EXECUTIVE EMPLOYMENT AGREEMENT
THIS
EXECUTIVE EMPLOYMENT AGREEMENT (“Agreement”) is made and entered into as of the
20th
day of
December, 2006, by and between BiTech Pharma, Inc., a Delaware corporation
(“Company”) and Xxxxxxxx Xxxx (“Executive”).
RECITALS:
A.
The
Company desires that Executive perform his services as Chief Executive Officer
and President of the Company, having been duly appointed to such position by
the
Board of Directors of the Company.
B.
Executive desires to continue in such engagement.
C.
This
Agreement contains other provisions applicable to the employment of Executive
by
the Company.
In
consideration of the above Recitals and the provisions of this Agreement, the
Company and Executive agree as follows:
Title
and Responsibilities.
Executive shall serve as Chief Executive Officer (“CEO”) and President of the
Company. Executive’s responsibilities and duties shall include those inherent in
Executive’s position with the Company. Executive shall devote his best efforts
and full business time to the business and interests of the Company.
Compensation.
The
Company will pay Executive a salary at the rate of $60,000 per year payable
in
accordance with the Company's standard payroll policies, including compliance
with applicable withholding. Executive’s salary will be paid bi-monthly at
1st
and
16th
of each
month.
Restricted
Stocks.
Executive may be eligible to receive restricted stocks from time to time in
the
future, on such terms and subject to such conditions as the Board of Directors
shall determine as of the date of any such grant and pursuant to the existing
stock plan(s) of the Company.
Benefits.
Executive
shall be entitled to such employee benefits generally available to full-time
salaried employees of the Company, including without limitation, health
insurance, paid vacation of not less than 2 weeks per year, retirement plans
and
other similar benefits; provided, that Company reserves the right to amend,
modify, terminate or make any other changes in such benefits generally available
to full-time salaried employees of the Company at any time in its sole
discretion.
The
Company shall pay or reimburse Executive for all travel and entertainment
expenses incurred by Executive in connection with Executive’s duties on behalf
of the Company, subject to the reasonable approval of the Company. Executive
shall only be entitled to reimbursement to the extent that Executive follows
the
reasonable procedures established by the Company for reimbursement of such
expenses which will include, but will not be limited to, providing satisfactory
evidence of such expenditures.
Severance.
If his
employment is terminated by the Company for any reason, other than for Cause
(as
defined herein), he will receive severance pay of up to 2 months of his current
base salary, less standard deductions and withholdings after the first year
of
employment and on a prorate basis over the first year of the agreement. For
purposes of this letter agreement "Cause" shall mean the occurrence of any
of
the following events: (i) his repeated failure to satisfactorily perform his
job
duties as assigned by the Company;(ii) his failure to comply with all written
material applicable laws in performing his job duties or in directing the
conduct of the Company's business; (iii) his commission of any felony or
intentionally fraudulent act against the Company or its affiliates, employees,
agents or customers; (iv) his engagement or participation in any activity which
is directly competitive with or intentionally injurious to the Company or any
of
its affiliates; (v) his commission of any fraud against the Company or any
of
its affiliates or use of intentional appropriation for his personal use or
benefit of any funds or properties of the Company not authorized by the Board
to
be so used or appropriated.
Term.
The
employment of Executive under this Agreement shall be for an unspecified term.
The Company and Executive acknowledge and agree that Executive’s employment is
and shall continue to be at-will, as defined under applicable law, and that
Executive’s employment with the Company may be terminated by either party at any
time for any or no reason, and with or without notice. If Executive’s employment
terminates for any reason, Executive shall not be entitled to any payments,
benefits, damages award or compensation other than as provided in this
Agreement.
Confidentiality
Agreement.
Executive is required to complete, sign and return the Company's standard form
of Employee Confidentiality (the " Confidentiality Agreement ") attached herein
as Exhibit A.
Invention
Disclosure Agreement.
Executive is required to complete, sign and return the Company's standard form
of Employee Invention Disclosure Agreement attached herein as Exhibit
B.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year
first above written.
COMPANY:
By:
/s/
Jun Bao
Name:
Jun
Bao
Title:
Chairman of the Board
EXECUTIVE
By:
/s/
Xxxxxxxx Xxxx
Xxxxxxxx
Xxxx
Exhibit
A
Confidentiality
Agreement
This
agreement is made between Xxxxxxxx Xxxx (the "Employee") and BiTech Pharma,
Inc., (the Employer").
FOR
GOOD
AND VALUABLE CONSIDERATION, the Employee agrees to the terms of this agreement
as part of the terms of the Employee being hired by the Employer.
1.
The
Employee acknowledges that, in the course of employment by the Employer, the
Employee has, and may in the future, come into the possession of certain
confidential information belonging to the Employer including but not limited
certain scientific and technical information including, without limitation,
formulae, patterns, compilations, programs, methods, techniques, processes,
biological material, gene sequences, protein sequence and related information,
protein refolding and purification, data, designs, source codes, research plans,
business plans, business opportunities, customer or personnel lists or financial
statements that: (a) derives independent economic value actual or potential,
for
not being generally known to the public or to other persons who can obtain
economic value from its disclosure or use; and (b) is the subject of efforts
that are reasonable under the circumstances to maintain its secrecy.
2.
The
Employee hereby covenants and agrees that he or she will at no time, during
the
term of employment, use for his or her own benefit or the benefit of others,
or
disclose or divulge to others, any such confidential information.
3.
Upon
termination of employment, the Employee will return to the Employer, retaining
no copies, all documents relating to the Employers business including, but
not
limited to, records, notes, reports, manuals, drawings, diagrams, blueprints,
correspondence, computer programs, and all other materials and all copies of
such materials, obtained by the Employee during employment.
4.
The
Employee hereby
covenants and agrees that he or she will at no time,
after
the termination of employment, shall not use
for
his or her own benefit or the benefit of others, or disclose or divulge to
others, any such confidential information.
5.
Violation of this agreement by the Employee will entitle the Employer to an
injunction to prevent such competition or disclosure, and will entitle the
Employer to other legal remedies, including attorney's fees and costs.
7.
This
agreement shall be governed by the laws of state of California.
8.
If any
part of this agreement is adjudged invalid, illegal or unenforceable, the
remaining parts shall not be affected and shall remain in full force and effect.
9.
This
agreement shall be binding upon the parties, and upon their heirs, executors,
personal representatives, administrators and assigns. No person shall have
a right or cause to cause of action arising out of or resulting from this
agreement except those who are parties to it and their successors in interest.
10.
This
instrument, including any attached exhibits and addenda, constitutes the entire
agreement of the parties. No representation or promises have been made
except those that are set out in this agreement. This agreement may not be
modified except in writing signed by all the parties.
| Employee: Xxxxxxxx Xxxx | Employer: BiTech Pharma, Inc. | ||
| By: /s/ Xxxxxxxx Xxxx | By: /s/ Jun Bao | ||
Exhibit
B
INVENTION
DISCLOSURE AND ASSIGNMENT AGREEMENT
In
consideration of my employment with BiTech
Pharma, Inc., a
Delaware corporation (the "Company"), and for other good and valuable
consideration, the undersigned hereby agrees as follows:
1.
During
the course of my employment with the Company, I may learn of the Company's
confidential information or confidential information entrusted to the Company
by
other persons, corporations or firms. I understand that all of the following
information and materials are confidential information (the "Confidential
Information") belonging to the Company and shall be kept strictly confidential,
even if not physically marked as such:
(a)
Discoveries, concepts and ideas including, without limitation, the nature and
results of research and development activities, processes, gene and protein
sequence and related information, protein refolding and purification
information, formulas, inventions, computer-related equipment or technology,
techniques, "know-how," designs, drawings and specifications;
(b)
Production processes, marketing techniques and arrangements, mailing lists,
purchasing information, pricing policies, quoting procedures, financial
information, customer and prospect names and requirements, employee, customer,
supplier and distributor data and other materials and information relating
to
the Company's business and activities and the manner in which the Company does
business;
(c)
Application, operating system, database and other computer software, whether
now
or hereafter existing, developed for use on any operating system, all
modifications, enhancements and versions and all options available with respect
thereto, and all future products developed or derived therefrom;
(d)
Source and object codes, flowcharts, algorithms, coding sheets, routines,
subroutines, compilers, assemblers, design concepts and related documentation
and manuals;
(e)
Information and materials received by the Company from third parties in
confidence (or subject to nondisclosure or similar covenants);
(f)
Any
other materials or information related to the business or activities of the
Company which are not generally known to others engaged in similar businesses
or
activities; and
(g)
All
ideas which are derived from or relate to my access to or knowledge of any
of
the above enumerated materials and information.
2.
I
will
not, except with the prior written consent of the Company, or except if I am
acting as an employee of the Company solely for the benefit of the Company
in
connection with the Company's
business and in accordance with the Company's business practices and employee
policies, at any time during or following the term of my employment by the
Company, directly or indirectly, disclose, divulge, reveal, report, publish,
transfer or use, for any purpose whatsoever, any Confidential Information.
3.
I
will
make full and prompt disclosure to the Company of all inventions, improvements,
modifications, discoveries, methods and developments (all of which are
collectively termed "Developments" hereinafter), whether patentable or not,
made
or conceived by me or under my direction during my employment, whether or not
made or conceived during normal working hours or on the premises of the Company.
However, this Paragraph 3 shall not cover Developments which do not relate
to
the Company's actual or anticipated business or research and development as
conducted by the Company, or expressed by the Company to me, during the term
of
my employment, provided that such Developments are made or conceived by me
entirely during other than the Company working hours, and not on the Company's
premises and not with the use of the Company's equipment, supplies, facilities,
tools, devices or trade secret information. I agree to assign, and do hereby
assign, to the Company any right, title or interest I may have in any
Developments covered by this Paragraph 3. I agree to execute any instruments
and
to do all other things reasonably requested by the Company (both during and
after my employment with the Company) in order to vest more fully in the Company
all ownership rights in those Developments hereby transferred by me to the
Company. If anyone or more of such items are protectable by copyright and are
deemed in any way to fall within the definition of "work made for hire," as
such
term is defined in 17 U. S. C. Section101,
such
work shall be considered a "work made for hire," the copyright of which shall
be
owned solely, completely and exclusively by the Company. If anyone or more
of
the aforementioned items are protectable by copyright and are not considered
to
be included in the categories of works covered by the "work made for hire"
definition contained in 17 U.S. C. Section 101, such work shall be deemed to
be
assigned and transferred completely and exclusively to the Company by virtue
of
my execution of this letter. Upon request by the Company, I agree to assign
to
the Company all Developments covered by this Paragraph 3 and any patents or
patent applications covering such Developments and to execute and deliver such
assignments, patents and applications, and other documents as the Company may
direct and to fully cooperate with the Company to enable the Company to secure
and patent or otherwise protect such Developments in any and all countries.
4. I
hereby
represent that, to the best of my knowledge, there is no legal prohibition
including, but not limited to, an agreement with any former employer that might
prevent me from performing my contractual obligations with the Company. At
the
end of this Agreement I have set forth what I represent and warrant to be a
complete list of all inventions, if any, patented or unpatented, including
a
brief description thereof (without revealing any confidential or proprietary
information of any other party) which I may have conceived prior to my
employment with the Company and for which I claim ownership or are in the
physical possession of a former employer and which are therefore excluded from
the scope of this Agreement. If there are no such exclusions from this
Agreement, I have so indicated by writing "None" below in my own handwriting.
5.
I
will
not disclose to the Company, or induce the Company to use, any confidential
information of other persons, corporations or firms, including my former
employers (if any).
6.
At
the
time I begin my employment and during the term of my employment with the
Company, I will not engage in or become employed by or act on behalf of any
other person, corporation or firm which is engaged in any business competitive
with that of the Company, unless such contract has been approved by the Company
in writing and signed by an appropriate personnel manager of the Company.
7.
Upon
termination of my employment, unless my obligations are transferred to a
subsidiary or affiliated company of the Company, I agree to leave with the
Company all records. drawings, notebooks, computer data, software, computer
tapes, and other documents pertaining to the Company's confidential information,
whether prepared by me or others, and also any computers, instruments,
equipment, tools or other devices in my possession which are owned by the
Company.
8.
This
agreement supersedes any previous oral or written communications,
representations, understandings or agreements with the Company or any
representative of the Company.
9.
My
obligations under this Agreement shall survive the termination of my employment
regardless of the manner of such termination, and shall be binding upon my
heirs, executors and administrators.
| Dated this 20th day of December, 2006 | |
| Employee: | |
| By: /s/ Xxxxxxxx Xxxx | |
| Address: | |
|
0000 Xxxxxxxx Xxx., #X0
Xxxxx Xxxx,
XX
|
PRIOR
INVENTIONS: See Annex “A”. If none, write “NONE”
ANNEX
"A"
PRIOR
INVENTIONS
(Use
additional pages, if necessary)
|
1.__None
|
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| 2. | ||||
| 3. | ||||
| 4. | ||||
| 5. | ||||
| 6. | ||||
| 7. | ||||
