Prior Agreements”). By signing this Agreement, the Executive
acknowledges that the Prior Agreements are terminated and cancelled, and releases and discharges
the Company from any and all obligations and liabilities heretofore or now existing under or by
virtue of such Prior Agreements, it being the intention of the parties hereto that this Agreement
effective immediately shall supersede and be in lieu of the Prior Agreements. Notwithstanding
anything contained in this Agreement to the contrary, except to the extent expressly superceded
hereby, the Stock Option Agreements listed from time to time on Appendix D shall remain in
full force and effect.



     16. SEVERABILITY. The provisions of this Agreement shall be deemed severable and the
invalidity of unenforceability of any provision shall not affect the validity or enforceability of
the other provisions hereof.



     17. COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall
be deemed to be an original but all of which together will constitute one and the same instruments.
One or more counterparts of this Agreement may be delivered by facsimile, with the intention that
delivery by such means shall have the same effect as delivery of an original counterpart thereof.



12









 





     18. MISCELLANEOUS. No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing and signed by the
Executive and such officer or director as may be designated by the Board. No waiver by either
party hereto at any time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party shall be deemed a
waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent
time. This Agreement together with all exhibits hereto sets forth the entire agreement of the
parties hereto in respect of the subject matter contained herein. No agreements or
representations, oral or otherwise, express or implied, with respect to the subject matter hereof
have been made by either party which are not expressly set forth in this Agreement. The validity,
interpretation, construction and performance of this Agreement shall be governed by the laws of the
Commonwealth of Massachusetts without regard to its conflicts of law principles.



     19. PAYMENT OF COMPENSATION. The parties shall revisit this Agreement when the IRS
issues final regulations under Section 409A of the Code for the sole purpose of determining whether
any amendments are required in order to comply with such regulations. The parties shall promptly
agree in good faith on appropriate provisions to avoid any material risk of noncompliance without
materially changing the economic value (to the Executive) or the cost (to the Company) of this
Agreement. Notwithstanding the foregoing, the Company shall in no event be obligated to indemnify
the Executive for any taxes or interest that may be assessed by the IRS pursuant to Section 409A of
the Code. To the extent the Executive does not receive payments under this Agreement as required
by this Agreement due to the application of Section 409A, all suspended payments shall earn and
accrue interest at the prevailing “Prime Rate” of interest as published by The Wall Street Journal
at the time the payment is made, and any payment when so made, shall be made as a lump sum payment,
including accrued interest.



     20. MITIGATION OF DAMAGES. In no event shall the Executive be obliged to seek other
employment or take any other action by way of mitigation of the amounts payable to the Executive
under any of the provisions of this Agreement, nor shall the amount of any payment hereunder be
reduced by any compensation earned by the Executive as a result of employment by another employer,
except as set forth in this Agreement.



     21. REPRESENTATIONS. The Executive represents and warrants to the Company that the
Executive has the legal right to enter into this Agreement and to perform all of the obligations on
the Executive’s part to be performed hereunder in accordance with its terms and that the Executive
is not a party to any agreement or understanding, written or oral, which could prevent the
Executive from entering into this Agreement or performing all of the Executive’s obligations
hereunder. The Executive further represents and warrants that he has been advised to consult with
an attorney and that he has been represented by the attorney of her choosing during the negotiation
of this Agreement, that he has consulted with her attorney before executing this Agreement, that he has carefully read and fully understand all of the provisions of this
Agreement and that he is voluntarily entering into this Agreement.



     22. WITHHOLDING. The Company may withhold from any and all amounts payable under this
Agreement such federal, state and local taxes as may be required to be withheld pursuant to any
applicable law or regulation.



13









 





     23. SURVIVAL. The respective obligations of, and benefits afforded to, the Company
and Executive which by their express terms or clear intent survive termination of Executive’s
employment with the Company, including, without limitation, the provisions of Sections 8 through
24, inclusive of this Agreement, will survive termination of Executive’s employment with the
Company, and will remain in full force and effect according to their terms.



     24. AGREEMENT OF THE PARTIES. The language used in this Agreement will be deemed to
be the language chosen by the parties hereto to express their mutual intent, and no rule of strict
construction will be applied against any party hereto. Neither Executive nor the Company shall be
entitled to any presumption in connection with any determination made hereunder in connection with
any arbitration, judicial or administrative proceeding relating to or arising under this Agreement.



     25. DISPUTE RESOLUTION. In the event of any controversy, dispute or claim between the
parties under, arising out of or related to this Agreement (including but not limited to, claims
relating to breach, termination of this Agreement, or the performance of a party under this
Agreement) whether based on contract, tort, statute or other legal theory (collectively referred to
hereinafter as “Disputes”), the parties shall follow the dispute resolution procedures set
forth below. The parties shall first attempt to resolve a dispute, at the written request of
either party, through discussions between the Executive and an authorized senior management
representative of the Company. If a dispute is not resolved by the foregoing discussions between
the senior management of the Company and the Executive within thirty (30) days, the parties agree,
at the written request of either party, to submit the dispute to a sole mediator selected by the
parties for settlement within an additional thirty-day period.



     To the extent any Dispute is not settled by mediation as outlined above, then any Dispute
shall be finally settled by arbitration in accordance with the rules of the American Arbitration
Association then in force, and that the arbitration hearings shall be held in Boston,
Massachusetts. The parties agree to (i) appoint an arbitrator who is knowledgeable in employment
and human resource matters and, to the extent possible, the industry in which the Company operates,
and instruct the arbitrator to follow substantive rules of law; (ii) require the testimony to be
transcribed; and (iii) require the award to be accompanied by findings of act and a statement of
reasons for the decision. The arbitrator shall have the authority to permit discovery, to the
extent deemed appropriate by the arbitrator, upon request of a party, but such discovery process
shall continue for no more than thirty (30) days. The arbitrator shall have no power or authority
to add to or detract from the written agreement of the parties. If the parties cannot agree upon
an arbitrator within ten (10) days after demand by either of them, either or both parties may
request the American Arbitration Association name a panel of five (5) arbitrators. The Company
shall strike the names of two (2) off this list, the Executive shall also strike two (2) names, and
the remaining name shall be the arbitrator. The parties shall stipulate that arbitration shall be completed within sixty (60) days. All costs and expenses, including attorneys’ and the
arbitrator’s fees, of all parties incurred in any dispute which is determined and/or settled by
arbitration shall be borne by the party determined to be primarily liable in respect of such
dispute; provided, however, that if complete liability is not assessed against any one
party, the parties shall share the total costs in proportion to their respective amounts of
liability so determined. Any award shall be final, binding and conclusive upon the parties and a
judgment rendered thereon may be entered in any court having jurisdiction thereof. This Section
shall not



14









 




limit the right of any party to sue for injunctive relief for a breach of the obligations
in Section 11 (a)-(g) inclusive.




     IN WITNESS WHEREOF, the parties hereto have executed this Agreement, effective as of the date
first written above.



	 	 	 	 	 	 	 
	 	 	CLINICAL DATA, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Andrew J Fromkin
 

Andrew J. Fromkin
	 	 
	 

	 	 	 	President and CEO	 	 
	 
	 	 	 	 	 	 
	 	 	Date: June 16, 2008	 	 






	 	 	 	 	 
	 

	 	CAROL REED, M.D.	 	 
	 
	 	 	 	 
	 

	 	/s/ Carol R. Reed
 

	 	 
	 
	 	 	 	 
	 

	 	Date: June 16, 2008	 	 






15









 






APPENDIX A




FORM OF RELEASE




AGREEMENT AND GENERAL RELEASE




     Clinical Data, Inc., its affiliates, subsidiaries, divisions, successors and assigns in such
capacity, and the current, future and former employees, officers, directors, trustees and agents
thereof (collectively referred to throughout this Agreement as “Employer”), and Carol Reed,
M.D. (“Executive”), the Executive’s heirs, executors, administrators, successors and
assigns (collectively referred to throughout this Agreement as “Employee”) agree:



     1. Last Day of Employment. Executive’s last day of employment with Employer is
[insert date]. In addition, effective as of [insert date], Executive resigns from the Executive’s
position as Chief Medical Officer of Employer and will not be eligible for any benefits or
compensation after [insert date], other than as specifically provided in Sections 6 and 8 of the
Executive Employment Agreement between Employer and Executive dated
as of June 16, 2008 (the
“Employment Agreement”). Executive further acknowledges and agrees that, after [insert date], the
Executive will not represent the Executive as being a director, employee, officer, trustee, agent
or representative of Employer for any purpose. In addition, effective as of [insert date],
Executive resigns from all offices, directorships, trusteeships, committee memberships and
fiduciary capacities held with, or on behalf of, Employer or any benefit plans of Employer. These
resignations will become irrevocable as set forth in Section 3 below.



     2. Consideration. The parties acknowledge that this Agreement and General Release is
being executed in accordance with Section 9 of the Employment Agreement.



     3. Revocation. Executive may revoke this Agreement and General Release for a period
of fifteen (15) calendar days following the day Executive executes this Agreement and General
Release. Any revocation within this period must be submitted, in writing, to Employer and state,
“I hereby revoke my acceptance of our Agreement and General Release.” The revocation must be
personally delivered to Randal J. Kirk, Sr. Managing Director and CEO, c/o Third Security, LLC, The
Governor Tyler, 1881 Grove Avenue, Radford, VA 24141, or her designee, or mailed to this same
person and address, and postmarked within fifteen (15) calendar days of execution of this Agreement
and General Release. This Agreement and General Release shall not become effective or enforceable
until the revocation period has expired. If the last day of the revocation period is a Saturday,
Sunday, or legal holiday, then the revocation period shall not expire until the next following day
which is not a Saturday, Sunday, or legal holiday.



     4. General Release of Claims. (A) The Employee knowingly and voluntarily releases and
forever discharges Employer from any and all actions, causes of action, contributions, indemnities,
duties, debts, sums of money, suits, controversies, restitutions, understandings, agreements,
promises, claims regarding stock, stock options or other forms of equity compensation, commitments,
damages, fees and liabilities, responsibilities and any and all claims, demands, executions and
liabilities of whatsoever kind, nature or description, oral or written, known or unknown, matured
or unmatured, suspected or unsuspected at the present time, in law or in equity, whether known and
unknown, against Employer, which the Employee has,



16









 




has ever had or may have as of the date of execution of this Agreement and General Release,
including, but not limited to, any alleged violation of:





	 	–	 	Title VII of the Civil Rights Act of 1964, as amended;
	 
	 	–	 	The Civil Rights Act of 1991;
	 
	 	–	 	Sections 1981 through 1988 of Title 42 of the United States Code, as amended;
	 
	 	–	 	The Employee Retirement Income Security Act of 1974, as amended;
	 
	 	–	 	The Immigration Reform and Control Act, as amended;
	 
	 	–	 	The Americans with Disabilities Act of 1990, as amended;
	 
	 	–	 	The Age Discrimination in Employment Act of 1967, as amended;
	 
	 	–	 	The Older Workers Benefit Protection Act of 1990;
	 
	 	–	 	The Worker Adjustment and Retraining Notification Act, as amended;
	 
	 	–	 	The Occupational Safety and Health Act, as amended;
	 
	 	–	 	The Family and Medical Leave Act of 1993;
	 
	 	–	 	Any wage payment and collection, equal pay and other similar laws, acts and
statutes of the Commonwealth of Massachusetts;
	 
	 	–	 	Any other federal, state or local civil or human rights law or any other local,
state or federal law, regulation or ordinance;
	 
	 	–	 	Any public policy, contract, tort, or common law; or
	 
	 	–	 	Any allegation for costs, fees, or other expenses including attorneys’ fees
incurred in these matters.





     Notwithstanding anything herein to the contrary, the sole matters to which the Agreement and
General Release do not apply are: (i) Employee’s express rights or claims for accrued vested
benefits under any employee benefit plan, policy or arrangement maintained by Employer or under
COBRA; (ii) Employee’s rights under the provisions of the Employment Agreement which are intended
to survive termination of employment; (iii) Employee’s rights as a stockholder; or (v) any rights
of the Executive to indemnification as a Director or Officer of the Company.



     (B) For good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the undersigned parties, except as expressly provided under paragraph (C)
immediately below, the Company does hereby remise, release, acquit and forever discharge Employee
of and from all actions, causes of action, contributions, indemnities, duties, debts, sums of
money, suits, controversies, restitutions, understandings, agreements, promises,



17









 




commitments, damages, responsibilities and any and all claims, demands, executions and liabilities
of whatsoever kind, nature or description, oral or written, known or unknown, matured or unmatured,
suspected or unsuspected at the present time, in law or in equity, including, without limitation,
any claims which have heretofore arisen or which may arise out of or are or may be in any way or in
any manner connected with or related to Employee’s acts performed for, on behalf and in the name of
the Company, any actions taken by Employee in her capacity as an officer of the Company, or the
Employee’s employment by the Company, which the Releasing Party ever had, now has or hereafter can,
shall or may have against the Released Party, from the beginning of the world to the date hereof.




     (C) Expressly excluded from the above release of all claims are any and all claims which
result from any of the following upon final adjudication thereof by a court of competent
jurisdiction after all appeal periods have lapsed or have been waived by the relevant party: (i)
theft, embezzlement or forgery by Employee relating to the Company, its clients or former clients
or its affiliated companies; (ii) gross negligence or actual or constructive fraud by Employee in
the conduct of the Company’s business or in the conduct of the affairs of any client or former
client of the Company; and (iii) breach of any duty owed by Employee under applicable law
including, but not limited to, breach of any fiduciary duty or breach of any other legal duty by
Employee in the conduct of the Company’s business as an officer of the Company, or in the conduct
of the affairs of any client or former client of the Company.



     (D) The parties recognize and agree that the Employee’s right to receive any bonus payment to
which the Employee may be entitled under Section 8 of the Executive Employment Agreement, including
any bonus-related portion of the Accrued Amount, or the Pro Rata Bonus, can only be established
after the review and calculations of the applicable fiscal year bonus entitlements are made by the
Board of Directors (including any committee thereof). Once such calculations are made by the Board
of Directors (including any committee thereof), the Employee’s right to receive the Pro Rata Bonus
(or any applicable bonus-related portion of the Accrued Amount) shall be accrued and paid as
promptly as practicable following a determination of the bonus by the Board of Directors (or any
committee thereof) in the event the Employee is entitled to be paid such bonus under the provisions
of Section 8(a)-(d) of the Executive Employment Agreement. Notwithstanding the foregoing, if the
Employee is terminated by the Company without Cause, or by the Executive for Good Reason, the Board
of Directors (including any committee thereof) shall use its best efforts to meet as promptly as
practicable within 30 days following any notice of such termination by the Company without Cause,
or by the Executive for Good Reason, in order to make a good faith determination of the Pro Rata
Bonus, and to pay such Pro Rata Bonus (if earned) within 30 days of the determination by the Board
of Directors (including any committee thereof).



     5. No Claims Permitted. Employee waives Executive’s right to file any charge or
complaint against Employer arising out of Executive’s employment with or separation from Employer
before any federal, state or local court or any state or local administrative agency, except where
such waivers are prohibited by law.



     6. Affirmations. Employee affirms Executive has not filed, has not caused to be
filed, and is not presently a party to, any claim, complaint, or action against Employer in any
forum. Employee further affirms that the Executive has been paid and/or has received all



18









 




compensation, wages, bonuses, commissions, and/or benefits to which Executive may be entitled
and no other compensation, wages, bonuses, commissions and/or benefits are due to Executive, except
as provided in Sections 6 and 8 of the Employment Agreement. Employee also affirms Executive has
no known workplace injuries.




     7. Cooperation; Return of Property. Employee agrees to reasonably cooperate with
Employer and its counsel in connection with any investigation, administrative proceeding or
litigation relating to any matter that occurred during Executive’s employment in which Executive
was involved or of which Executive has knowledge. Employer will reimburse the Employee for any
reasonable out-of-pocket travel, delivery or similar expenses incurred in providing such service to
Employer. Employee represents that Executive has returned to Employer all property belonging to
Employer, including but not limited to any leased vehicle, laptop, cell phone, keys, access cards,
phone cards and credit cards, provided that Executive may retain, and Employer shall cooperate in
transferring, Executive’s cell phone number and any home communication and security equipment as
well as Executive’s rolodex and other address books.



     8. Governing Law and Interpretation. This Agreement and General Release shall be
governed and conformed in accordance with the laws of the Commonwealth of Massachusetts without
regard to its conflict of laws provisions. In the event Employee or Employer breaches any
provision of this Agreement and General Release, Employee and Employer affirm either may institute
an action to specifically enforce any term or terms of this Agreement and General Release. Should
any provision of this Agreement and General Release be declared illegal or unenforceable by any
court of competent jurisdiction and should the provision be incapable of being modified to be
enforceable, such provision shall immediately become null and void, leaving the remainder of this
Agreement and General Release in full force and effect. Nothing herein, however, shall operate to
void or nullify any general release language contained in the Agreement and General Release.



     9. No Admission of Wrongdoing. Employee agrees neither this Agreement and General
Release nor the furnishing of the consideration for this Release shall be deemed or construed at
any time for any purpose as an admission by Employer of any liability or unlawful conduct of any
kind.



     10. Amendment. This Agreement and General Release may not be modified, altered or
changed except upon express written consent of both parties wherein specific reference is made to
this Agreement and General Release.



     11. Entire Agreement. This Agreement and General Release sets forth the entire
agreement between the parties hereto and fully supersedes any prior agreements or understandings
between the parties; provided, however, that notwithstanding anything in this Agreement and General
Release, the provisions in the Employment Agreement which are intended to survive termination of
the Employment Agreement, including but not limited to those contained in Section 11 thereof, shall
survive and continue in full force and effect. Employee acknowledges Executive has not relied on
any representations, promises, or agreements of any kind made to Executive in connection with
Executive’s decision to accept this Agreement and General Release.



19









 





     EMPLOYEE HAS BEEN ADVISED THAT EXECUTIVE HAS UP TO TWENTY-ONE (21) CALENDAR DAYS TO REVIEW
THIS AGREEMENT AND GENERAL RELEASE AND HAS BEEN ADVISED IN WRITING TO CONSULT WITH AN ATTORNEY
PRIOR TO EXECUTION OF THIS AGREEMENT AND GENERAL RELEASE.



     EMPLOYEE AGREES ANY MODIFICATIONS, MATERIAL OR OTHERWISE, MADE TO THIS AGREEMENT AND GENERAL
RELEASE DO NOT RESTART OR AFFECT IN ANY MANNER THE ORIGINAL TWENTY-ONE (21) CALENDAR DAY
CONSIDERATION PERIOD.



     HAVING ELECTED TO EXECUTE THIS AGREEMENT AND GENERAL RELEASE, TO FULFILL THE PROMISES SET
FORTH HEREIN, AND TO RECEIVE THE SUMS AND BENEFITS SET FORTH IN THE EMPLOYMENT AGREEMENT, EMPLOYEE
FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTERS INTO THIS AGREEMENT AND GENERAL RELEASE
INTENDING TO WAIVE, SETTLE AND RELEASE ALL CLAIMS EXECUTIVE HAS OR MIGHT HAVE AGAINST EMPLOYER.



     IN WITNESS WHEREOF, the parties hereto knowingly and voluntarily executed this Agreement and
General Release as of the date set forth below:



	 	 	 	 	 	 	 
	 	 	CLINICAL DATA, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Andrew J. Fromkin
	 	 
	 

	 	 	 	President and CEO	 	 
	 
	 	 	 	 	 	 
	 

	 	Date:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 	 	CAROL REED, M.D.	 	 
	 
	 
	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Date:	 	 	 	 
	 

	 	 	 	 

	 	 






20









 






APPENDIX B




TAX GROSS-UP PAYMENT RULES AND PROCEDURES




     1. Subject to Paragraph 3 below, all determinations required to be made under Section 10 of
this Agreement, including whether a Gross-Up Payment is required and the amount of such Gross-Up
Payment, shall be made by an accounting firm (the “Accounting Firm”) selected in accordance with
Paragraph 2 below. The Accounting Firm shall provide detailed supporting calculations both to the
Company and Executive within 15 business days of the event that results in the potential for an
excise tax liability for the Executive, which could include but is not limited to a Change in
Control and the subsequent vesting of any cash payments or awards, or the Executive’s termination
of employment, or such earlier time as is required by the Company. The initial Gross-Up Payment,
if any, as determined pursuant to this Paragraph 1, shall be paid on the Executive’s behalf to the
applicable taxing authorities within five (5) days of the receipt of the Accounting Firm’s
determination. If the Accounting Firm determines that no Excise Tax is payable to the Executive,
it shall furnish the Executive with a written report indicating that he has substantial authority
not to report any Excise Tax on her federal income tax return. Any determination by the Accounting
Firm shall be binding upon the Company and Executive. As a result of the uncertainty in the
application of Section 4999 of the Code at the time of the initial determination by the Accounting
Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company
should have been made (“Underpayment”), consistent with the calculations required to be made
hereunder. In the event that the Company exhausts its remedies pursuant to Paragraph 3 below and
Executive thereafter is required to make a payment or additional payment of any Excise Tax, the
Accounting Firm shall determine the amount of the Underpayment that has occurred and any such
Underpayment, increased by all applicable interest and penalties associated with the Underpayment,
shall be promptly paid by the Company to or for the benefit of Executive. For purposes of
determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income tax
at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up
Payment is to be made and state and local income taxes on earned income at the highest marginal
rate of taxation in the state and locality of Executive’s residence on the Effective Date of
Termination, net of the maximum reduction in federal income taxes which could be obtained from
deduction of such state and local taxes.



     2. The Accounting Firm shall be a public accounting firm proposed by the Company and agreed
upon by the Executive. If Executive and the Company cannot agree on the firm to serve as the
Accounting Firm within ten (10) days after the date on which the Company proposed to Executive a
public accounting firm to serve as Auditor, then Executive and the Company shall each select one
accounting firm and those two firms shall jointly select the accounting firm to serve as the
Accounting Firm within ten (10) days after being requested by the Company and Executive to make
such selection. The Company shall pay the Auditor’s fee.



     3. Executive shall notify the Company in writing of any claim by the Internal Revenue Service
that, if successful, would require the payment by the Company of the Gross-Up Payment. Such
notification shall be given as soon as practicable but no later than fifteen (15) business days
after Executive knows of such claim and shall apprise the Company of the nature



21









 




of such claim and the date on which such claim is requested to be paid. Executive shall not
pay such claim prior to the expiration of the period ending on the date that any payment of taxes
with respect to such claim is due or the thirty day period following the date on which Executive
gives such notice to the Company, whichever period is shorter. If the Company notifies Executive
in writing prior to the expiration of such period that it desires to contest such claim, Executive
shall (i) give the Company any information reasonably requested by the Company relating to such
claim, (ii) take such action in connection with contesting such claim as the Company shall
reasonably request in writing from time to time, including, without limitation, accepting legal
representation with respect to such claim by an attorney reasonably selected by the Company, (iii)
cooperate with the Company in good faith in order effectively to contest such claim, and (iv)
permit the Company to participate in any proceedings relating to such claim; provided, however,
that the Company shall bear and pay directly all costs and expenses (including attorneys fees and
any additional interest and penalties) incurred in connection with such contest and shall indemnify
and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including
interest and penalties with respect thereto, imposed as a result of such representation and payment
of costs and expenses. Without limitation of the foregoing provisions of this Paragraph 3, the
Company shall control all proceedings taken in connection with such contest and, at its sole
option, may pursue or forego any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect to such claim and may, at its sole option, either
direct Executive to pay the tax claimed and sue for a refund or contest the claim in any
permissible manner, and Executive agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as
the Company shall determine; provided, however, that if the Company directs Executive to pay such
claim and sue for a refund, the Company shall advance the amount of such payment to Executive, on
an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from
any Excise Tax and income tax, including interest or penalties with respect thereto, imposed with
respect to such advance or with respect to any imputed income with respect to such advance; and
further provided that any extension of the statute of limitations relating to payment of taxes for
the taxable year of Executive with respect to which such contested amount is claimed to be due is
limited solely to such contested amount. Furthermore, the Company’s control of the contest shall
be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and
Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the
Internal Revenue Service or any other authority.




     4. If, after the receipt by Executive of an amount advanced by the Company pursuant to
Paragraph 3 above, Executive becomes entitled to receive any refund with respect to such claim,
Executive shall (subject to the Company’s complying with the requirements of Paragraph 3), promptly
pay to the Company the amount of such refund (together with any interest paid or credited thereon
after taxes applicable thereto).



22









 





APPENDIX C




DEFINITION OF A CHANGE IN CONTROL



A “Change in Control” means the consummation of or entering into by the Company of any
agreement, contract, plan or understanding with respect to (i) the merger, consolidation or
reorganization of the Company into or with another corporation in a business combination
transaction in which the Company is the target of such transaction (except one in which the holders
of capital stock of the Company immediately prior to such merger, consolidation or reorganization
continue to beneficially own (within the meaning of Rule 13d-3 of the Securities Exchange Act of
1934, as amended (the “Act”)) at least a majority of the voting power of the capital stock
of the surviving corporation), (ii) any sale, lease or transfer of all or substantially all of the
capital stock, assets or intellectual property of the Company (except (A) to an entity
majority-owned or controlled by the Company or by any of the holders of capital stock of the
Company, or (B) in any transaction structured as a spin-off or divestiture of assets or
intellectual property of the Company or its subsidiaries ), (iii) any other transaction other than
an equity financing transaction or series of related equity financing transactions pursuant to or
as a result of which an individual, entity or group (within the meaning of Sections 13(d)(3) or
14(d)(2) of the Act) acquires or beneficially owns capital stock of the Company representing a
majority of the Company’s outstanding voting power, or (iv) a complete or substantial liquidation
or dissolution of the Company. In the event of any interpretation of this definition, the Board of
Directors of the Company, upon advice of legal counsel, shall have final and conclusive authority,
so long as such authority is exercised in good faith.




23









 








APPENDIX D




EQUITY AWARDS




     The following chart summarizes the Executive’s outstanding options as of June 16, 2008 that
are subject to Section 5 of this Agreement:



	 	 	 	 	 	 	 	 	 	 	 
	Grant	 	No. of	 	Exercise
	Date	 	Options	 	Price
	 	11JUN01	 	 	 	975	 	 	 	133.54	 
	 	16OCT01	 	 	 	146	 	 	 	46.15	 
	 	02JAN02	 	 	 	975	 	 	 	46.97	 
	 	09DEC03	 	 	 	4,778	 	 	 	26.25	 
	 	27APR04	 	 	 	2,048	 	 	 	38.36	 
	 	07JAN05	 	 	 	7,092	 	 	 	22.57	 
	 	07JAN05	 	 	 	1,194	 	 	 	22.57	 
	 	07OCT05	 	 	 	18,000	 	 	 	11.93	 
	 	23DEC05	 	 	 	12,000	 	 	 	11.93	 
	 	12MAY06	 	 	 	45,000	 	 	 	12.37	 
	 	14JUN07	 	 	 	45,000	 	 	 	14.99	 
	 	17APR08	 	 	 	75,000	 	 	 	16.95	 







24