Employment Contract Kessler 1.3.2006


    AMENDED
      AND RESTATED EMPLOYMENT AGREEMENT

    


    This
      Employment Agreement is made as of the 3rd
      day of
      January, 2006, by and between Symbollon Pharmaceuticals, Inc., a Delaware
      corporation with its principal place of business at 37 Loring Drive, Framingham,
      MA 01702 (the "Company"), and Jack H. Kessler, residing at 56 Presidential
      Drive, Southborough, MA 01772 (the "Employee").

    


    In
      consideration of the mutual promises contained in this Agreement, the parties
      agree as follows:

    


    1.
      Titles
      and Responsibilities.
      The
      Company employs the Employee, and the Employee accepts employment, as Chief
      Scientific Officer and Executive Vice President of the Company. The Employee
      shall be directly responsible for such business, scientific and developmental
      matters as may be assigned by the Chief Executive Officer of the Company (the
      “CEO”) . Subject to the general direction and control of the CEO"), the Employee
      agrees to devote his full time and best efforts to his duties and
      responsibilities for the Company. The Employee shall report directly to the
      CEO.


     

    2.
      Term.
      The
      term of this Agreement shall be deemed to have commenced as of the date hereof
      and, subject to the provisions of Section 12 of this Agreement, shall continue
      in full force and effect until December 31, 2008.

    


    3.
      Base
      Salary.
      During
      the term of this Agreement, the Employee shall be entitled to receive base
      salary at the rate of $190,000 per year, payable not less than monthly in
      arrears, commencing January, 2006. The Company may, but shall not be obligated
      to, increase the Employee's base salary in any year.

    


    4.
      Bonuses.

    


    (a). Annual.
      In
      addition to the base salary described in Section 3, during the term of this
      Agreement, the Employee may be entitled in each calendar year to receive a
      cash
      bonus, stock options and/or such other bonuses, in such amounts and on such
      terms as the CEO may determine and the Board of Directors of the Company (the
      “Board”) or the Compensation Committee of the Board (the "Compensation
      Committee") has approved. In the event of the termination of the employment
      of
      the Employee for (i) any reason other than Cause or (ii) by reason of
      Constructive Discharge, the Employee shall be entitled to receive an amount
      equal to the bonus which would otherwise have been payable to the Employee
      under
      any established Company incentive plans, if any, in effect at the time in
      respect of the year during which such termination occurs, pro rated for the
      portion of the year in which such termination occurs.

    


    (b). Signing.
      As an
      incentive to execute this Agreement, the Employee shall be granted as of the
      date hereof options to purchase Class A Common Stock as detailed on Exhibit
      A
      hereto.

    


    
      
        1

      

      
         

        
          

        

      

      
         

      

    

    5.
      Employee
      Benefits.
      The
      Employee shall have the right to participate in all benefit plans and programs
      generally made available to executives of the Company, including without
      limitation health, dental, life, and disability insurance, vacation programs,
      retirement plans, employee stock plans or benefits and profit sharing
      plans.

    


    6.
      Reimbursement
      of Expenses.
      The
      Company shall reimburse the Employee for all reasonable and necessary expenses
      incurred by him in the performance of his duties hereunder, following his
      appropriate substantiation thereof, in each case in accordance with the
      Company's policies as in effect from time to time.

    


    7.
      Outside
      Consulting.
      With
      prior notification to the Compensation Committee, the Employee may provide
      consulting services to third parties. The Employee may serve as a consultant
      in
      any field which does not directly compete with the Company, including without
      limitation, medical diagnostic products, provided,
      that in
      no event shall such proposed consulting interfere with the operations of the
      Company or the performance of the Employee's duties under this Agreement more
      particularly described in Section 1 hereof. If the Compensation Committee shall
      determine that any consulting activity engaged in by the Employee is not
      permitted hereunder, the Compensation Committee shall provide the Employee
      a
      written statement setting forth the basis for its determination. The Employee
      agrees that in no event will he devote more than two days per month in the
      aggregate in his capacity as a consultant to third parties.

    


    The
      Company acknowledges that the Employee is a principal of and participant in
      K&R Associates, that K&R Associates owns rights to certain elements of
      the Company's technology as it relates to the disinfection of contact lenses,
      and that the Employee is currently providing consulting services to K&R
      Associates and Ciba-Vision Corporation in the field of contact lens
      disinfection. The Company hereby consents to the Employee's aforementioned
      consulting activities.

    


    8.
      Severance
      and Other Arrangements.

    


    (a) Generally.
      In the
      event of the termination of the employment of the Employee by the Company
      without Cause, or by the Employee as the result of a Constructive Discharge,
      the
      Company shall:

    


    (i). Continue
      to pay the Employee, in accordance with the Company's normal payroll practices
      and policies in effect from time to time (including any required withholding),
      his base salary at the monthly base salary rate in effect for such Employee
      immediately prior to the termination of his employment) for a period of twelve
      (12) months following the termination of the Employee's employment.

    


    (ii). Provide
      the Employee with health, dental, life and disability insurance substantially
      similar to that which the Employee was receiving immediately prior to the
      termination of his employment until the earlier of: (x) the date which is twelve
      (12) months following the termination of the Employee’s employment; or (y) the
      date the Employment begins receiving substantially similar insurance from a
      subsequent employer. The end of the period during which severance is paid,
      rather than the termination date of employment, will be deemed to be a
      "qualifying event" which would entitle the Employee to acquire at his own
      expense during the minimum election period permitted by the Consolidated Omnibus
      Budget Reconciliation Act (commonly known as "COBRA") or such law as may then
      be
      in effect continuation of coverage under the Company's health and benefit
      plans.

    


    
      
        2

      

      
         

        
          

        

      

      
         

      

    

    (iii). Provide
      that the Employee shall have three (3) years to exercise any then-exercisable,
      unexpired installments of any stock options held by the Employee on the
      Employee's last date of employment or if later, the date when the Employee
      ceases to be a member of the Board.

    


    (b) Disability.
      In the
      event of any illness (mental or physical) or accident which renders the Employee
      unable to perform his duties and responsibilities, the Company shall, during
      the
      first 3 months of any such illness or after such accident, as the case may
      be,
      continue to pay the Employee's base salary hereunder; and thereafter, during
      any
      such period in excess of 3 months the Company shall supplement any disability
      benefits which the Employee is entitled to receive under the Company's
      disability plans then in effect, for a period of up to 9 additional months,
      in
      an amount such that, together with any amounts the Employee is entitled to
      receive under such plans, the Employee shall receive an aggregate amount equal
      to his base salary during such period.

    


    (c). Change
      of Control.
      Upon a
      Change of Control, all stock options held by the Employee shall vest and become
      immediately exercisable in full.

    


    9.
      Non-competition.
      During
      the term of this Agreement and thereafter the Employee will not directly or
      indirectly, participant in any business that utilizes the Company's proprietary
      information, know-how or trade secrets in any field of activity, including
      specifically those fields that are competitive with the business of the Company,
      nor will the Employee interfere with the contractual relations between the
      Company and any of its employees or partners. The provisions of this Section
      shall not prohibit the ownership of stock in any entity whose stock is publicly
      traded or 5% or less of the outstanding stock of any entity whose stock is
      not
      publicly traded.

     

          10.
Ownership
      of Developments.
      The
      Employee agrees that any work or research, or the result thereof including
      without limitation, inventions, processes, formula, data, information, programs,
      systems, software or know-how (hereinafter collectively "Proprietary
      Information") made, conceived or developed by Employee, alone or in connection
      with others, prior to or during the term of his employment under this Agreement,
      whether during or out of the usual hours of employment, which are related to
      the
      business, research and development work within the Company's Field of Operation
      are the sole and exclusive property of the Company. The Employee agrees that
      he
      will fully assign the foregoing to Company. The Employee further agrees to
      disclose all Proprietary Information completely and in writing to the CEO.
      To
      the extent of the Employee's interest therein, all papers and records of every
      kind, relating to Proprietary Information included within the terms of this
      Agreement, which shall at any time come into the possession of the Employee
      shall be the sole and exclusive property of the Company and shall be surrendered
      to the Company upon termination of the Employee's employment by the Company
      or
      upon the Company's request at any time either during or after the termination
      of
      such employment.

    


    
      
        3

      

      
         

        
          

        

      

      
         

      

    

    11.
      Confidential
      Information.
      Employee covenants and agrees with the Company that Employee will not during
      or
      after the term of employment disclose to anyone (except to the extent reasonably
      necessary for Employee to perform his duties hereunder) any Proprietary
      Information or other confidential information concerning the business or affairs
      of the Company or of any of its affiliates or subsidiaries or any of their
      customers which Employee may have acquired in the course of or as incident
      to
      Employee's employment or prior dealings with the Company or with any of its
      affiliates, including without limitation, customers lists, or business trade
      secrets of, or methods or techniques used by Employee or any of its affiliates
      in or about their respective business. Nothing contained in this paragraph
      shall
      impair or restrict the right of Employee to use or disclose any information
      already in the public domain.

    


    12.
      Termination.
      Notwithstanding the provisions of Section 2 of this Agreement, the Company
      shall
      have the right to terminate the employment of the Employee for Cause or as
      a
      result of his death or Permanent Disability, and the Employee shall have the
      right to terminate his employment as the result of a Constructive Discharge,
      in
      each case without violation of the terms of this Agreement.

    


    In
      no
      event shall the Company terminate this Agreement without Cause, unless the
      Employee shall have been granted a prior meeting with, and an opportunity to
      be
      heard by, the Board, and a majority of the members of the Board shall have
      determined that the Employee has (i) failed to fulfill his duties to the Company
      in a satisfactory manner or (ii) engaged in conduct detrimental to the
      Company.

    


    13.
      Certain
      Definitions.
      For
      purposes of this Agreement, the following terms shall have the meanings
      indicated:

    


    "Cause"
      means (i) the deliberate dishonesty of the Employee with respect to the Company
      or any subsidiary or affiliate thereof; (ii) conviction of the Employee of
      a felony punishable by imprisonment for more than one year or a fine of $100,000
      or more; or (iii) the willful failure of Employee to perform the material
      lawful duties assigned to him under this Agreement as determined by the Board,
      which failure the Employee shall not have substantially remedied within 30
      days
      after receiving written notice from the Company describing such failure in
      reasonable detail.

    



    
      
        4

      

      
         

        
          

        

      

      
         

      

    


    "Change
      of Control" means (i) the sale, lease, transfer or other disposition by the
      Company of all or substantially all of its assets in a single transaction or
      a
      series of related transactions; (ii) the merger or consolidation of the Company
      with another entity in which the stockholders of the Company immediately prior
      to such merger or consolidation hold less than 50% of the outstanding voting
      stock of the surviving or resulting corporation immediately following such
      transaction; or (iii) the sale or exchange (to or with any person or entity
      other than the Company) by the stockholders of the Company of more than 50%
      of
      the outstanding voting stock of the Company in a single transaction or series
      of
      related transactions.

    


    "Company's
      Field of Operation" means all therapeutic and/or anti-microbial products,
      including without limitation iodine-based products, and any additional products
      or services developed, marketed, distributed, planned, sold or otherwise
      provided by the Company from time to time prior to or during the term of this
      Agreement.

    


    "Constructive
      Discharge" means the termination of employment by the Employee on the grounds
      that (a)  there has been a decrease in the total annual compensation
      payable by the Company to the Employee, other than as a result of a material
      decrease in compensation payable to the Employee and to all other employees
      of
      similar rank and stature of the Company on the basis of the financial
      performance of the Company, provided,
      however,
      that
      nothing contained herein shall be construed as giving the Company the right
      to
      decrease the Employee's base salary specified in Section 3 hereof or (d) the
      relocation of the Company's business to a site more than twenty-five (25) miles
      from the Employee's residence.

    


    "Permanent
      Disability" means illness (mental or physical) or accident which renders the
      Employee unable to perform his duties and responsibilities for a period of
      six
      consecutive months or six months in any twelve-month period, and which is
      confirmed to the Board as continuing at the end of such period by expert medical
      opinion. Nothing contained in this Agreement shall affect the right of the
      Employee to receive long-term disability benefits under any long-term disability
      insurance plan(s) of the Company then in effect.

    


    1.
      Miscellaneous.

    


    (a) Notices.
      Any
      notice hereunder shall be effective if delivered personally, by registered
      or
      certified mail, return receipt requested, by overnight or special courier with
      a
      signed receipt, or by facsimile where confirmation of receipt may be verified,
      at the addresses set forth in the preamble to this Agreement or to any other
      properly noticed address given by the parties to each other.

    



    
      
        5

      

      
         

        
          

        

      

      
         

      

    


    (b) Governing
      Law.
      This
      Agreement shall be construed and governed by the law of the Commonwealth of
      Massachusetts.

    


    (c) Amendments.
      This
      Agreement may not be modified or amended orally. All amendments shall be in
      writing and signed by the Company and Employee.

    


    (d) Assignments.
      This
      Agreement may not be assigned in whole or in part by the Employee. This
      Agreement may be assigned by the Company to any entity acquiring or succeeding
      to control of ownership of the Company or substantially all of the assets of
      the
      Company. This Agreement shall be binding upon and inure to the benefit of the
      parties and to their permitted successors and assigns.

    


    (e) Entire
      Agreement.
      This
      Agreement constitutes the entire understanding of the parties with respect
      to
      its subject matter and supersedes any other agreements between the parties
      with
      respect to such subject matter.

    


    (f) Enforceability.
      If any
      portion or provision of this Agreement shall to any extent be declared illegal
      or unenforceable by a court of competent jurisdiction, then the remainder of
      this Agreement, or the application of such portion or provision in circumstances
      other than those as to which it is so declared illegal or unenforceable, shall
      not be affected thereby, and each portion and provisions of this Agreement
      shall
      be valid and enforceable to the fullest extent permitted by law.

    


    (g) Waiver.
      No
      waiver of any provision hereof shall be effective unless made in writing and
      signed by the waiving party. The failure of any party to require the performance
      of any term or obligation of this Agreement, or the waiver by any party of
      any
      breach of this Agreement, shall not prevent any subsequent enforcement of such
      term or obligation or be deemed a waiver of any subsequent breach.

    


    (h) Arbitration.
      Any
      controversy or claim which arises out of or relating to this Agreement, or
      the
      breach thereof (other than
      controversies or claims with regard to Sections 9, 10 or 11 of this Agreement),
      shall be settled by arbitration in accordance with the Rules of the American
      Arbitration Association then in effect. The controversy or claim shall be
      submitted to three arbitrators, one of whom shall be chosen by the Employee,
      one
      of whom shall be chosen by the Company, and one of whom shall be chosen by
      the
      two so selected. The party desiring arbitration shall give written notice to
      the
      other party of its desire to arbitrate the particular matter in question, naming
      the arbitrator selected by it. If the other party shall fail within a period
      of
      15 days after such notice shall have been given to reply in writing naming
      the
      arbitrator chosen as above provided, or if the two arbitrators selected by
      the
      parties shall fail within 15 days after their selection to agree upon the third
      arbitrator, then either party may apply to the American Arbitration Association
      for the appointment of an arbitrator to fill the place so remaining vacant.
      The
      decision of any two of the arbitrators shall be final and binding upon the
      parties hereto. Judgment upon the award rendered by the arbitrators may be
      entered in any court having jurisdiction thereof.

    


    
      
        6

      

      
         

        
          

        

      

      
         

      

    

    The
      proceedings shall be held in Boston, Massachusetts. The arbitrators shall have
      no power to award punitive or exemplary damages or to ignore or vary the terms
      of this Agreement, and shall be bound to apply controlling law. Arbitration
      shall be binding and the remedy for the settlement of the controversy or claims
      (except as set forth in the preceding paragraph of this Section).

    


    (i) Certain
      Remedies.
      The
      restrictions contained in Sections 9, 10 and 11 of this Agreement are necessary
      for the protection of the business and goodwill of the Company and are
      considered by the Employee to be reasonable for such purpose. Without limiting
      the remedies available to the Company, the Employee acknowledges that a breach
      of any of the covenants contained in any of such Sections 9, 10 and 11 would
      result in irreparable injury to the Company for which there might be no adequate
      remedy at law, and that, in the event of such a breach or threat thereof, the
      Company shall be entitled to obtain a temporary restraining order and/or such
      other equitable relief as may be required to enforce specifically any of the
      covenants of such Sections 9, 10 and 11. The provisions of such Sections 9,
      10
      and 11 shall survive the termination of this Agreement and shall continue
      thereafter indefinitely in full force and effect in accordance with their
      respective terms. 

    


    IN
      WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
      the
      date and year first above written.

    


    SYMBOLLON
      PHARMACEUTICALS, INC.

    


    


    


    By:
      /c/ Paul C. Desjourdy___________________________

    Paul
      C.
      Desjourdy

    President

    


    


    /c/
      Jack H. Kessler_______________________________

    Jack
      H.
      Kessler

    



    
      
        7

      

      
         

        
          

        

      

      
         

      

    


    


    


    
      	 	
              Exhibit
                A

            	 
	 	 	 
	 	
              Option
                Grant

            	 
	 	 	 
	 	 	 
	
              Number
                of Shares

            	
                                          
                Exercise Price

            	
              Vesting
                Date

            
	 	 	 
	
              140,000

            	
              Fair
                Market Value*

            	
              First
                Anniversary

            
	 	 	 
	
              140,000

            	
              Fair
                Market Value*

            	
              Second
                Anniversary

            
	 	 	 
	
              140,000

            	
              Fair
                Market Value*

            	
              Third
                Anniversary

            
	 	 	 
	
                420,000

            	 	 


    

    


    


    *
      Fair
      Market Value of the Class A Common Stock, as determined under the Company’s 1993
      Employee S