EMPLOYMENT AGREEMENT
AGREEMENT dated as of October 15, 1996 between UNIVEC, Inc., a Delaware
corporation (the "Company"), having its principal office at 000 Xxxxxxxx Xxxxxx,
Xxxxxx Xxxx, Xxx Xxxx 00000, and Xxxxx Xxxxxx, an individual (the "Employee")
residing at 00 Xxxxxx Xxxxxx, Xxxxxxxxx Xx. 00, Xxx Xxxx, Xxx Xxxx 00000.
WHEREAS, the Employee has been employed by the Company as Chief Financial
Officer since October 1995;
WHEREAS, the Company desires to continue the employment of the Employee and
Employee agrees to continue his employment with the Company on the terms and
conditions herein provided;
NOW THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereby agree as follows:
1. Employment and Duties. During the term of this Agreement, the Employee
shall serve as the Company's Chief Financial Officer, and in such capacity shall
be the principal financial and accounting officer of the Company, and Employee
shall perform such other duties consistent with his position as may be assigned
to him from time to time by the Company's Chief Executive Officer, to whom he
shall report.
2. Term. Subject to the termination provisions of Section 5 hereof,
Employee's employment by the Company hereunder is for a term commencing on the
date hereof and ending on September 30, 1997 (the "Employment Term").
3. Compensation.
(a) Base Salary. During the Employment Term, the Company shall pay the
Employee for his services hereunder at a base salary of $120,000 per annum,
inclusive of health benefits. The base salary (after deduction for health
insurance premiums) shall be paid to the Employee in appropriate installments in
accordance with the Company's usual and customary payroll practices for its
executive officers.
(b) Stock Option. As an inducement to his entering into this Agreement, the
Company agrees to recommend to the Board of Directors that the Company grant the
Employee incentive stock options to purchase 20,513 shares of Common Stock under
a stock option plan to be adopted by the Company, (the "Plan") at an exercise
price of $3.50 per share, which options may be exercised during the five year
period following the date of grant, or the earlier termination of his employment
with the Company in accordance with the provisions of the Plan.
4. Benefits. Employee shall be entitled to participate in any and all
benefit plans of the Company made available to executive officers of the
Company.
5. Reimbursement. During the Employment Term, the Company shall reimburse
the Employee for all reasonable and necessary business expenses incurred and
paid directly by him in the performance of his duties hereunder, upon submission
to the Company of reasonably detailed expense reports and appropriate vouchers
and/or receipts prepared in accordance with the applicable provisions and
regulations of the Internal Revenue Code of 1986, as amended.
6. Termination. Notwithstanding any provision of this Agreement to the
contrary, the Employee's employment hereunder shall be subject to earlier
termination as follows:
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(a) Death. This Agreement shall terminate immediately upon the death of the
Employee.
(b) Cause. The Company may terminate Employee's employment hereunder for
"cause" (as hereinafter defined) immediately upon written notice of termination
to the Employee. For purposes of this Paragraph 6(b), "cause" means: (i) willful
and gross misconduct with respect to the business or affairs of the Company;
(ii) willful and gross neglect of duties or willful and gross failure to act
which adversely affects the business or affairs of the Company; (iii) gross
negligence in the performance of the Employee's duties hereunder; (iv) fraud,
embezzlement or criminal conduct (other than misdemeanors and motor vehicle
related incidents), whether or not directed against the Company; or (v) failure
of Employee to cure or remedy any alleged violation of Employee's obligations
under Paragraphs 7, 8, 9 and 10 of this Agreement after ten (10) days prior
written notice from the Company.
(c) Right to Compensation Upon Termination. Except as otherwise
specifically provided herein or as accrued for services performed through the
date of termination, all of Employee's rights to compensation hereunder shall
cease to exist effective upon the date of termination.
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7. Developments. The Employee agrees promptly to disclose in writing to the
Company any invention or discovery made by him during his employment with the
Company, whether during or after working hours, that relates to (i) any
disposable medical devices for drug delivery, including but not limited to
hypodermic needles, (ii) inventions developed for the Company through projects
participated in by Employee and (iii) processes, including equipment used to
produce items covered by clauses (i) and (ii) (the items referred to in clauses
(i), (ii) and
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(iii) being hereinafter referred to collectively as "Covered Inventions"), and
such inventions and discoveries shall be the Company's sole property. Upon the
Company's request, whether during or after the term of his employment, Employee
shall execute and assign to the Company all applications for letters patent and
copyrights of the United States and such foreign countries as the Company may
designate relating to Covered Inventions, and Employee shall execute and deliver
to the Company such other instruments as the Company deems necessary to vest in
the Company the sole ownership of all exclusive rights in and to such inventions
and discoveries, as well as the patents and/or copyrights. If services in
connection with applications for patents and/or copyrights are performed by
Employee at the Company's request after the termination of his employment, the
Company shall pay him reasonable compensation for such services rendered after
termination of this Agreement.
8. Non-Competition. During the Employment Term and for a period of twelve
(12) months after the termination of this Agreement, however occasioned,
Employee shall not within the United States, Canada, Mexico or Japan, directly
or indirectly, as principal, agent, stockholder, joint venturer, investor,
employee, consultant, officer, director, partner, adviser, guarantor or in any
other capacity, render services or provide advice relating to, or otherwise
engage in or assist others in engaging in, any Competitive Business, or own or
control any interest in any entity which is so engaged. As used herein,
"Competitive Business" means the design, manufacture, marketing, sale or
distribution of any Covered Inventions. Anything to the contrary in the
foregoing notwithstanding, Employee may own, beneficially or legally, up to one
percent (1%) of the outstanding securities of any organization registered under
Section 12 of the Securities Exchange Act of 1934, as amended, or which are
otherwise publicly traded.
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9. Non-Solicitation. The Employee agrees that he will not during the term
of this Agreement and for a period of one (1) year following the termination of
his employment with the Company for any reason, directly or indirectly, solicit
or contact any employee of the Company with a view to encouraging such employee
to leave the employ of the Company for the purpose of being hired by him, or any
employer affiliated with him, or any competitor of the Company.
10. Confidentiality. Executive agrees that he will not, during the term of
this Agreement and thereafter, use or disclose to any individual, firm,
corporation, partnership, business trust, or other business entity (any of the
foregoing being hereinafter referred to as a "Person") any confidential or
proprietary information of the Company for any reason or purpose whatsoever, nor
shall he make use of any such confidential or proprietary information for his
own purpose or for the benefit of any Person other than the Company, including
but not limited to any and all patents (issued or pending), designs, drawings,
blueprints, manufacturing processes, specifications, test data, graphics, charts
and all other technical information, currently in existence or subsequently
developed, relating to the Company's research and development activities and
marketing strategy, or information relating to the Company's costs, pricing
practices, customer lists or financial data; except that nothing herein shall be
construed to prohibit him from complying with legal process or using or
disclosing such information if it shall have become public knowledge other than
by or as a result of disclosure by a Person not having a right to make such
disclosure.
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11. Specific Performance. Employee acknowledges that the covenants set
forth in Paragraphs 7, 8, 9 and 10 are reasonable and necessary for the
protection of the Company and that his violation of any of the such provisions
shall cause the Company immediate and irreparable harm and he agrees that in
such event, an injunction restraining him from such violation or threatened
violations may be entered against him in addition to any other remedy available
to the Company. Employee waives any right which he may otherwise have to assert
in any such proceeding that the Company has an adequate remedy at law.
12. Assignment. This Agreement shall be binding and inure to the benefit of
the Company, its successors and permitted assigns and to the Employee, his heirs
and personal representatives. However, neither this Agreement nor any of the
rights of the parties hereunder may be transferred or assigned by either party
hereto, except that if the Company merges or consolidates with or into or sells
or otherwise transfers substantially all its assets to another corporation which
assumes the Company's obligations under this Agreement, the Company may assign
its rights hereunder to that corporation. Any other attempted transfer or
assignment in violation of this paragraph shall be void. Since this is a
contract for personal services, only the Employee is deemed capable of
performing the services contemplated hereunder.
13. Waiver. The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver thereof
or deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. Any waiver of any breach of any
provision of this Agreement shall not constitute a waiver of any other breach of
such provision or any other provision hereof.
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14. Notices. Any demand, notice or other communication under this Agreement
shall be in writing and shall be deemed duly given, and received by the
addressee at the address stated above (or at such other address as may be
specified by a party in a written notice delivered in accordance with the
provisions of this Paragraph) upon receipt, duly evidenced if (i) mailed by
certified or registered mail, return receipt requested, with postage prepaid
(ii) deposited with a recognized overnight courier service such as Federal
Express, UPS or Express Mail, (iii) by hand delivery, or (iv) upon the receipt
of actual written notice.
15. Indemnification. Employee shall be entitled throughout the term of this
Agreement and thereafter to indemnification in respect of any actions or
omissions as an officer of the Company (or any successor pursuant to Paragraph
11 hereof) to the fullest extent permitted by the Delaware General Corporation
Law or other applicable law.
16. Entire Agreement. This Agreement constitutes the entire agreement
between the parties as of the date hereof with respect to Employee's employment
by the Company, superseding all prior or contemporaneous understandings or
agreements, oral or written. This Agreement may not be modified or amended,
except by subsequent written agreement of the parties which specifically states
that it is intended to be a modification, amendment or supplement to this
Agreement, and is signed by all of the parties hereto. No course of dealing or
custom shall be referred to as modifying any of the terms and conditions of this
Agreement.
17. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York applicable to contracts made
and to be performed wholly within that State, and any action, suit or proceeding
which shall be permitted by this Agreement, or by action of law, shall be
commenced in any court having jurisdiction in
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New York County, or in the United States District Court for the Southern
District of New York, and the parties hereto hereby waive any objection to
jurisdiction or venue in any such action, suit or proceeding commenced in such
courts.
18. Arbitration. Except as specifically provided in Paragraph 11 of this
Agreement, any and all claims, disputes and other matters in question with
respect to, arising out of, under or in connection with this Agreement,
including without limitation, the validity, interpretation, performance and
breach hereof, or the rights and privileges provided by, or responsibilities and
obligations under this Agreement, shall be finally decided by arbitration in the
City of New York before three (3) arbitrators in accordance with the Rules of
the American Arbitration Association then in effect, unless the parties mutually
agree otherwise. This Agreement to arbitrate shall be specifically enforceable
under the prevailing arbitration law. The award rendered by the arbitrators
shall be final, and judgment may be entered upon it in accordance with
applicable law in any court having jurisdiction thereof. The parties agree that
the arbitrators will have full authority to award the costs of the arbitration,
including attorneys' fees.
19. Severability. In the event any provision of this Agreement is held
invalid or unenforceable by any court of competent jurisdiction, such holding
shall not invalidate or render unenforceable any other provision hereof. Such
invalid or unenforceable provision shall be amended, if possible, in order to
accomplish the purposes of this Agreement.
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20. Headings. The headings of the various sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed to be a
part of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first above written.
UNIVEC, INC.
By:/s/ Xxxx Xxxxxxxxxx
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Xxxx Xxxxxxxxxx
Chairman of the Board and
Chief Executive Officer
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
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