EMPLOYMENT AGREEMENT BETWEEN BIOSPHERE MEDICAL AND PETER C. SUTCLIFFE



 Exhibit 10.12 
  
 BIOSPHERE MEDICAL, INC. 
  
 EMPLOYMENT AGREEMENT 
  
 THIS EMPLOYMENT AGREEMENT (the “Agreement”), made effective as of March 25, 2004, is entered into by BioSphere Medical, Inc., a Delaware
corporation (the “Company”), and Peter C. Sutcliffe (the “Employee”). 
  
 The Company desires to employ the Employee, and the Employee desires to be employed by the Company. In consideration of the mutual covenants and promises contained in this Agreement and in that certain Executive
Retention Agreement dated March 25, 2004 between the Company and the Employee, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties to this Agreement, the parties agree as follows:

  
 1. Term of Employment. The Company hereby agrees to
employ the Employee, and the Employee hereby accepts employment with the Company, upon the terms set forth in this Agreement, for the period commencing on March 25, 2004 (the “Commencement Date”) and ending on March 25, 2005. The
Employment Period shall be automatically extended for additional periods of one year unless either party, within the 60 day period prior to the expiration of the initial term or any extension term, provides written notice to the other party that
such extension shall not occur (the “Non-Renewal Notice”) (such period, as it may be extended, the “Employment Period”), unless sooner terminated in accordance with the provisions of Section 4. 
  
 2. Title; Capacity. The Employee shall serve as Vice President,
Operations. The Employee shall be based at the Company’s headquarters in Rockland, Massachusetts. The Employee shall be subject to the supervision of, and shall have such authority as is delegated to the Employee by, the Board of Directors (the
“Board”) or such officer of the Company as may be designated by the Board. 
  
 The Employee hereby accepts such employment and agrees to undertake the duties and responsibilities inherent in such position and such other duties and responsibilities as the Board or its designee shall from time to
time reasonably assign to the Employee. The Employee agrees to devote his entire business time, attention and energies to the business and interests of the Company during the Employment Period. The Employee agrees to abide by the rules, regulations,
instructions, personnel practices and policies of the Company and any changes therein which may be adopted from time to time by the Company. 
  
 3. Compensation and Benefits. 
  
 3.1 Salary. The Company shall pay the Employee, in periodic installments in accordance with the Company’s customary payroll
practices, an annual base salary of $183,360 for the one-year period commencing on the Commencement Date. Such salary shall be subject to increases thereafter as may be determined from time to time by the Board. 
  
 3.2 Fringe Benefits. The Employee shall be entitled
to participate in all bonus and benefit programs that the Company establishes and makes available to its employees, if any, to the extent that Employee’s position, tenure, salary, age, health and other qualifications 

  









 
make him eligible to participate. The Employee shall be entitled to three (3) weeks paid vacation per year, to be taken at such times as may be approved by
the Board or its designee. 
  
 3.3
Reimbursement of Expenses. The Company shall reimburse the Employee for all reasonable travel, entertainment and other expenses incurred or paid by the Employee in connection with, or related to, the performance of his duties,
responsibilities or services under this Agreement, in accordance with policies and procedures, and subject to limitations, adopted by the Company from time to time. 
  
 3.4 Withholding. All salary, bonus and other compensation payable to the Employee shall be subject to
applicable withholding taxes. 
  
 4. Termination of Employment
Period. The employment of the Employee by the Company pursuant to this Agreement shall terminate upon the occurrence of any of the following: 
  
 4.1 At the end of any year of the Employment Period in which either party shall have delivered a Non-Renewal Notice; 
  
 4.2 At the election of the Company, for Cause (as defined
below), immediately upon written notice by the Company to the Employee, which notice shall identify the Cause upon which the termination is based. For the purposes of this Section 4.2, “Cause” shall mean (a) the Employee’s willful and
continued failure to substantially perform his reasonable assigned duties (other than any such failure resulting from incapacity due to physical or mental illness), which failure is not cured within 30 days after a written demand for substantial
performance is received by the Employee from the Board which specifically identifies the manner in which the Board believes the Employee has not substantially performed the Employee’s duties; or (b) the Employee’s willful engagement in
illegal conduct or gross misconduct which is materially and demonstrably injurious to the Company. 
  
 For purposes of this Section 4.2, no act or failure to act by the Employee shall be considered “willful” unless it is done, or omitted to be
done, in bad faith and without reasonable belief that the Employee’s action or omission was in the best interests of the Company. 
  
 4.3 Upon the death or disability of the Employee. As used in this Agreement, the term “disability” shall mean the
Employee’s absence from full-time performance of the Employee’s duties with the Company for 180 consecutive calendar days as a result of incapacity due to mental or physical illness which is determined to be total and permanent by a
physician selected by the Company or its insurers and acceptable to the Employee or the Employee’s legal representative; 
  
 4.4 At the election of either party, upon not less than 60 days’ prior written notice of termination. 
  

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 5. Effect of Termination. 
  
 5.1 Payments Upon Termination. 
  
 (a) In the event the Employee’s employment is terminated pursuant to Section 4.1 because the Employee
has elected not to renew the Agreement or is terminated pursuant to Section 4.2, Section 4.3 or by the Employee pursuant to Section 4.4, the Company shall pay to the Employee the compensation and benefits otherwise payable to him under Section 3
through the last day of his actual employment by the Company. 
  
 (b) In the event the Employee’s employment is terminated pursuant to Section 4.1 because the Company has elected not to renew the Agreement, or is terminated by the Company pursuant to Section 4.4, the Company
shall pay to the Employee in a lump-sum payment an amount equivalent to his annual salary as in effect on the date of termination and the amount of the annual bonus paid to him for the fiscal year immediately preceding the date of termination and
continue to provide to the Employee the other benefits owed to him under Section 3.2 (to the extent such benefits can be provided to non-employees, or to the extent such benefits cannot be provided to non-employees, then the cash equivalent thereof)
until the date 12 months after the date of termination. The payment to the Employee of the amounts payable under this Section 5.1(b) (i) shall be contingent upon the execution by the Employee of a release in a form reasonably acceptable to the
Company and (ii) shall constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 5.1(b). 
  
 5.2 Survival. The provisions of Sections 5.1(b), 6 and 7 shall survive the termination of this
Agreement. 
  
 6. Non-Competition and Non-Solicitation.

  
 6.1 Restricted Activities. While the
Employee is employed by the Company and for a period of one year after the termination or cessation of such employment for any reason, the Employee will not directly or indirectly: 
  
 (a) Engage in any business or enterprise (whether as owner, partner, officer, director, employee,
consultant, investor, lender or otherwise, except as the holder of not more than 1% of the outstanding stock of a publicly-held company) that is competitive with the Company’s business in the field of embolotherapy, including but not limited to
any business or enterprise that develops, manufactures, markets, licenses, sells or provides any product or service in the field of embolotherapy that competes with any product or service in the field of embolotherapy developed, manufactured,
marketed, licensed, sold or provided, or planned to be developed, manufactured, marketed, licensed, sold or provided, by the Company or any of its subsidiaries while the Employee was employed by the Company; or 
  
 (b) Either alone or in association with others (i) solicit,
or permit any organization directly or indirectly controlled by the Employee to solicit, any employee of the Company to leave the employ of the Company, or (ii) solicit for employment, hire or engage as an independent contractor, or permit any
organization directly or indirectly controlled by the 

  

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Employee to solicit for employment, hire or engage as an independent contractor, any person who was employed by the Company at the time of the termination or
cessation of the Employee’s employment with the Company; provided, that this clause (ii) shall not apply to the solicitation, hiring or engagement of any individual whose employment with the Company has been terminated for a period of
six months or longer. 
  
 6.2 Extension.
If the Employee violates the provisions of Section 6.1, the Employee shall continue to be bound by the restrictions set forth in Section 6.1 until a period of one year has expired without any violation of such provisions. 
  
 6.3 Interpretation. If any restriction set forth in
Section 6.1 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over
the maximum period of time, range of activities or geographic area as to which it may be enforceable. 
  
 6.4 Equitable Remedies. The restrictions contained in this Section 6 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. The Employee agrees that any breach of this Section 6 is likely to cause the Company substantial and irrevocable damage, which is difficult to measure. Therefore,
in the event of any such breach or threatened breach, the Employee agrees that the Company, in addition to such other remedies which may be available, shall have the right to obtain an injunction from a court restraining such a breach or threatened
breach and the right to specific performance of the provisions of this Section 6 and the Employee hereby waives the adequacy of a remedy at law as a defense to such relief. 
  
 7. Proprietary Information and Developments. 
  
 7.1 Proprietary Information. 
  
 (a) The Employee agrees that all information, whether or not in writing, of a private, secret or
confidential nature concerning the Company’s business, business relationships or financial affairs (collectively, “Proprietary Information”) is and shall be the exclusive property of the Company. By way of illustration, but not
limitation, Proprietary Information may include inventions, products, processes, methods, techniques, formulas, compositions, compounds, projects, developments, plans, research data, clinical data, financial data, personnel data, computer programs,
customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The Employee will not disclose any Proprietary Information to any person or entity other than employees of the Company or use the same
for any purposes (other than in the performance of his duties as an employee of the Company) without written approval by an officer of the Company, either during or after his employment with the Company, unless and until such Proprietary Information
has become public knowledge without fault by the Employee or unless required by law. 
  

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 (b) The Employee agrees that all files, letters, memoranda, reports, records, data,
sketches, drawings, laboratory notebooks, program listings, or other written, photographic, or other tangible material containing Proprietary Information, whether created by the Employee or others, which shall come into his custody or possession,
shall be and are the exclusive property of the Company to be used by the Employee only in the performance of his duties for the Company. All such materials or copies thereof and all tangible property of the Company in the custody or possession of
the Employee shall be delivered to the Company, upon the earlier of (i) a request by the Company or (ii) termination of his employment. After such delivery, the Employee shall not retain any such materials or copies thereof or any such tangible
property. 
  
 (c) The Employee agrees that his
obligation not to disclose or to use information and materials of the types set forth in paragraphs (a) and (b) above, and his obligation to return materials and tangible property, set forth in paragraph (b) above, also extends to such types of
information, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who may have disclosed or entrusted the same to the Company or to the Employee. 
  
 7.2 Developments. 
  
 (a) The Employee will make full and prompt disclosure to the
Company of all inventions, improvements, discoveries, methods, developments, software, and works of authorship, whether patentable or not, which are created, made, conceived or reduced to practice by him or under his direction or jointly with others
during his employment by the Company, whether or not during normal working hours or on the premises of the Company (all of which are collectively referred to in this Agreement as “Developments”). 
  
 (b) The Employee agrees to assign and does hereby assign to
the Company (or any person or entity designated by the Company) all his right, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications. However, this paragraph (b) shall not
apply to Developments which do not relate to the business or research and development conducted or planned to be conducted by the Company at the time such Development is created, made, conceived or reduced to practice and which are made and
conceived by the Employee not during normal working hours, not on the Company’s premises and not using the Company’s tools, devices, equipment or Proprietary Information. The Employee understands that, to the extent this Agreement shall be
construed in accordance with the laws of any state which precludes a requirement in an employee agreement to assign certain classes of inventions made by an employee, this paragraph (b) shall be interpreted not to apply to any invention which a
court rules and/or the Company agrees falls within such classes. The Employee also hereby waives all claims to moral rights in any Developments. 
  
 (c) The Employee agrees to cooperate fully with the Company, both during and after his employment with the Company, with respect to the
procurement, maintenance and enforcement of copyrights, patents and other intellectual property rights (both in the United States and foreign countries) relating to Developments. The Employee shall sign all papers, including, without limitation,
copyright applications, patent applications, declarations, oaths, 

  

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formal assignments, assignments of priority rights, and powers of attorney, which the Company may deem necessary or desirable in order to protect its rights
and interests in any Development. The Employee further agrees that if the Company is unable, after reasonable effort, to secure the signature of the Employee on any such papers, any executive officer of the Company shall be entitled to execute any
such papers as the agent and the attorney-in-fact of the Employee, and the Employee hereby irrevocably designates and appoints each executive officer of the Company as his agent and attorney-in-fact to execute any such papers on his behalf, and to
take any and all actions as the Company may deem necessary or desirable in order to protect its rights and interests in any Development, under the conditions described in this sentence. 
  
 7.3 United States Government Obligations. The Employee acknowledges that the Company from time to
time may have agreements with other parties or with the United States Government, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work under such agreements or regarding the
confidential nature of such work. The Employee agrees to be bound by all such obligations and restrictions, which are made known to the Employee, and to take all appropriate action necessary to discharge the obligations of the Company under such
agreements. 
  
 7.4 Equitable Remedies.
The restrictions contained in this Section 7 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. The Employee agrees that any breach of this Section 7 is
likely to cause the Company substantial and irrevocable damage, which is difficult to measure. Therefore, in the event of any such breach or threatened breach, the Employee agrees that the Company, in addition to such other remedies which may be
available, shall have the right to obtain an injunction from a court restraining such a breach or threatened breach and the right to specific performance of the provisions of this Section 7 and the Employee hereby waives the adequacy of a remedy at
law as a defense to such relief. 
  
 8. Other Agreements.
The Employee represents that his performance of all the terms of this Agreement and the performance of his duties as an employee of the Company do not and will not breach any agreement with any prior employer or other party to which the Employee is
a party (including without limitation any nondisclosure or non-competition agreement). 
  
 9. Miscellaneous. 
  
 9.1 Notices. Any notices delivered under this Agreement shall be deemed duly delivered four business days after it is sent by registered or certified mail, return receipt requested, postage prepaid, or one
business day after it is sent for next-business day delivery via a reputable nationwide overnight courier service, in each case to the address of the recipient set forth in the introductory paragraph hereto. Either party may change the address to
which notices are to be delivered by giving notice of such change to the other party in the manner set forth in this Section 9.1. 
  

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 9.2 Pronouns. Whenever the context may require, any pronouns used in this
Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular forms of nouns and pronouns shall include the plural, and vice versa. 
  
 9.3 Entire Agreement. This Agreement constitutes the entire agreement between the parties and
supersedes all prior agreements and understandings, whether written or oral, relating to the subject matter of this Agreement. 
  
 9.4 Amendment. This Agreement may be amended or modified only by a written instrument executed by both the Company and the
Employee. 
  
 9.5 Governing Law. This
Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts (without reference to the conflicts of laws provisions thereof). Any action, suit or other legal proceeding arising under or relating to
any provision of this Agreement shall be commenced only in a court of the Commonwealth of Massachusetts (or, if appropriate, a federal court located within Massachusetts), and the Company and the Employee each consents to the jurisdiction of such a
court. The Company and the Employee each hereby irrevocably waive any right to a trial by jury in any action, suit or other legal proceeding arising under or relating to any provision of this Agreement. 
  
 9.6 Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of both parties and their respective successors and assigns, including any corporation with which, or into which, the Company may be merged or which may succeed to the Company’s assets or business,
provided, however, that the obligations of the Employee are personal and shall not be assigned by him. Notwithstanding the foregoing, if the Company is merged with or into a third party which is engaged in multiple lines of business, or if a third
party engaged in multiple lines of business succeeds to the Company’s assets or business, then for purposes of Section 6.1(a), the term “Company” shall mean and refer to the business of the Company as it existed immediately prior to
such event and as it subsequently develops and not to the third party’s other businesses. 
  
 9.7 Waivers. No delay or omission by the Company in exercising any right under this Agreement shall operate as a waiver of that or
any other right. A waiver or consent given by the Company on any one occasion shall be effective only in that instance and shall not be construed as a bar or waiver of any right on any other occasion. 
  
 9.8 Captions. The captions of the sections of this
Agreement are for convenience of reference only and in no way define, limit or affect the scope or substance of any section of this Agreement. 
  
 9.9 Severability. In case any provision of this Agreement shall be invalid, illegal or otherwise unenforceable, the validity,
legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby. 
  

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 THE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND AGREES TO ALL
OF THE PROVISIONS IN THIS AGREEMENT. 
  
 IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the day and year set forth above. 
  

			
	BIOSPHERE MEDICAL, INC.
		
	By:	 	/s/    Paul A. Looney
	 	 	

	 	 	 Paul A. Looney
 President and CEO



  

	
	EMPLOYEE
	
	/s/    Peter C. Sutcliffe
	

	PETER C. SUTCLIFFE


  

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