Confidential Employment Agreement
by and between
Molecular Robotics, Inc. (Employer)
and
Xxxx X. Xxxxxx (Employee)
Dated: April 10, 2000
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made on the date set forth on the
cover hereof by and between Molecular Robotics, Inc., a Delaware Corporation
("Company"), and Xxxx X. Xxxxxx ("Employee").
In consideration of their mutual acts and promises herein contained, the
Company and the Employee hereby agree as hereinafter provided.
Section 1. Definitions. As used herein, the following terms shall have the
meanings set forth below.
"Cause" shall have the meaning set forth in Section 7(b).
"Company" means the aforementioned Molecular Robotics and its successors and
assigns, including any successor to its business and/or substantially all of
its assets and any Person who becomes bound by the Company's obligations and
inures to its rights hereunder by agreement or operation of law.
"Confidential Information" means any material information and know-how disclosed
to or known by the Employee which relates to the Company's products; processes;
product development; research; policy matters relating to finance, accounting,
personnel and sales; and supplier relationships, customer lists, and price
lists, all to the extent that such information and know-how is not generally
known in the relevant trade or industry, including without limitation trade
secrets and proprietary data. "Confidential Information" shall also include
any other document or information (whether of the Company or of any supplier or
customer of the Company or of any other Person with whom the Company has an
agreement concerning the confidentiality of information) which is marked or
labeled "confidential," "proprietary," or words of similar import. As used
herein with respect to Confidential Information, "Company" includes any
corporation or other Person in which the Company possesses voting control
and/or owns more than 25% of the outstanding equity interests therein.
"Inventions" shall mean discoveries, concepts and ideas, whether or not
patentable, including but not limited to processes, methods, formulae,
techniques, designs, applications, as well as improvements thereof and know-how
related thereto, which relate to any existing or proposed or anticipated
business, product, service or research activities of the Company during the
period of the Employee's employment by the Company.
"Person" means an individual, a corporation, a partnership, an association, a
trust or other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
"Prohibited Activity" means (i) the engagement or participation, alone or with
others, in the ownership, management, operation or control of, or being a
director, officer, employee, owner or partner of, any business, corporation,
partnership, entity or other Person that produces, markets or sells products or
renders services in any geographical area in which the Company then produces,
markets or sells products or renders services which are the same, similar to or
otherwise competitive with such products or services of the Company, provided
such products or services of the Company are either the same as or are
substantially similar to or are improvements of, and are in the same line of
business as, the products and services of the Company produced, marketed sold or
rendered by the Company during the Employment; and (ii) the solicitation or
attempted solicitation of any officer or other employee of the Company to
terminate his or her employment with the Company in favor of employment with or
by the Employee or any other Person, and the inducement or attempted inducement
of any officer or employee of the Company to breach his or her employment
agreement with the Company. As used herein with respect to a Prohibited
Activity, "Company" includes any corporation or other Person in which the
Company possess voting control and/or owns more than 25% of the outstanding
equity interests therein.
Section 2. Employment and Term. The Company hereby employs the Employee,
and the Employee hereby accepts such employment by the Company, for the purposes
and upon the terms and conditions contained in this Agreement. The term of such
employment shall be for a period commencing and ending as set forth on Appendix
I hereto, unless sooner terminated under Section 7 ("Employment Term").
Section 3. Employment Capacity; Duties. The Employee shall be employed
throughout the Employment Term in the general employment capacity set forth in
Appendix I, and shall have the duties and responsibilities normally associated
with such capacity and such specific duties and responsibilities as the Company
may establish from time to time. The Employee accepts such employment and
agrees to devote himself and efforts (except for absences due to illness and
permitted vacations) to the business and affairs of the Company and the
performance of the aforesaid duties and responsibilities.
Section 4. Compensation. As remuneration for his employment services to the
Company, the Employee shall be compensated and paid a base salary at the annual
rates as set forth in Appendix I. The Employee's salary hereunder shall be
paid at such times and in such installment amounts as shall be established
pursuant to the Company's general salary payment plan, prorated on a daily basis
for any partial salary periods for which services are rendered at the beginning
and end of the Employment Term hereunder. The Employee shall be entitled to
such bonuses and other remuneration, if any, as the Company, in its discretion,
may determine from time to time.
As an incentive to join and to promote the future success of the Company, the
employee shall receive immediately upon his employment date 10,000 shares of
Molecular Robotics, Inc. Common Stock. Additionally, the Employee is eligible
for annual stock options in the amount of 10,000 shares of Molecular Robotics,
Inc. Common Stock.
Section 5. Employee Benefits; Expenses. The Employee shall be entitled to
such group life insurance, medical, dental, retirement, disability and other
group employee plans and benefits as are presently or may hereafter be provided
to other employees of the Company or its affiliates on a general basis.
Employee has his own health insurance and company shall provide no benefits
under this provision.
The Company shall pay or reimburse the Employee for reasonable expenses paid or
incurred by the Employee on behalf of the Company in connection with and as are
reasonably necessary for the rendering of his services to the Company hereunder.
Any such reimbursement shall be made within 30 days after the Employee has
submitted to the Company vouchers or reports for such expenditures in such
reasonable detail and with such supporting receipts and other evidence as the
Company typically requires for such purposes. Expense reimbursement shall be
limited to those expenses incurred as a result of a Company directed travel plan
or expense item and must be confirmed in advance of such expenditure.
Section 6. Certain Restrictive Covenants of the Employee. The Employee
covenants to and agrees with the Company that:
(a) Confidential Information. Except to the extent the Company otherwise
consents thereto, the Employee shall not disclose, disseminate, use for personal
benefit, or publish Confidential Information. Upon termination of the
Employment Term for whatever reason, the Employee shall return to or leave with
the Company, without making or retaining copies thereof, all documents, records,
notebooks and similar repositories containing Confidential Information.
The covenants of the Employee under this Section 6(a) shall survive any
termination of this Agreement, or any termination of the Employment Term,
irrespective of whether or not the Employee is then employed by the Company.
(b) Noncompetition. During the Employment Term and one year subsequent to
termination of employment, and for so long as the Employee is employed by the
Company in any capacity (whether pursuant to this Agreement or otherwise),
without the written consent of the Company the Employee shall not engage in any
Prohibited Activity.
Inventions. Any and all Inventions made or conceived in whole or in part by
the Employee during his employment by the Company (whether or not under this
Agreement), whether or not during business hours or with the use of Company
facilities, materials or personnel, shall be the property and Inventions of, and
are hereby assigned by the Employee to, the Company without any royalty or other
consideration payable by the Company. Promptly after the discovery of any such
Invention by the Employee, the Employee shall notify the Company thereof,
describe it in reasonable detail, and execute such assignments and other
documents and take such other actions as shall be necessary to perfect the
Company's interest therein. All applications for United States and foreign
letters patent with respect to inventions of the Employee shall be applied for
in the name of the Employee or such other name as the Company otherwise directs.
All rights to such patent applications and any letters patent granted with
respect thereto shall be the property of the Company and shall be and hereby are
assigned by the Employee to the Company. All reasonable expenses, including
travel, of the Employee incurred in the performance of his obligations to the
Company under this Section 6(c) shall be reimbursable to the Employee. To the
extent the Employee performs obligations under this Section 6(c) after
termination of his employment by the Company, the Company shall compensate the
Employee for the reasonable value of his time expended in the performance
thereof to the extent the obligations being performed were not required to be or
could not have been performed during the term of such employment.
Employee guarantees and warrants that this Agreement in no way conflicts with
any previous agreements undertaken as a result of Employee's graduate study
program.
In the event of a breach or threatened breach by the Employee of the provisions
of this Section 6, the Company shall be entitled to an injunction restraining
the Employee from committing or continuing such breach. Nothing herein
contained shall be construed as prohibiting the Company from pursuing any other
remedies available to it for such breach or threatened breach, including the
recovery of damages from the Employee. The covenants in this paragraph shall
run not only in favor of the Company and its successors and assigns but also in
favor of its subsidiaries and their respective successors and assigns and shall
survive the termination of this Agreement.
Section 7. Termination. It is understood that this Agreement can be extended
by the parties hereto (negotiated payment terms): The Employment Term shall
terminate effective upon the first to occur of the following:
(a) End of Term. The end of the Employment Term specified in Appendix I.
(b) For Cause. A date specified by the Company by termination notice to the
Employee upon either (i) a breach by the employee of any of his covenants and
agreements contained in this Agreement if such breach is not cured by the
Employee within 15 days after receiving notice of such breach from the Company
(other than a breach under Section 6(a) or 6(b) which shall have no curative
period), or (ii) for Cause. For purposes of this Agreement, "Cause" shall mean:
(A) the conviction of the Employee of any felony; (B) action by the Employee
constituting willful malfeasance or unlawful conduct which in any material
respect impairs the reputation, good will or business position of the Company or
involves misappropriation of the Company's funds or other assets; or (C) the
continued failure by the Employee to substantially perform his employment duties
hereunder after having received notice from the Company specifying such failure.
(c) Death. The death of the Employee.
(d) Disability. The inability of the Employee to perform his duties and
responsibilities hereunder for a continuous period of 30 days, provided the
Company gives the Employee 10 days notice of such termination.
Optional Termination. A date specified by notice given by either the Employee
or the Company to the other at least 30 days prior to such termination date.
Any notice of termination by either party under this Section 7 shall clearly
state that the terminating party elects to terminate the Employment Term and
upon which subsection of this Section 7 such party is relying as the basis for
such termination.
If the Employment Term is terminated under this Section 7, then except for the
provisions of Section 6 which shall survive any such termination and except for
the payment of severance benefits as provided in Section 8, this Agreement shall
be terminated and of no further force or effect; the Employee shall have no
obligation or duty hereunder to be employed by the Company in any capacity; and
the Company shall have obligation to employ the Employee in any capacity.
Section 8. Severance Benefits. The Company shall pay to the Employee the
respective amounts provided below upon certain stated terminations of the
Employment Term. All payments shall be made in cash.
(a) If the Employment Term is terminated for any reason or cause, whether or
not pursuant to Section 7, the Company shall pay the Employee his unpaid base
salary through the effective date of the termination at his then effective base
salary rate. Payment shall be made within 30 days after termination.
(b) If the Employment Term is terminated by the Company at its option under
Section 7(e), then the Company shall continue payment to the Employee of his
base salary at the rate in effect at the effective date of termination for a
period of one month after such date, irrespective of whether the Employee has
obtained other employment. Such payments shall be made at the times, and in
the amounts, that would have been applicable but for the termination.
Notwithstanding the foregoing, the Company shall not be obligated to continue
any salary payments if the Employee violates any of his covenants or
restrictions under Section 6 after termination or is determined to have violated
them prior to termination.
Except solely as provided in Section 8(b), the Employee shall be entitled to no
severance payments or benefits if the Employment Term is terminated under
Section 7(a), Section 7(b), Section 7(c), or Section 7(d) or by the Employee
under Section 7(e), except for the provisions of Section 3.
The Employee acknowledges and agrees that payment in accordance with this
Section 8 shall be deemed to constitute full settlement and discharge of all
obligations of the Company arising out of this Agreement and the termination of
the Employment Term hereunder, except for any vested rights the Employee may
have under any retirement plan, thrift plan, savings plan, stock option plan or
deferred compensation or similar plan in which the Employee is a participant or
a former participant at the time of termination.
Section 9. Successors and Assigns. Except as hereinafter expressly provided,
the agreements, covenants, terms and provisions of this agreement shall bind the
respective heirs, executors, administrators, successors and assigns of the
parties. Specifically, and not by way of limitation of the foregoing, the
Employee shall be bound by the terms and conditions of this Agreement to any
successor or assignee of the Company's rights and obligations hereunder as a
result of any merger, consolidation or sale or lease of all or substantially all
of the Company's business and assets. However, the Employee's right to receive
payment hereunder shall not be assignable or transferable, whether by pledge,
creation of a security interest or otherwise, and in the event of any attempted
assignment or transfer contrary to this paragraph the Company shall have no
liability to pay to the purported assignee or transferee any amount so attempted
to be assigned or transferred.
Section 10. Notices. Any notice or other communication required or desired
to be given hereunder shall be in writing and shall be deemed sufficiently given
when personally delivered or when mailed first class certified mail, return
receipt requested and postage prepaid, addressed to the parties at their
respective address as set forth in Appendix I or such other addresses shall be
given by notice of any party.
Section 11. Waiver; Remedies Cumulative. No waiver of any right or option
hereunder by any party shall operate as a waiver of any other right or option,
or the same right or option as respects any subsequent occasion of its exercise,
or of any legal remedy. No waiver by any party of any breach of this Agreement
or of any agreement or covenant contained herein shall be held to constitute a
waiver of any other breach or a continuation of the same breach. All remedies
provided by this Agreement are in addition to all other remedies by it or the
law provided.
Section 12. Governing Law; Severability. The terms of this Agreement and the
performance of the parties hereunder shall be interpreted and governed by the
laws of the State of California. If any one or more provisions herein contained
shall be held invalid or unenforceable by an authority of competent
jurisdiction, then such provisions shall be deemed separable from the remaining
provisions of this Agreement and such holding shall in no way affect the
validity or enforceability of any of the other covenants, agreements, terms and
provisions hereof.
Section 13. Miscellaneous. This Agreement constitutes the entire
understanding of the parties with respect to the subject matter hereof, and may
not be modified, changed or amended except in writing signed by each of the
parties hereto. This Agreement shall be signed in multiple counterparts, each
of which shall be deemed an original hereof, and shall be binding on each party
so long as each has signed a counterpart hereof irrespective of whether all
signatories appear on the same counterpart. The captions of the several sections
and subsections of this agreement are not a part of the context hereof, are
inserted only for convenience in locating such section, and shall be ignored in
construing this Agreement. Any terms and conditions in addition to or in
modification of those heretofore set forth in this Agreement may be set forth in
Appendix I. Appendix I and any exhibit referred to herein or in Appendix I are
hereby incorporated by reference to and made part of this Agreement in their
entirety.
Molecular Robotics Xxxx X. Xxxxxx
0000 Xxxxxx Xxx., Xxxxx #000 00000 Xxxxxxx Xxx. #000
Xxx Xxxxxxx, XX 00000 Xxx Xxxxxxx, XX. 00000
By /s/XXXXX XXXXX By /s/XXXX X. XXXXXX
Xxxxx Xxxxx, Chairman of the Board Xxxx X. Xxxxxx
Attachment: Appendix I
Appendix I
Molecular Robotics, Inc. ("Company")
Employment Agreement with Xxxx X. Xxxxxx ("Employee")
The Employment Term commences April 10, 2000 and ends April 9, 2003 subject to
the provisions of Section 7.
Employment capacity: Project Manager, maximum of 80 hours per month with the
following defined objectives and responsibilities:
Software development for NanoTag Reader
Technology advisor to MR staff
Develop Molecular Computer (M-R to have first right of refusal to license this
technology)
Provide consultation and assistance in development of MEMS products
Provide consultation and assistance in development of biotechnology products
in concert with Xxxx Xxxxxxxxx and Xxxxxxx Xxxxx
Spot new project opportunities for M-R
Provide general consultation to M-R staff on various projects undertaken by M-R
Consult on Quantum Computer - if project undertaken by M-R.
Salary Structure:
Period Weekly Base Salary Rate
4/10/00 to 5/9/00 $1,000
5/10/00 to 4/9/01 $1,500
4/10/01 to 4/9/02 to be negotiated
4/10/02 to 4/9/03 to be negotiated
Additional Terms:
Participation in Stock Option Program up to 10,000 shares per year of M-R
Stock.
Initial sign-on bonus of 10,000 shares of M-R Stock.
Participation in annual company bonus or profit sharing program
Reimbursement of travel expenses
Notice address of Company: Notice address of Employee:
Molecular Robotics, Inc. Xxxx X. Xxxxxx
0000 Xxxxxx Xxx., Xxxxx #000 00000 Xxxxxxx Xxx. #000
Xxx Xxxxxxx, XX 00000 Xxx Xxxxxxx, XX. 00000
Confirmed:
Molecular Robotics, Inc.
By /s/XXXXX XXXXX /s/XXXX X. XXXXXX
Xxxxx Xxxxx, Chairman of the Board Xxxx X. Xxxxxx, Employee
