Exhibit 10.8
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into by
and between VIRAL GENETICS, INC., a Delaware corporation (the "Company" or
"Employer"), and _________________ ("Employee").
Recitals
A. Employer is a company engaged in the business of developing and
distributing biomedical products and technology;
B. Employee has been engaged in and has experience in the Employer's
business;
C. The Company desires to provide for the employment of Employee, to
clearly set forth the relationship between the parties, and to restrict Employee
from using certain confidential information and from competing with the Employer
in the future.
Agreement
NOW, THEREFORE, in consideration of the foregoing recitals, which are
incorporated as a part of this Agreement, and of the mutual covenants contained
herein and the mutual benefits to be derived hereunder, the parties agree as
follows:
1. Employment. Employer hereby employs Employee to perform those duties
generally described in this Agreement, and Employee hereby accepts and agrees to
such employment on the terms and conditions hereinafter set forth, all as of
June 1, 2003 (the "Effective Date").
2. Duties. Employer hereby employs Employee to serve as
_________________ or in such other or alternative offices as the board of
directors of the Company shall determine from time to time; provided, that in no
event shall Employee be appointed to serve in a position lower in rank than a
_________________ of the Company or its equivalent. Employee agrees to serve
from time to time at the pleasure of the board of directors in such additional
and/or other offices or positions with Employer as shall be determined by
Employer's board of directors, without compensation except as set forth herein.
Employee shall devote substantially all of his working time and efforts to the
business of Employer and any other of Employer's subsidiary companies, if any,
and shall not during the term of this Agreement be engaged in any other
substantial business activities which will significantly interfere or conflict
with the performance of his duties hereunder.
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3. Reasonable Best Efforts. Employee agrees that he will at all times
faithfully, industriously, and to the reasonable best of his ability,
experience, and talents, perform all of the duties that may be required of and
from him pursuant to the express and explicit terms hereof.
4. Vacations. Employee shall be entitled each year to a paid vacation
of at least o weeks. Vacation shall be taken by Employee at times and with
starting and ending dates determined by Employee taking into account the
reasonable needs of Employer. Vacation or portions of vacations not used in one
employment year shall carry over to the succeeding employment year, but shall
thereafter expire if not used within such succeeding year.
5. Term. The term of this Agreement shall be for the period commencing,
on the Effective Date and continuing through May 31, 2006. This Agreement shall
be renewed for successive one-year terms upon the agreement of the Employer and
Employee to renew this Agreement. For all purposes of this Agreement, including
for purposes of applying the renewal provisions of this paragraph to any term
subsequent to the term then being extended, the Expiration Date shall mean May
31, 2006 for the initial term hereof or May 31 at the end of any one-year
renewal term, as the case may be.
6. Compensation.
(a) Employer shall pay to Employee a base salary of o per annum,
payable in accordance with the payroll procedures established by Employer for
all its employees. Such salary shall be subject to an annual review and may be
increased, but not decreased, by the Company's board of directors. The salary to
Employee and all other compensation and benefits hereunder shall be subject to
withholding and other applicable taxes.
(b) If the Employer determines in its sole discretion it lacks the
working capital to make any payment of salary provided for in subparagraph 6(a)
when due, then the Employer may elect to accrue such payment of salary and defer
payment until such time as it determines that it has sufficient working capital
to make such payment in whole or in part.
(c) For and in consideration of the agreement of the Employee to enter
into this Agreement and as an incentive for the Employee to use his best efforts
in pursuit of the Company's business, concurrently with the execution of this
Agreement the Employer and Employee shall enter into the option agreement in the
form attached hereto as Exhibit A (the "Option Form").
(d) For and in consideration of the continued service of the Employee
under this Agreement during the Term hereof, the Employer shall issue and
deliver to the Employee on each anniversary date of this Agreement an option
(the "Annual Option") to purchase o shares of the common stock of the Employer
(subject to adjustment from time to time in the manner provided for in paragraph
4 of the Option Form) at an exercise price per share equal to the fair market
value (determined in the same manner set forth in paragraph 1(e) of the Option
Form) as of the last trading date immediately preceding the date the Annual
Option is to be issued on the same terms and conditions and in the same form as
the Option Form.
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7. Employment Benefits. Employee shall be entitled to participate in
all of Employer's benefit plans, including but not limited to, long-term
disability insurance, any stock option, medical, dental, life insurance,
retirement, pension, profit sharing, or other plan as in effect from time to
time on the same basis as other employees.
8. Working Facilities. Employer will provide to Employee at Employer's
principal executive offices suitable executive offices and facilities
appropriate for his position and suitable for the performance of his
responsibilities.
9. Expenses. Employer shall bear the cost of all expenses reasonably
incurred by the Employee in performing his duties under this Agreement. The
expenses for which Employer will reimburse Employee include, but are not limited
to, expenses for travel, lodging, meals, beverages, entertainment, and similar
items. The Employee shall provide to Employer a monthly accounting of such
expenses, all on a basis consistent with a reasonable policy established by
Employer for its executive officers. Employee agrees to submit such
documentation as may be necessary to substantiate the deductibility of the
foregoing expenses for income tax purposes which are permitted under the
Internal Revenue Code. Employee agrees to keep such records as are required
under the Internal Revenue Code and the Regulations there under to enable
substantiation of each of the said expenditures or reimbursements.
10. Non-Solicitation. Except as provided in paragraph 14, below, during
the period of this Agreement, and for an additional period after termination or
expiration of this Agreement of one year, Employee agrees that he will not,
directly or indirectly, solicit any person who was an employee of the Employer
or any subsidiary of Employer at any time within six months prior to the date of
termination or expiration of this Agreement; or solicit any person, governmental
entity or agency, firm or business that was a supplier, customer or client of
the Employer or any subsidiary of Employer at any time during the two year
period prior to the date of termination or expiration of this Agreement with
respect to any product or technology developed, under development, or
contemplated for development by Employer prior to or as of the date of
termination or expiration. The obligation not to solicit as described above is
not limited during the term provided herein by territory. This covenant shall
survive the termination of this Agreement.
11. Non-Disclosure of Information. In further consideration of
employment and the continuation of employment by Employer, Employee agrees as
follows:
(a) During the period of this Agreement and the period following
termination or expiration of this agreement, Employee will not, directly or
indirectly:
(i) use for his own benefit or give to any person not
authorized by Employer to receive or use such information, except for
the sole benefit of Employer, any marketing plans, results, or product
marketing information, which are proprietary to Employer;
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(ii) use for his own benefit or give to any person not
authorized by Employer to receive it, any plans or specifications,
scientific know-how, formulas, technical data or information, clinical
study protocols or data, patient or biologic information, customer
lists, data, study, table, report, or the like owned by Employer, or
any copy thereof; or
(iii) use for his own benefit or give to any persons not
authorized by Employer to receive it any information that is not
generally known to anyone other than Employer, or that is designated by
Employer as "Limited", "Private", or "Confidential", or similarly
designated.
This restriction will cease with respect to any item of proprietary or
confidential information that becomes available to the public other than through
fault of the Employee.
(b) Employee shall keep himself informed of Employer's policies and
procedures for safeguarding Employer's property, including proprietary data and
information, and will strictly comply with those policies and procedures at all
times during which the restrictions imposed by this paragraph 11 remain in
effect. He will not, except when authorized by Employer or required for the
performance of his duties hereunder, remove any of Employer's physical property
from Employer's premises. He will return to Employer, immediately upon
termination of employment, all of Employer's physical property in his possession
or control.
12. Disability. If Employee is unable to perform his services by reason
of illness or incapacity, the compensation payable shall be as follows:
(a) for any initial period of incapacity of three consecutive months or
less, compensation to Employee shall not be affected in any way;
(b) the compensation payable to Employee during the second consecutive
three-month period of incapacity shall be one-half of the compensation provided
for in paragraph 6, above; and
(c) during the third consecutive three-month period of incapacity,
one-fourth of the compensation provided for in paragraph 6, above;
provided, however, that no such compensation shall be payable with respect to
any day after the termination of this Agreement; and provided further, that to
the extent any disability insurance provided by or through the Employer pays
part or all of the compensation stated above, the Employer shall have no
obligation to make payment thereof to the Employee under this paragraph 12.
Notwithstanding the foregoing, if such illness or incapacity does not cease to
exist within such nine-consecutive-month period, as determined by a physician
selected by the Employer, Employee shall not be entitled to receive any further
compensation from Employer and Employer may thereupon terminate this Agreement.
If Employee desires to return to work, but there is a dispute as to whether he
is able to perform his duties hereunder, the issue shall be submitted to
arbitration as provided in paragraph 25 hereof.
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13. Termination for Cause. Except as set forth in the foregoing
paragraph or due to the death of Employee, Employer may not terminate this
Agreement during its term without cause. As used herein, cause shall mean that:
(a) Employee has materially breached in a manner injurious to the
Company the terms of this Agreement (other than as described in subparagraphs
(b) and (c) of this paragraph 13), and such breach has not been cured within 30
days following the date of written notice to Employee of such breach;
(b) Employee has been grossly negligent in the performance of his
duties at least three times in any consecutive 30-day period; or
(c) Employee has engaged in material and willful or gross misconduct in
the performance of his duties hereunder.
14. Termination Payment.
(a) In the event that the Employee's employment is terminated by the
Employer for reasons other than cause as defined in paragraph 13, or is
terminated by Employee for good reason (as hereinafter defined), the Employee
shall be compensated by the Employer through a single sum payment payable within
30 days after such termination in an amount equal to the annual rate of salary
provided for in paragraph 6(a) above in effect as of the date of termination,
and issuance and delivery of an option to purchase o shares of the common stock
of Employer (subject to adjustment from time to time in the manner provided for
in paragraph 4 of the Option Form) at an exercise price per share equal to the
fair market value (determined in the same manner as set forth in paragraph 1(e)
of the Option Form) as of the last trading date immediately preceding the date
of termination of the same terms and conditions and in the same form as the
Option Form. In addition, Employer shall maintain for Employee at Employer's
expense all life, long-term disability, and health and medical insurance in
effect for the Employee as of the date of termination. So long as the
termination payments called for by this subparagraph (a) are made by Employer,
Employee shall be bound by the terms and obligations set forth in paragraph 10
of this Agreement for the term provided therein.
(b) In the event that the Employee's employment is terminated by the
Employee during the term hereof for any reason other than good reason or is
terminated by the Employer during the term hereof for cause as provided in
paragraph 13, Employee shall be entitled to receive only that compensation due
and payable hereunder with respect to periods ended on or before the date of
termination. So long as the termination payment called for by this subparagraph
(b) is made by Employer, Employee shall be bound by the terms and obligations
set forth in paragraph 10 of this Agreement.
(c) As used in this Agreement, termination for good reason shall mean
termination by the Employee in the following circumstances: (i) a material
breach by Employer of this Agreement, and such breach has not been cured within
30 days following the date of written notice to Employer of such breach; (ii)
any person (other than the Employer, a subsidiary of the
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Employer, or an affiliate of the Employer) is or becomes the beneficial owner,
directly or indirectly, of securities of the Employer representing 50 percent or
more of the combined voting power of the then outstanding securities of the
Employer; or (iii) any merger or reorganization of the Employer whether or not
another entity is the survivor, pursuant to which the holders, as a group, of
all of the shares of the Employer outstanding prior to the transaction hold, as
a group, less than 50 percent of the combined voting power of the Employer or
any successor company outstanding after the transaction.
(d) In the event Employee terminates this Agreement for good reason in
accordance with paragraphs 14(c)(ii) or (iii), and Employee directly or
indirectly serves or acts during the one year period following the date of
termination of this Agreement as an owner, director, partner, officer, employee,
agent, consultant, or in any other capacity with the successor in interest to
the Employer, or any affiliate or assign of such successor, in which position
the Employee renders 20 hours or more of services per week on average to such
successor, Employee shall refund within thirty days following the date of first
service or action the full amount of any termination payment made to Employee
under this paragraph 14 to the Employer.
15. Nontransferability. Neither Employee, his spouse, his designated
contingent beneficiary, nor their estates shall have any right to anticipate,
encumber, or dispose of any payment due under this Agreement. Such payments and
other rights are expressly declared non-assignable and non-transferable except
as specifically provided herein.
16. Indemnification. Employer shall indemnify Employee and hold him
harmless from liability for, and shall advance to him on a current basis any
expenses incurred in connection with, acts, omissions, or decisions made by him
while performing services for Employer to the greatest extent permitted by
applicable law. Employer shall also use its best efforts to obtain and maintain
during the term of this Agreement coverage for Employee in his capacity as an
officer and director of Employer of any of its subsidiaries or affiliates under
any insurance policy now in force or hereafter obtained during the term of this
Agreement insuring officers and directors of Employer, in amounts acceptable to
Employee, against such liability.
17. Assignment. This Agreement may not be assigned (other than by will
or by operation of law), by either party without the prior written consent of
the other party. Subject to this limitation, this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their heirs, executors,
administrators, successors, legal representatives, and permitted assigns.
18. Entire Agreement. This Agreement is and shall be considered to be
the only agreement or understanding between the parties hereto with respect to
the employment of Employee by Employer. All negotiations, commitments, and
understandings acceptable to both parties have been incorporated herein. No
letter, telegram, or communication passing between the parties hereto shall be
deemed a part of this Agreement; nor shall it have the effect of modifying or
adding to this Agreement unless it is distinctly stated in such letter,
telegram, or communication that it is to constitute a part of this Agreement and
is to be attached as a rider to this Agreement and is signed by the parties to
this Agreement.
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19. Modification of Contract. This Agreement cannot be modified by
tender, acceptance or endorsement of any instrument of payment, including check.
Any words contained in an instrument of payment modifying this contract,
including a waiver or release of any claims, or a statement referring to paying
in full is void. This Agreement can only be modified in a separate writing,
other than an instrument of payment, signed by the parties.
20. Counterpart and Headings. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument. All headings in this
Agreement are inserted for convenience of reference and shall not affect its
meaning or interpretation.
21. Cooperation. The parties shall deal with each other in good faith,
good faith meaning honesty in fact and the observance of all commercial
standards of fair dealing and usages of trade, which are regularly observed
within the industry. In this regard, Employer shall not engage in any course of
conduct that is oppressive to Employee and intended by Employer to force
Employee's resignation.
22. No Strict Construction. The language used in this Agreement shall
be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
party.
23. Notices. Any notice, request, instruction, report or other document
to be given to the parties shall be in writing and delivered personally or sent
by certified mail, postage prepaid,
if to Employee: _________________
if to Employer: Viral Genetics, Inc.
000 Xxxxxxx Xxxxxx
Xxxxx Xxxxxxxx, Xxxxxxxxxx 00000
or at such other address as any party shall specify to the other party in
writing.
24. Arbitration. In the event of dispute or controversy between the
parties as to the performance hereof, this Agreement shall be and remain in full
force and effect and all terms hereof shall continue to be complied with by both
parties, it shall be submitted to two arbitrators, one to be appointed by each,
and if those arbitrators do not agree, they shall select a third disinterested
and competent person to act with them, and the decision of the three, or a
majority of them, shall be final and conclusive. If either party does not
appoint an arbitrator as aforesaid within 90 days after receipt of notice to the
other that it desires arbitration, which notice shall state the name and address
of the arbitrator appointed by such other, and does not within such period
furnish to such other party the name and address of the second arbitrator, then
the arbitrator first named shall appoint a disinterested and competent
arbitrator for the party thus
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defaulting, and the two arbitrators so appointed shall select a third to act
with them as aforesaid and with like effect. Cost of arbitration shall be borne
by the parties equally. Judgment upon the reward rendered may be entered in any
court having jurisdiction thereof.
25. Enforcement. Employee acknowledges that any remedy at law for
breach of paragraphs 10 and 11 would be inadequate, acknowledges that Employer
would be irreparably damaged by an actual or threatened breach thereof, and
agrees that Employer shall be entitled to an injunction restraining Employee
from any actual or threatened breach of paragraphs 10 and 11 as well as any
further appropriate equitable relief without any bond or other security being
required. Employer may pursue enforcement of paragraphs 10 or 11 by commencing
an action at law or in equity without first pursuing arbitration pursuant to
paragraph 25 of this Agreement. In addition to the foregoing, each of the
parties hereto shall be entitled to any remedies available in equity or by
statute with respect to the breach of the terms of this Agreement by the other
party.
26. Governing Law. This Agreement shall be governed by and interpreted
in accordance with the laws of the state of California.
27. Severability. If and to the extent that any court of competent
jurisdiction holds any provision or any part thereof of this Agreement to be
invalid or unenforceable, such holding shall in no way affect the validity of
the remainder of this Agreement.
28. Waiver. No failure by an party to insist upon the strict
performance of any covenant, duty, agreement, or condition of this Agreement or
to exercise any right or remedy consequent upon a breach hereof shall constitute
a waiver of any such breach or of any other covenant, agreement, term, or
condition.
AGREED and entered into on the __ day of ______ 200_.
EMPLOYER:
VIRAL GENETICS, INC.
By______________________________
Duly Authorized Officer
EMPLOYEE:
________________________________
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