Exhibit 10.5
CORIXA CORPORATION
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is dated as of _________,
2001 by and between ___________ ("Executive") and Corixa Corporation, a Delaware
corporation (the "Company").
1. DUTIES.
(a) POSITION. Executive is employed as ______________________ of
the Company, reporting to the Company's chairman and chief executive officer.
The duties and responsibilities of Executive shall include the duties and
responsibilities for the direct supervision, direction and control of the
Company's ______________________. The Executive shall perform such duties as
from time to time may be prescribed for him by the Company's chief executive
officer or the Company's board of directors, in all cases to be consistent with
Executive's corporate offices and positions.
(b) OBLIGATIONS TO THE COMPANY. Executive agrees to the best of
his ability and experience that she will at all times loyally and
conscientiously perform all of the duties and obligations required of and from
Executive pursuant to the express and implicit terms hereof, and to the
reasonable satisfaction of the Company. During the term of Executive's
employment relationship with the Company, Executive further agrees that he will
devote all of his business time and attention to the business of the Company,
the Company will be entitled to all of the benefits and profits arising from or
incident to all such work services and advice, and Executive will not render
commercial or professional services of any nature to any person or organization,
whether or not for compensation, without the prior written consent of the Board,
and will not directly or indirectly engage or participate in any business that
is competitive in any manner with the business of the Company. Nothing in this
Agreement will prevent Executive from accepting speaking or presentation
engagements in exchange for honoraria, from serving on boards of charitable
organizations, or from owning no more than 3% of the outstanding equity
securities of a corporation whose stock is listed on a national stock exchange
or the Nasdaq National Market, provided that such activities do not materially
interfere with Executive's obligations to the Company as described above.
Executive will comply with and be bound by the Company's operating policies,
procedures and practices from time to time in effect during the term of
Executive's employment.
2. AT-WILL EMPLOYMENT. 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 notwithstanding any other obligation
under this Agreement, 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.
3. COMPENSATION. For the duties and services to be performed by
Executive hereunder, the Company shall pay Executive, and Executive agrees to
accept, the salary, stock options, bonuses and other benefits described below in
this Section 3.
(a) SALARY. During calendar year 2001, Executive shall receive a
monthly base salary of $_________________, which is equivalent to $
______________on an annualized basis. Executive's monthly base salary will be
payable pursuant to the Company's normal payroll practices for payment of salary
to executive employees. Executive's base salary will be reviewed as part of the
Company's normal salary review process.
(b) STOCK OPTIONS.
(i) STOCK INCENTIVE PROGRAM. In addition to new hire
option grants and any other outstanding options that Executive may currently
hold, Executive is eligible to participate in the Stock Incentive Program (the
"Program") whereby each year Executive may receive an option for up to 15,000
shares of Company Common Stock (the "Option"). The number of shares awarded will
be based solely on the Company's achievement of scientific and business goals
solely determined by the Board prior to the start of each fiscal year. Options
earned under this Program will be granted no later than February following the
close of the applicable fiscal year. Any Option granted pursuant to this Program
will have a purchase price equal to the fair market value on the grant date, and
shall be subject to the terms of a Stock Option Agreement, the form of which is
attached hereto as Exhibit A. The Option will vest and become exercisable over a
four (4) year vesting period such that 1/48 of the total number of Option shares
will vest and become exercisable on each monthly anniversary. Vesting is
contingent upon Executive's continued employment with the Company.
(ii) CHANGE OF CONTROL BENEFIT.
(A) ACCELERATION. In the event of a Change of
Control (as defined in Section 5(a) of this Agreement), (i.) if any of
Executive's outstanding options (the "Awards") are assumed or an equivalent
option is substituted by such successor corporation or a parent or subsidiary of
such successor corporation (the "Successor Corporation"), one half of the then
unvested portion of the Awards shall be deemed to have vested immediately prior
to the transaction, (ii.) if the Awards are not assumed or an equivalent option
is not substituted by the Successor Corporation, all of the then unvested
portion of the Awards shall be deemed to have vested immediately prior to such
transaction and (iii.) if Executive is terminated without Cause (as defined
below in Section 5(b)) or if Executive Resigns for Good Reason (as defined in
Section 5(c)) within twelve (12) months following the consummation of the
transaction where the Successor Corporation assumed the Awards or substituted an
equivalent option, the entire unvested portion of the Awards held by Executive
shall be deemed to have vested and become fully exercisable immediately prior to
any such termination or resignation. If the vesting of the Awards is accelerated
pursuant to this Section 3(b)(ii)(A), the Company shall notify Executive that
the vesting of the Awards has been accelerated and Executive shall have the
right to exercise the Awards prior to the transaction, termination or
resignation as applicable.
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(B) LIMITATION ON PAYMENTS. In the event that the
vesting acceleration provided for in Section 3(b)(ii)(A) above (i.) constitutes
"parachute payments" within the meaning of Section 280G of the Internal Revenue
Code (the "Code"), and (ii.) but for this Section 3(b)(ii)(B) would be subject
to the excise tax imposed by Section 4999 of the Code (or any corresponding
provisions of state income tax law), then such vesting acceleration shall be
either
(aa) delivered in full, or
(bb) delivered as to such lesser extent which
would result in no portion of such severance benefits being subject to excise
tax under Code Section 4999,
whichever amount, taking into account the applicable federal, state and local
income taxes and the excise tax imposed by Code Section 4999, results in the
receipt by Executive on an after-tax basis of the greater amount of acceleration
benefits, notwithstanding that all or some portion of such benefits may be
taxable under Code Section 4999. Any determination required under this Section
3(b)(ii)(B) shall be made in writing by the Company's independent accountants,
whose determination shall be conclusive and binding for all purposes on the
Company and any affected Executive. In the event that (aa) above applies, then
the Executive shall be responsible for any excise taxes imposed with respect to
such benefits. In the event that (bb) above applies, then each benefit provided
hereunder shall be proportionately reduced to the extent necessary to avoid
imposition of such excise taxes.
(c) DISCRETIONARY BONUSES. Executive is eligible for an annual
discretionary cash bonus equal to up to 20% of Executive's then current base
salary. This discretionary bonus will be based upon (i.) the Company's
achievement of scientific and business goals solely determined by the Board in
November of the previous fiscal year and (ii.) the Executive's achievement of
personal performance objectives established and approved by the Company no later
than February each fiscal year. Payment of any earned bonus shall be made no
later than February following the close of the applicable fiscal year. In
addition, Executive may be entitled to other incentive bonuses as solely
determined by the Board or the Company's Compensation Committee from time to
time.
(d) ADDITIONAL BENEFITS. Executive is eligible to participate in
the Company's employee benefit plans of general application in accordance with
the rules established for individual participation in any such plan and under
applicable law.
(e) INDEMNIFICATION. Executive has previously entered into the
Company's standard form of Indemnification Agreement, attached hereto as Exhibit
B, providing indemnification to Executive to the maximum extent permitted by
law, and in accordance therewith, the Company has agreed to advance any expenses
for which indemnification is available to the extent allowed by applicable law.
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(f) VACATION. Executive is eligible to accrue up to 20 days of
paid vacation per year, which vacation may be used in the year in which accrued
or in a subsequent year, subject to the Company's policies with respect to
maximum accrual of unused vacation.
4. SEVERANCE BENEFITS. Executive shall be entitled to receive severance
benefits upon termination of employment only as set forth in this Section 4.
Executive's entitlement to such severance benefits shall be conditioned upon
Executive's execution and delivery to the Company of (i) a general release of
all claims, (ii) a resignation from all of Executive's positions with the
Company and (iii) an agreement not to directly or indirectly be employed or
involved with any business developing or exploiting any products or services
that are competitive with products or services (a) being commercially developed
or exploited by the Company during Executive's employment and (b) on which
Executive worked or about which Executive learned proprietary information or
trade secrets of the Company during Executive's employment with the Company. Any
payment of severance benefits under the terms of this Agreement will be subject
to all applicable tax withholding
(a) VOLUNTARY TERMINATION OR TERMINATION FOR CAUSE. If Executive
voluntarily elects to terminate his employment with the Company other than by
Executive's Resignation for Good Reason, as defined in Section 5(c) below, or if
the Company or a successor entity terminates Executive's employment for Cause,
as defined in Section 5(b) below, or the Executive dies or becomes incapacitated
or otherwise disabled in such a manner that, in the sole determination of the
Board, the Executive cannot perform reasonably the duties specified in Section 1
above, then Executive shall not be entitled to receive payment of any severance
benefits. Executive will receive payment for all salary and unpaid vacation
accrued as of the date of Executive's termination of employment and Executive's
benefits will be continued solely to the extent of the Company's then existing
benefit plans and policies in accordance with such plans and policies in effect
on the date of termination and in accordance with applicable law.
(b) INVOLUNTARY TERMINATION APART FROM A CHANGE OF CONTROL. If
Executive's employment is terminated by the Company or a successor entity
without Cause or by Executive's Resignation for Good Reason prior to or more
than twelve (12) months after, a Change of Control (as defined below), Executive
will receive payment for all salary and unpaid vacation accrued as of the date
of Executive's termination of employment, and, in addition, Executive will be
entitled to receive the following severance benefits:
(i) continued payment of his base salary for a period of
twelve (12) months following the date of termination, in accordance with the
Company's normal payroll practices;
(ii) reimbursement of his premium cost for continuation
coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended, or the California Continuation of Benefits Replacement Act of 1997, as
amended, whichever is applicable, for the lesser of the first twelve (12) months
of continuation coverage or that number of months until Executive becomes
eligible for reasonably comparable benefits under any future employer's health
insurance plan, provided Executive makes a timely election for such
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continuation coverage and presents reasonably requested documentation of payment
of such premiums;
(iii) payment of 100% of Executive's current year
discretionary cash bonus regardless of the Company's or the Executive's
achievement of the goals referred to in Section 3(c) of this Agreement;
(iv) accelerated vesting as to 50% of Executive's then
unvested option shares; and
(v) reimbursement for up to $20,000 of expenses incurred
in obtaining new employment, provided Executive submits evidence that is
satisfactory to the Company that the amount involved was expended and related to
obtaining new employment.
(c) INVOLUNTARY TERMINATION FOLLOWING A CHANGE OF CONTROL. If
Executive's employment is terminated by the Company or a successor entity
without Cause or by Executive's Resignation for Good Reason in either case
within twelve (12) months following a Change of Control, Executive will receive
payment for all salary and unpaid vacation accrued as of the date of Executive's
termination of employment, and, in addition, Executive will be entitled to
receive the following severance benefits:
(i) continued payment of his base salary for a period of
eighteen (18) months following the date of termination, in accordance with the
Company's normal payroll practices;
(ii) reimbursement of his premium cost for continuation
coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended, or the California Continuation of Benefits Replacement Act of 1997, as
amended, whichever is applicable, for the lesser of the first eighteen (18)
months of continuation coverage or that number of months until Executive becomes
eligible for reasonably comparable benefits under any future employer's health
insurance plan, provided Executive makes a timely election for such continuation
coverage and presents reasonably requested documentation of payment of such
premiums;
(iii) payment of 150% of Executive's current year
discretionary cash bonus regardless of the Company's or the Executive's
achievement of the goals referred to in Section 3(c) of this Agreement;
(iv) accelerated vesting of 100% of all the unvested
option shares pursuant to the terms of Section 3(b)(ii) of this Agreement; and
(v) reimbursement for up to $20,000 of expenses incurred
in obtaining new employment, provided Executive submits evidence that is
satisfactory to the Company that the amount involved was expended and related to
obtaining new employment.
5. DEFINITIONS. For purposes of this Agreement, the following
definitions shall apply:
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(a) "CHANGE OF CONTROL" means a sale of all or substantially all
of the Company's assets, or any merger or consolidation of the Company with or
into another corporation other than a merger or consolidation in which the
holders of more than 50% of the shares of capital stock of the Company
outstanding immediately prior to such transaction continue to hold (either by
the voting securities remaining outstanding or by their being converted into
voting securities of the surviving entity) more than 50% of the total voting
power represented by the voting securities of the Company, or such surviving
entity, outstanding immediately after such transaction.
(b) "CAUSE" means the determination by the Company's Board of
Directors of any of the following: (i) Executive's failure to perform
Executive's duties and responsibilities to the Company in a manner satisfactory
to the Board; (ii) Executive's violation of a Company policy; (iii) Executive's
violation of any state or federal law, including but not limited to any act of
fraud, embezzlement or dishonesty, or any other willful misconduct that has
caused or is reasonably expected to result in injury to the Company, including
the Company's reputation; (iv) Executive's unauthorized use or disclosure of any
proprietary information or trade secrets of the Company or any other party to
whom the Executive owes an obligation of nondisclosure as a result of his
relationship with the Company; or (v) Executive's breach of any of his or her
obligations under any written agreement or covenant with the Company.
(c) "RESIGNATION FOR GOOD REASON" means, subject to the right of
either party to arbitrate a dispute with respect thereto in accordance with
Section 12 below, Executive's resignation as a result of, and within 30 days
following: (i) a change in Executive's position such that he is not a corporate
officer of the Company (or a successor company, in the event of a Change of
Control); (ii) a significant and substantial reduction in Executive's job,
duties, or responsibilities in a manner that is substantially and materially
inconsistent with the position, duties, or responsibilities held by Executive
immediately before such reduction; (iii) any reduction in Executive's base
salary other than in connection with and consistent with a general reduction of
all officer base salaries; or (iv) a relocation of the Company's executive
offices to a location more than 50 miles away from their current location
provided such change increases Executive's commute by 25 miles or 45 minutes.
6. CONFIDENTIALITY AGREEMENT. Executive has signed a Proprietary
Information and Inventions Agreement (the "Proprietary Agreement") that is
incorporated by reference and made a part of this Agreement and the form of
which is attached hereto as Exhibit C. Executive hereby represents and warrants
to the Company that Executive has complied with all obligations under the
Proprietary Agreement and agrees to continue to abide by the terms of the
Proprietary Agreement and further agrees that the provisions of the Proprietary
Agreement shall survive any termination of this Agreement or of Executive's
employment relationship with the Company in accordance with the terms of the
Proprietary Agreement.
7. CONFIDENTIALITY OF TERMS. Executive agrees to follow the Company's
strict policy that employees must not disclose, either directly or indirectly,
any information, including any of the terms of this Agreement, regarding salary
or stock purchase allocations to any person, including other employees of the
Company (other than such employees who have a need to know such information);
provided, however, that Executive may discuss such terms with members of
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his immediate family and any legal, tax or accounting specialists who provide
Executive with individual legal, tax or accounting advice.
8. COVENANTS. In addition to the obligations to which the Executive
agreed by executing the Proprietary Agreement, Executive understands and agrees
that during the term of Executive's employment with the Company, and for the
greater of (i) the duration of any payments to Executive of severance benefits
pursuant to Section 4 of this Agreement or (ii) one (1) year after the
termination of Executive's employment with the Company, Executive will not do
any of the following:
(a) COMPETE. Without the Company's prior written consent,
Executive will not directly or indirectly be employed or involved with any
business developing or exploiting any products or services that are competitive
with products or services (i) being commercially developed or exploited by the
Company during Executive's employment and (ii) on which Executive worked or
about which Executive learned proprietary information or trade secrets of the
Company during Executive's employment with the Company.
(b) SOLICIT BUSINESS. Solicit or influence or attempt to
influence any client, customer or other person either directly or indirectly, to
direct his, her or its purchase of the Company's products and/or services to any
person, firm, corporation, institution or other entity in competition with the
business of the Company.
(c) SOLICIT PERSONNEL. Solicit or influence or attempt to
influence any of the Company's employees, consultants or other service providers
to terminate or otherwise cease his, her or its employment, consulting or
service relationships with the Company or to become an employee, consultant or
service provider of any competitor of the Company.
9. BREACH OF THE AGREEMENT. Executive acknowledges that upon his breach
of this Agreement or the Proprietary Agreement, the Company would sustain
irreparable harm from such breach, and, therefore, Executive agrees that in
addition to any other remedies which the Company may have under this Agreement
or otherwise, the Company shall be entitled to obtain equitable relief,
including specific performance and injunctions, restraining Executive from
committing or continuing any such violation of the Agreement or the Proprietary
Agreement. Executive acknowledges and agrees that upon Executive's material or
intentional breach of any of the provisions of the Agreement (including Section
8) or the Proprietary Agreement, in addition to any other remedies the Company
may have under this Agreement or otherwise, the Company's obligations to provide
benefits to Executive as described in this Agreement, including without
limitation those benefits provided in Section 4, shall immediately terminate.
10. ENTIRE AGREEMENT. This Agreement, including the Proprietary
Agreement that the Executive has signed, sets forth the entire agreement and
understanding of the parties relating to the subject matter herein, supercedes
any prior agreement, and merges all prior discussions between them.
11. CONFLICTS. Executive represents and warrants that his performance of
all the terms of this Agreement will not breach any other agreement or
understanding to which Executive is a
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party. Executive has not, and will not during the term of this Agreement, enter
into any oral or written agreement in conflict with any of the provisions of
this Agreement.
12. DISPUTE RESOLUTION. In the event of any dispute, controversy or
claim arising under or in connection with this Agreement, or the breach hereof
(including a dispute as to whether Cause or Resignation for Good Reason exists),
the parties hereto shall first submit their dispute to formal mediation. The
Company shall select a mediator reasonably acceptable to both parties. In the
event that the parties cannot reach resolution through formal mediation, the
dispute shall be settled by arbitration in Seattle, Washington, in accordance
with the Rules of the American Arbitration Association then in effect. Each
party shall pay his, her or its own costs (including attorneys' fees) in
connection with such mediation or arbitration. To the extent such mediation or
arbitration requires the submission of any information that either party claims
is confidential information, the parties agree that such mediation or
arbitration shall be confidential proceeding. Judgment upon the award rendered
by the mediator or arbitrator may be entered in any court of competent
jurisdiction. If any proceeding is necessary to enforce the mediation or
arbitration award, the prevailing party shall be entitled to reasonable
attorneys fees and costs and disbursements, in addition to any other relief to
which such party may be entitled. Notwithstanding the foregoing, the Company
shall be entitled to seek equitable relief directly from a court of competent
jurisdiction (without prior arbitration) with respect to any alleged breach of
the Proprietary Agreement or Section 8, including specific performance and
injunctions, restraining Executive from committing or continuing to commit such
alleged breach.
13. SUCCESSORS. Any successor to the Company (whether direct or indirect
and whether by purchase, lease, merger, consolidation, liquidation or otherwise)
to all or substantially all of the Company's business and/or assets shall assume
the obligations under this Agreement and agrees expressly to perform the
obligations under this Agreement in the same manner and to the same extent as
the Company would be required to perform such obligations in the absence of a
succession. The terms of this Agreement and all of Executive's rights hereunder
shall inure to the benefit of, and be enforceable by, Executive's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
14. MISCELLANEOUS PROVISIONS.
(a) AMENDMENTS AND WAIVERS. Any term of this Agreement may be
amended or waived only with the written consent of the parties. The failure by
either party to enforce any rights under this Agreement shall not be construed
as a waiver of any rights of such party.
(b) NOTICES. Any notice required or permitted by this Agreement
shall be in writing and shall be deemed sufficient upon receipt, when delivered
personally or by a nationally-recognized delivery service (such as Federal
Express or UPS), or 48 hours after being deposited in the U.S. mail as certified
or registered mail with postage prepaid, if such notice is addressed to the
party to be notified at such party's address as set forth below or as
subsequently modified by written notice.
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(c) CHOICE OF LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Washington, without giving effect to its or any other jurisdiction's principles
of conflict of laws.
(d) SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith. In the event that the parties cannot reach a
mutually agreeable and enforceable replacement for such provision, then (i) such
provision shall be excluded from this Agreement, (ii) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (iii)
the balance of the Agreement shall be enforceable in accordance with its terms.
(e) COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together will
constitute one and the same instrument.
(f) ADVICE OF COUNSEL. EACH PARTY TO THIS AGREEMENT ACKNOWLEDGES
THAT, IN EXECUTING THIS AGREEMENT, SUCH PARTY HAS HAD THE OPPORTUNITY TO SEEK
THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND HAS READ AND UNDERSTOOD ALL OF THE
TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED
AGAINST ANY PARTY BY REASON OF THE DRAFTING OR PREPARATION HEREOF.
[Signature Page Follows]
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The parties have executed this Employment Agreement as of the date first
written above.
CORIXA CORPORATION
By: ____________________________________
Xxxxx Xxxxxx, Ph.D.
Chairman and Chief Executive Officer
Address: 0000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
______________________
_______________________________________
Address:
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EXHIBIT A
STOCK OPTION AGREEMENT
EXHIBIT B
INDEMNIFICATION AGREEMENT
EXHIBIT C
PROPRIETARY INFORMATION AND
INVENTIONS AGREEMENT
PROPRIETARY INFORMATION
AND INVENTIONS AGREEMENT
CORIXA CORPORATION
In consideration of my employment or consultancy (as the case may be) by
Corixa Corporation, a Delaware corporation (the "Company", which term includes
the Company's subsidiaries and any of its affiliates), any opportunity for
advancement or reassignment that the Company may offer me, the compensation paid
to me in connection with such employment and any stock and/or stock options
which have been or may be granted to me by the Company, I, Xxxxxx Xxx, hereby
agree as follows:
1. Whenever used in this Agreement the following terms will have the
following meanings:
(a) "Invention(s)" means discoveries, developments, designs,
improvements, inventions and/or works of authorship, whether or
not patentable, copyrightable or otherwise legally protectable.
This includes, but is not limited to, any new machine, article
of manufacture, biological material, method, process, technique,
use, equipment, device, apparatus, system, compound,
formulation, composition of matter, design or configuration of
any kind, or any improvement thereon.
(b) "Proprietary Information" means information or physical material
not generally known or available outside the Company or
information or physical material entrusted to the Company by
third parties. This includes, but is not limited to, Inventions,
confidential knowledge, trade secrets, copyrights, product
ideas, techniques, processes, formulas, object codes, biological
materials such as nucleic acids, proteins, organisms, strands,
cell lines, antibodies or antigen source materials, or fragments
thereof, mask works and/or any other information of any type
relating to documentation, data, schematics, algorithms, flow
charts, mechanisms, research, manufacture, improvements,
assembly, installation, marketing, forecasts, pricing,
customers, the salaries, duties, qualifications, performance
levels and terms of compensation of other employees, and/or cost
or other financial data concerning any of the foregoing or the
Company and its operations. Proprietary Information may be
contained in material such as drawings, samples, procedures,
specifications, reports, studies, customer or supplier lists,
budgets, cost or price lists, compilations or computer programs,
or may be in the nature of unwritten knowledge or know-how.
(c) "Company Documents" means documents or other media that contain
Proprietary Information or any other information concerning the
business, operations or plans of the Company, whether such
documents have been prepared by me or by others. "Company
Documents" include, but are not limited to, blueprints,
drawings, photographs, charts, graphs, notebooks, customer
lists, computer disks, tapes or printouts, sound recordings and
other printed, typewritten or handwritten documents.
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2. I understand that the Company is engaged in a continuous program of
research, development and production. I also recognize that the Company
possesses or has rights to Proprietary Information (including certain
information developed by me during my employment or consultancy (as the case may
be) by the Company that has commercial value in the Company's business.
3. I understand that the Company possesses Company Documents that are
important to its business.
4. I understand and agree that my employment or consultancy (as the case
may be) creates a relationship of confidence and trust between me and the
Company with respect to (i) all Proprietary Information and (ii) the
confidential information of another person or entity with which the Company has
a business relationship and is required by terms of an agreement with such
entity or person to hold such information as confidential. At all times, both
during my employment or consultancy (as the case may be) by the Company and
after its termination, I will keep in confidence and trust all such information,
and I will not use or disclose any such information without the written consent
of the Company, except as may be necessary in the ordinary course of performing
my duties to the Company.
5. In addition, I hereby agree as follows:
(a) All Proprietary Information will be the sole property of the
Company and its assigns, and the Company and its assigns will be the sole owner
of all trade secrets, patents, copyrights and other rights in connection
therewith. I hereby assign to the Company any rights I may presently have or I
may acquire in such Proprietary Information.
(b) All Company Documents, apparatus, equipment and other
physical property, whether or not pertaining to Proprietary Information,
furnished to me by the Company or produced by me or others in connection with my
employment or consultancy (as the case may be) will be and remain the sole
property of the Company. I will return to the Company all such Company
Documents, materials and property as and when requested by the Company,
excepting only (i) my personal copies of records relating to my compensation;
(ii) my personal copies of any materials previously distributed generally to
stockholders of the Company; and (iii) my copy of this Agreement (my "Personal
Documents"). Even if the Company does not so request, I will return all such
Company Documents, materials and property upon termination of my employment or
consultancy (as the case may be) by me or by the Company for any reason, and,
except for my Personal Documents, I will not take with me any such Company
Documents, material or property or any reproduction thereof upon such
termination.
(c) I will promptly disclose to the Company, or any persons
designated by it, all Inventions relating to the Field, as defined below, made
or conceived, reduced to practice or learned by me, either alone or jointly with
others, prior to the term of my employment or consultancy (as the case may be)
and for one (1) year thereafter. For purposes of this Agreement, "Field" means
research, development, marketing or manufacturing of diagnostics or prophylactic
or immunotherapeutic products for any cancer or autoimmune or infectious
disease, or any ex vivo application of any of the foregoing.
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(d) All Inventions that I conceive, reduce to practice, develop
or have developed (in whole or in part, either alone or jointly with others)
during the term of my employment or consultancy (as the case may be) will be the
sole property of the Company and its assigns to the maximum extent permitted by
law (and to the fullest extent permitted by law will be deemed "works made for
hire"), and the Company and its assigns will be the sole owner of all patents,
copyrights and other rights in connection therewith. I hereby assign to the
Company my entire right, title and interest, whether possessed now or later
acquired, in such Inventions. I agree that any Invention required to be
disclosed under paragraph (c) above within one (1) year after the term of my
employment or consultancy (as the case may be) will be presumed to have been
conceived during my employment or consultancy (as the case may be). I understand
that I may overcome the presumption by showing that such Invention was conceived
after the termination of my employment or consultancy (as the case may be).
NOTICE REQUIRED BY REVISED CODE OF WASHINGTON 49.44.140: ANY ASSIGNMENT
OF INVENTIONS REQUIRED BY THIS AGREEMENT DOES NOT APPLY TO AN INVENTION
FOR WHICH NO EQUIPMENT, SUPPLIES, FACILITIES OR TRADE SECRET INFORMATION
OF THE COMPANY WAS USED AND WHICH WAS DEVELOPED ENTIRELY ON THE
EMPLOYEE'S OWN TIME, UNLESS (a) THE INVENTION RELATES (i) DIRECTLY TO
THE BUSINESS OF THE COMPANY OR (ii) TO THE COMPANY'S ACTUAL OR
DEMONSTRABLY ANTICIPATED RESEARCH OR DEVELOPMENT, OR (b) THE INVENTION
RESULTS FROM ANY WORK PERFORMED BY THE EMPLOYEE FOR THE COMPANY.
CALIFORNIA
I understand that to the extent my relationship with the Company is at
any time determined to be that of an employee for purposes of California
Labor Code Section 2870, the provisions of this Agreement requiring
assignment of Inventions to the Company do not apply to any Invention
that qualifies fully under the provisions of California Labor Code
Section 2870 (attached hereto as Exhibit B). I will advise the Company
promptly in writing of any inventions that I believe meet such
provisions and are not otherwise disclosed on Exhibit A, discussed below
in paragraph 6.
(e) During or after my employment, upon the Company's request and
at the company's expense, I will execute all papers in a timely manner and do
all acts necessary to apply for, secure, maintain or enforce patents, copyrights
and any other legal rights in the United States and foreign countries in
Inventions assigned to the Company under this Agreement, and I will execute all
papers and do any and all acts necessary to assign and transfer to the Company
or any person or party to whom the Company is obligated to assign its rights, my
entire right, title and interest in and to such Inventions. This obligation will
survive the termination of my employment or consultancy (as the case may be),
but the Company will compensate me at a reasonable rate after such termination
for time actually spent by me at the Company's request on such assistance. In
the event that the Company is unable for any reason whatsoever to secure my
signature to any document reasonably necessary or appropriate for any of the
foregoing purposes, (including renewals, extensions, continuations, divisions or
continuations in part), I hereby irrevocably designate and appoint the Company
and its duly authorized officers and agents as my
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agents and attorneys-in-fact to act for and in my behalf and instead of me, but
only for the purpose of executing and filing any such document and doing all
other lawfully permitted acts to accomplish the foregoing purposes with the same
legal force and effect as if executed by me.
(f) So that the Company may be aware of the extent of any other
demands upon my time and attention, I will disclose to the Company (such
disclosure to be held in confidence by the Company) the nature and scope of any
other business activity in which I am or become engaged during the term of my
employment or consultancy (as the case may be). During the term of my employment
or consultancy (as the case may be), I will not engage in any other business
activity that is related to the Company's business or its actual or demonstrably
anticipated research and development.
6. As a matter of record I attach hereto as Exhibit B a complete list of
all Inventions (including patent applications and patents) relevant to the Field
that have been made, conceived, developed or first reduced to practice by me,
alone or jointly with others, prior to my employment or consultancy (as the case
may be) with the Company that I desire to remove from the operation of this
Agreement, and I covenant that such list is complete. If no such list is
attached to this Agreement, I represent that I have no such Inventions at the
time of signing this Agreement. If in the course of my employment or consultancy
with the Company, I use or incorporate into a product or process an Invention
not covered by Paragraph 5(d) of this Agreement in which I have an interest, the
Company is hereby granted a nonexclusive, fully paid-up, royalty-free,
perpetual, worldwide license of my interest to use and sublicense such Invention
without restriction of any kind.
7. I represent that my execution of this Agreement, my employment or
consultancy (as the case may be) with the Company and my performance of my
proposed duties to the Company in the development of its business will not
violate any obligations I may have to any former employer, or other person or
entity, including any obligations to keep confidential any proprietary or
confidential information of any such employer. I have not entered into, and I
will not enter into, any agreement that conflicts with or would, if performed by
me, cause me to breach this Agreement.
8. In the course of performing my duties to the Company, I will not
utilize any proprietary or confidential information of any former employer.
9. I agree that this Agreement does not constitute an employment or
consultancy (as the case may be) agreement for a specific duration and that,
unless otherwise provided in a written contract signed by both the Company
President or its Chief Operating Officer and me, (i) my employment or
consultancy (as the case may be) with the Company is "at will" and (ii) I will
have the right to resign my employment or consultancy (as the case may be), and
the Company will have the right to terminate my employment or consultancy (as
the case may be), at any time and for any reason, with or without cause.
10. This Agreement will be effective as of the first day of my
employment or consultancy (as the case may be) by the Company and the
obligations hereunder will continue beyond the termination of my employment and
will be binding on my heirs, assigns and legal
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representatives. This Agreement is for the benefit of the Company, its
successors and assigns (including all subsidiaries, affiliates, joint ventures
and associated companies) and is not conditioned on my employment for any period
of time or compensation therefor. I agree that the Company is entitled to
communicate any obligations under this Agreement to any future employer or
potential employer of mine.
11. During the term of my employment and for one (1) year thereafter, I
will not, without the Company's written consent, directly or indirectly be
employed or involved with any business developing or exploiting any products or
services that are competitive with products or services (a) being commercially
developed or exploited by the Company during my employment and (b) on which I
worked or about which I learned Proprietary Information during my employment
with the Company.
12. During the term of my employment and for one (1) year thereafter, I
will not personally or through others recruit, solicit or induce in any way any
employee, advisor or consultant of the Company to terminate his or her
relationship with the Company.
13. I acknowledge that any violation of this Agreement by me will cause
irreparable injury to the Company and I agree that the Company will be entitled
to extraordinary relief in court, including, but not limited to, temporary
restraining orders, preliminary injunctions and permanent injunctions without
the necessity of posting a bond or other security and without prejudice to any
other rights and remedies that the Company may have for a breach of this
Agreement.
14. I agree that any dispute in the meaning, effect or validity of this
Agreement will be resolved in accordance with the laws of the state of
Washington without regard to its or any other jurisdiction's conflict of laws
provisions. I further agree that if one or more provisions of this Agreement are
held to be unenforceable under applicable Washington law, such provision(s) will
be excluded from this Agreement and the balance of the Agreement will be
interpreted as if such provision were so excluded and will be enforceable in
accordance with its terms.
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15. I HAVE READ AND UNDERSTOOD THIS AGREEMENT. THIS AGREEMENT MAY ONLY
BE MODIFIED BY A SUBSEQUENT WRITTEN AGREEMENT EXECUTED BY THE PRESIDENT OR CHIEF
OPERATING OFFICER OF THE COMPANY.
Dated: ______________________, 2001.
By: _______________________________
_______________________________
Xxxxxx Xxx
Accepted and Agreed to:
CORIXA CORPORATION
By: ______________________________
Title: ___________________________
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EXHIBIT A
Corixa Corporation
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
1. The following is a complete list of all inventions or improvements
relevant to the subject matter of my employment or consultancy (as the case may
be) by Corixa Corporation (the "Company") that have been made or conceived or
first reduced to practice by me, alone or jointly with others, prior to my
employment or consultancy (as the case may be) by the Company that I desire to
remove from the operation of the Proprietary Information and Inventions
Agreement entered into between the Company and me.
________ No inventions or improvements.
________ Any and all inventions regarding:
________ Additional sheets attached.
2. I propose to bring to my employment or consultancy (as the case may
be) the following materials and documents of a former employer:
________ No materials or documents.
________ See below:
By: ______________________________
______________________________
Xxxxxx Xxx
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EXHIBIT B
In accordance with California Labor Code Section 2872, you are
hereby notified that your Confidentiality and Invention Assignment Agreement
does not require you to assign to the Company any Invention for which no
equipment, supplies, facility, or trade secret information of the Company was
used and that was developed entirely on your own time, and does not relate to
the business of the Company or to the Company's actual or demonstrably
anticipated research or development, or does not result from any work performed
by you for the Company.
Following is the text of California Labor Code Section 2870:
(a) Any provision in an employment agreement which provides that
an employee shall assign, or offer to assign, any of his or her
rights in an invention to his or her employer shall not apply to
an invention that the employee developed entirely on his or her
own time without using the employer's equipment, supplies,
facilities, or trade secret information, except for those
inventions that either:
(1) Relate at the time of conception or reduction to
practice of the invention to the employer's business, or
actual or demonstrably anticipated research or
development of the employer; or
(2) Result from any work performed by the employee for
the employer.
(b) To the extent a provision in an employment agreement
purports to require an employee to assign an invention otherwise
excluded from being required to be assigned under subdivision
(a), the provision is against the public policy of this state
and is unenforceable.
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