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Exhibit 10.6
EMPLOYMENT AGREEMENT
ANTEX BIOLOGICS INC.
THIS EMPLOYMENT AGREEMENT (the "Agreement"), made as of
December 1, 1998 is entered into by Antex Biologics Inc., a Delaware
corporation with its principal place of business at 000 Xxxxxxxxxxxx Xxxxx,
Xxxxxxxxxxxx, Xxxxxxxx 00000 (the "Company"), and Xxxxx X. Xxxxxxxxxxxx, Ph.D.,
residing at 0000 Xxxx Xxxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxxxx 00000, (the
"Employee").
WITNESSETH:
WHEREAS, the Company desires to employ the Employee, and the
Employee desires to be employed by the Company;
NOW THEREFORE, in consideration of the mutual covenants and
promises contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the parties hereto,
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 December 1,
1998 (the "Commencement Date") and ending on November 30, 2001 (such period, as
it may be extended, the "Employment Period"), unless sooner terminated in
accordance with the provisions of Section 4 hereof. Upon the third anniversary
of the Commencement Date and upon every third anniversary of the Commencement
Date thereafter, the term of the Employment Period shall be extended
automatically for three (3) additional years unless, at least six months prior
to such anniversary, the Company shall have delivered to the Employee or, at
least six (6) months prior to such anniversary, the Employee shall have
delivered to the Company, written notice that the term of the Employee's
employment hereunder will not be extended.
2. Title; Capacity. The Employee shall serve as Vice
President, Research and Development or in such other position as the Company or
its Board of Directors (the "Board") may determine from time to time. The
Employee shall be based at the Company's headquarters in Gaithersburg,
Maryland, or such place or places in the continental United States as the Board
shall determine. The Employee shall be subject to the supervision of, and shall
have such authority as is delegated to him by, 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
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its designee shall from time to time reasonably assign to him. The Employee
agrees to devote his entire business time, attention and energies to the
business and interests of the Company during the Employment Period. He shall
not engage in any other business activity, except as may be approved by the
Company. 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. The Employee acknowledges
receipt of copies of all such rules and policies committed to writing as of the
date of this Agreement.
3. Compensation and Benefits.
3.1 Salary. The Company shall pay the Employee,
in semi-monthly installments on the 15th and month-end or on the last working
day of such month, an annual base salary (the "Annual Base Salary") of One
Hundred Fifty-five Thousand Dollars ($155,000) for the period commencing on the
Commencement Date. Thereafter, upon each anniversary of the Commencement Date
(including the first anniversary thereof), following an annual review by the
Board, the Board may adjust the Employee's Annual Base Salary as it determines
in its sole discretion; provided, however, that the Board of Directors shall
not reduce the Annual Base Salary.
3.2 Fringe Benefits. The Employee shall be
entitled to participate in all bonus, stock option, benefit and insurance
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 twenty (20) days 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, upon presentation by the Employee of documentation, expense
statements, vouchers and/or such other supporting information as the Company
may request; provided, however, that the amount available for such travel,
entertainment and other expenses may be fixed in advance by the Board.
3.4 Bonus. The Employer shall, subject to
approval of the Board, pay to the Employee an appropriate bonus (the "Bonus")
with respect to each completed year of employment. The Bonus shall be paid to
Employee in one lump sum on or prior to January 31 of each year for the
one-year period of employment, or portion thereof, ending on the preceding
December 31.
4. Employment Termination. The employment of the
Employee by the Company pursuant to this Agreement shall terminate upon the
occurrence of any of the following:
4.1 Expiration of the Employment Period in
accordance with Section 1 hereof and if the term is not extended in accordance
with Section 1 hereof, then the provisions of Section 4.4 hereof shall apply;
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4.2 At the election of the Company, for cause,
immediately upon written notice by the Company to the Employee. For the
purposes of this Section 4.2, cause for termination shall be deemed to exist
upon (a) a good faith finding by the Company of failure of the Employee to
perform his assigned duties for the Company, dishonesty, gross negligence or
misconduct, or (b) the conviction of the Employee of, or the entry of a
pleading of guilty or nolo contendere by the Employee to, any crime involving
moral turpitude or any felony;
4.3 Upon the death or ninety (90) days after the
disability of the Employee. As used in this Agreement, the term "disability"
shall mean the inability of the Employee, due to a physical or mental
disability, for a period of ninety (90) days, whether or not consecutive,
during any three hundred sixty (360)-day period to perform the services
contemplated under this Agreement. A determination of disability shall be made
by a physician satisfactory to both the Employee and the Company, provided that
if the Employee and the Company do not agree on a physician, the Employee and
the Company shall each select a physician and these two together shall select a
third physician, whose determination as to disability shall be binding on all
parties;
4.4 At the election of the Company, upon not less
than six (6) months' prior written notice of termination to the Employee. At
the option of the Company and in lieu of such notice, the Company may pay to
Employee an amount equal to (i) six (6) months' salary computed on the basis of
the then current Annual Base Salary plus (ii) any bonus to which Employee is
entitled. If the Company elects to pay such amount in lieu of notice it shall,
at the expense of the Company, continue Employee's participation in all
benefits programs including but not limited to medical, dental and life
insurance programs provided by the Company to the Employee under Section 3.2
hereof on the date on which such amount is paid (the "Payment Date") until a
date six (6) months after the Payment Date. In the event Employee's termination
is related to a "change of control" and occurs within one (1) year of such
change of control the notice or salary in lieu of notice and participation in
the benefits program will be for twelve (12) months. In the event that Employee
commences employment or self-employment during the period the Company is making
payments then the salary payment maybe reduced by the amount the Employee
receives through employment or self-employment and the benefits will terminate
on the date Employee becomes eligible to participate in the benefits program
pursuant to employment or self-employment. The exercise of stock options and
any modifications to the exercise period will be in accordance with the
Company's Amended and Restated Stock Option Plan.
4.5 At the election of the Employee, upon not
less than six (6) months prior written notice of termination to the Company.
5. Effect of Termination.
5.1 Termination for Cause or at Election of
Either Party. In the event the Employee's employment is terminated for cause
pursuant to Section 4.2 hereof, or at the election of the Employee pursuant to
Section 4.5 hereof, the Company shall pay to the Employee the compensation and
benefits otherwise payable to him under Section 3 hereof through the last day
of his actual employment by the Company.
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5.2 Termination for Death or Disability. If the
Employee's employment is terminated by death or because of disability pursuant
to Section 4.3 hereof, the Company shall pay to the estate of the Employee or
to the Employee, as the case may be, the compensation which would otherwise be
payable to the Employee up to the end of the month in which the termination of
his employment because of death or disability occurs.
5.3 Survival. The provisions of Sections 6 and 7
hereof shall survive the termination of this Agreement.
6. Non-Competition.
(a) During the Employment Period and for a period
of two (2) years after the termination or expiration thereof, the Employee will
not directly or indirectly:
(i) as an individual proprietor, partner,
stockholder, officer, employee, director, joint venturer, investor, lender, or
in any other capacity whatsoever (other than as the holder of not more than one
percent (1%) of the total outstanding stock of a publicly held company), engage
in the business of developing, producing, marketing or selling products of the
kind or type developed or being developed, produced, marketed or sold by the
Company while the Employee was employed by the Company; or
(ii) recruit, solicit, or induce, or attempt to
induce, any employee or employees of the Company to terminate their employment
with, or otherwise cease their relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to
divert or to take away, the business or patronage of any of the clients,
customers or accounts, or prospective clients, customers or accounts, of the
Company which were contacted, solicited or served by the Employee while
employed by the Company.
(b) If any restriction set forth in this Section
6 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.
(c) 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 will cause the Company
substantial and irrevocable damage and therefore, in the event of any such
breach, in addition to such other remedies which may be available, the Company
shall have the right to seek specific performance and injunctive relief.
7. Proprietary Information and Development.
7.1 Proprietary Information.
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(a) Employee agrees that all information and
know-how, whether or not in writing, or a private, secret or confidential
nature concerning the Company's business 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, and customer and
supplier lists. Employee will not disclose any Proprietary Information to
others outside the Company or use the same for any unauthorized purposes
without written approval by an officer of the Company, either during or after
his employment, unless and until such Proprietary Information has become public
knowledge without fault by the Employee.
(b) 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.
(c) Employee agrees that his obligation not to
disclose or use information, know-how and records of the types set forth in
paragraphs (a) and (b) above, also extends to such types of information,
know-how, records 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 in the course of the
Company's business.
7.2 Developments.
(a) 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 the Employee 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) 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 Section 7.2 (b) shall not apply to Developments which do not related to
the present or planned business or research and development of the Company 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.
(c) 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 and patents (both in
the United States and foreign countries) relating to Developments. Employee
shall sign all papers, including, without limitation, copyright applications,
patent applications, declarations, oaths, formal assignments, assignment of
priority rights, and
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powers of attorney, which the Company may deem necessary or desirable in order
to protect its rights and interests in any Development.
7.3 Other Agreements. Employee hereby represents
that he is not bound by the terms of any agreement with any previous employer
or other party to refrain from using or disclosing any trade secret or
confidential or proprietary information in the course of his employment with
the Company or to refrain from competing, directly or indirectly, with the
business of such previous employer or any other party. Employee further
represents that his performance of all terms of this Agreement and as an
employee of the Company does not and will not breach any agreement to keep in
confidence proprietary information, knowledge or data acquired by him in
confidence or in trust prior to his employment with the Company.
8. Prior Agreements. This Agreement supersedes an
Employment Agreement dated as of December 1, 1997 by and between the Employer
and Employee (the "Prior Agreement") and, as of the date hereof, the Prior
Agreement shall be of no further force and effect.
9. Notices. All notices required or permitted under this
Agreement shall be in writing and shall be deemed effective upon personal
delivery or upon deposit in the United States Post Office, by registered or
certified mail, postage prepaid, addressed to the other party at the address
shown above, or at such other address or addresses as either party shall
designate to the other in accordance with this Section 9.
10. 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.
11. 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.
12. Amendment. This Agreement may be amended or modified
only by a written instrument executed by both the Company and the Employee.
13. Governing Law. This Agreement shall be construed,
interpreted and enforced in accordance with the laws of the State of Maryland.
14. 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 to which may succeed to its assets or business, provided, however,
that the obligations of the Employee are personal and shall not be assigned by
him.
15. Miscellaneous.
15.1 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
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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.
15.2 The captions of the sections of this
Agreement are for convenience of reference only and in no way define, limit of
affect the scope or substance of any section of this Agreement.
15.3 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.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year set forth above.
ANTEX BIOLOGICS INC.
by /s/X. X. Xxxxxxxx
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X. X. Xxxxxxxx, Ph.D.
President and CEO
Chairman of the Board of Directors
Employee
/s/Xxxxx X. Xxxxxxxxxxxx
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Xxxxx X. Xxxxxxxxxxxx, Ph.D.
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