Exhibit 10.7
EMPLOYMENT AGREEMENT
Agreement made as of the 15th day of December, 1993, between PROGENICS
PHARMACEUTICALS, INC., a Delaware corporation (the "Corporation") with its
principal place of business at Xxx Xxx Xxxx Xxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx
00000 and XXXX X. XXXXXX ("MADDON") residing at 00 Xxxxx Xxxxxx, Xxxxxxxxx
00X, Xxx Xxxx, Xxx Xxxx 00000.
RECITALS
A. The Corporation is engaged in the business of developing and marketing
pharmaceutical products.
B. The Corporation wishes to employ MADDON as Chairman, President, Chief
Executive Officer and Chief Science Officer, and MADDON wishes to serve the
Corporation in such capacities.
AGREEMENT
In consideration of the facts mentioned above and the mutual promises set
forth below, the parties agree as follows:
1. EMPLOYMENT.
The Corporation hereby employs MADDON as Chairman, President, Chief
Executive Officer and Chief Science Officer, and MADDON hereby agrees to
serve the Corporation in such capacities. MADDON and the Corporation agree
that the Corporation may determine that it is in the best interests of the
Corporation to hire additional senior managerial
personnel, including possibly a Chairman, Chief Executive Officer or
President. MADDON agrees to relinquish one or more of these titles so long as
he continues to be employed as either Chairman or Chief Executive Officer and
as Chief Science Officer.
2. TERM.
2.1 "The Term" as used herein shall mean the Initial Term plus any Renewal
Term.
2.2 This Agreement will be for a term of Five (5) years (the "Initial
Term"), commencing on the date hereof, unless sooner terminated pursuant to
Section 8.
2.3 Provided MADDON is not in default under his employment agreement at the
time the relevant Term expires, this Agreement shall be renewed for five
successive periods of One (1) year each ("Renewal Term(s)"), unless either
the Corporation or MADDON gives notice to the other of its or his intention
not to renew at least Ninety (90) days before the end of the Initial Term or
any Renewal Term.
3. EMPLOYEE'S DUTIES.
3.1 As Chairman, President and Chief Executive Officer, MADDON will have
broad management responsibilities for the activities of the Corporation.
As Chief Science Officer, MADDON's duties shall include, without limitation,
formulating the scientific strategies of the Corporation in conjunction with
the Scientific Advisory Board, presenting such strategies to the Board of
Directors of the Corporation
- 2 -
(the "Board") for review and, subject to approval of the Board, implementing
such strategies, as well as overseeing all aspects of day-to-day operations
of the Corporation's basic science laboratory research involving the
development of therapeutics, vaccines and diagnostics for human viral
diseases. In addition, as Chief Science Officer, Maddon will provide specific
direction for senior laboratory personnel and ensure the proper documentation
of results obtained by laboratory personnel under his direction.
3.2 Except as provided herein, MADDON will devote substantially all of
his business time and energies solely to the business and affairs of the
Corporation during the Term. MADDON presently serves on the editorial boards
of two scientific journals and on committees of the National Institute of
Health and may continue these activities and such other similar activities
approved by the Corporation during the Term. MADDON shall not, at any time
during the Term, directly or indirectly, enter the employ of, or render any
service to, any person, partnership, association, corporation or other entity
other than the Corporation, without prior consent of the Board.
3.3 MADDON will use his best efforts, skill and abilities to promote the
Corporation's interests and perform any duties which may be reasonably
assigned to him by the Board.
- 3 -
3.4 MADDON consents to and agrees to cooperate with the Corporation to
increase the amount of Key-man life insurance on MADDON's life from the
present level of One Million Dollars to an amount determined appropriate by
the Board.
4. REMUNERATION.
The Corporation will pay MADDON, for all services to be rendered under
this Agreement, an annual salary ("Salary"), payable in equal bi-weekly
installments, of One Hundred Fifty Thousand ($150,000) Dollars, adjusted as
hereinafter provided, for the Term.
4.2 Each year prior to the initial public offering of the stock of the
Corporation, on January 1 (beginning with January 1, 1995), the annual Salary
in effect shall be multiplied by the sum of 100% plus the percentage increase
in the "Index" (as defined below) reading on such anniversary date over the
"Base Index" (as defined below) and the product shall be the adjusted Salary
for each succeeding twelve (12) month period during the Term.
The following terms are defined:
(a) "Index" shall mean the "Consumer Price Index for All Urban Consumers
(1967 = 100)" specified for "All Items" relating to New York City and
published by the Bureau of Labor Statistics of the United States Department
of Labor. In the event that the Index shall hereafter be converted to a
different standard reference base or otherwise revised, the
- 4 -
determination of the increases in the Salary shall be made on the basis of
such conversion factor, formula or table for converting the Index as may be
published by the Bureau of Labor Statistics, or if said Bureau shall not
publish the same, then with the use of such conversion factor, formula or
table as may be published by Xxxxxxxx-Xxxx, Inc., or, failing such
publication, by any other nationally recognized publisher of similar
statistical information. In the event that either Index shall cease to be
published, then, for the purpose of this Section 4, there shall be
substituted for the Index such other index as the Corporation and MADDON
shall agree upon, and if they are unable to agree upon such other index
within ninety (90) days after the Index ceases to be published, such matter
shall be determined in New York City by arbitration in accordance with the
Rules of the American Arbitration Association.
(b) The "Base Index" shall mean the Index last published prior to December
15, 1993.
4.3 Each year following the initial public offering of the stock of the
Corporation on the anniversary date of the commencement of MADDON's full time
employment, the annual Salary then in effect shall be multiplied by 110% and
the product shall be the adjusted Salary for the next succeeding twelve (12)
month period during the Term.
4.4 It is intended that the Salary shall be increased should the
Corporation's profits increase substan-
- 5 -
tially. The Salary shall be reviewed annually and should the Board consider
circumstances appropriate, it shall be increased in an amount the Board
determines in its sole discretion. In addition, should the Board consider
circumstances appropriate, MADDON shall receive an annual bonus payment in
an amount the Board determines appropriate, but in no event shall this amount
be less than Fifteen Thousand ($15,000) Dollars (the "Minimum Bonus").
4.5 This Agreement will not be deemed abrogated or terminated if the
Corporation, in its discretion, determines to increase the Salary of MADDON
for any period of time, or if MADDON accepts an increase; but, except as
specifically provided in this Agreement, the Corporation shall have no
obligation to make any increase in the Salary. Any increase in MADDON's
Salary by the Corporation shall be incorporated into his annual Salary then
in effect for purposes of future payments of and adjustments to the Salary.
5. STOCK HOLDINGS AND STOCK OPTIONS.
5.1 EXISTING STOCK. MADDON is the owner of One Million (1,000,000) shares
of Common Stock of the Corporation, which the Corporation acknowledges are fully
vested in MADDON and are not subject to any repurchase or other restrictions
except pursuant to applicable securities and other laws. Each of the
Shareholders' Agreement, dated as of October 26, 1987, between the Corporation,
MADDON and Xxxxxx X. Xxxxxx, as amended, and the Stock Divestment Agreement,
dated as of
- 6 -
June 30, 1988, is hereby terminated as of the date of this Agreement.
5.2 ADDITIONAL EQUITY-BASED INCENTIVES. In order to provide MADDON with
an additional incentive to advance the business of the Corporation, the
Corporation hereby grants to MADDON the following:
5.2.1 TRADITIONAL STOCK OPTIONS. The Corporation hereby agrees to grant
to MADDON under the Corporation's existing or new stock option plan, irrevocable
options to purchase up to 500,000 shares of the Corporation's Common Stock
(the "Traditional Options"), as follows:
a. INCENTIVE STOCK OPTIONS. MADDON shall have the right to elect to
receive options which constitute Incentive Stock Options ("ISOs"), as
defined in Section 422A of the Internal Revenue Code of 1986, as amended
(the "Code") to the maximum extent allowable under Section 422A, with an
option exercise price of $4.40 per share, which is 110% of the price at
which the Series B Preferred Stock Units of the Corporation were recently
sold. The parties agree that $4.40 is well in excess of 110% of the current
fair market value of the Corporation's Common Stock. The ISOs shall have a
duration of five (5) years from the date hereof. Twenty percent (20%) of
the ISOs shall be exercisable immediately on the date hereof and an
additional twenty percent (20%) shall be exercisable on each anniversary of
the date hereof. Based on this vesting schedule and an assumption that the
fair market value of the Common Stock is $4.00, the amount and exercise
schedule of the ISOs shall be as follows, subject to the forfeiture and
acceleration provisions set forth below:
Incremental
Date Options Exercisable Value Becoming Exercisable
---- ------------------- --------------------------
12/15/93 22,727 $90,908
12/15/94 22,727 $90,908
12/15/95 22,727 $90,908
12/15/96 22,727 $90,908
12/15/97 22,727 $90,908
--------
T0TAL 113,635
- 7 -
b. NONQUALIFIED OPTIONS. The balance of the Traditional Options
(386,365 shares if MADDON elects to receive ISOs as provided above) will
be in the form of non-qualified options ("NQOs") at an exercise price of
$4.00 per share. Subject to the forfeiture and acceleration provisions set
forth below, the NQOs shall vest, be exercisable and expire as follows
(share numbers based on ISOs having been granted as described above):
Tranche Tranche Cumulative
Tranche Execisable as to Exercisable Exercisable As
Vesting Date Shares % Total Until of Vesting Date
------------ ------ ------- ----------- ----------------
Dec 15, 1993 77,273 20% Dec 15, 2003 77,273 Shares
Dec 15, 1994 77,273 20% Dec 15, 2004 154,546 Shares
Dec 15, 1995 77,273 20% Dec 15, 2005 231,819 Shares
Dec 15, 1996 77,273 20% Dec 15, 2006 309,092 Shares
Dec 15, 1997 77,273 20% Dec 15, 2007 386,365 Shares
c. ACCELERATION OF EXERCISE SCHEDULE. Subject to any limitations
imposed under Section 422A of the Code with respect to acceleration of
ISOs, all Traditional Options shall vest and become fully exercisable
immediately prior to the consummation of any transaction which results in
an Acquisition. The term "Acquisition" shall mean (a) the merger of the
Corporation into or the consolidation of the Corporation with any
corporation where the Corporation is not the surviving organization (other
than a merger or consolidation undertaken for the primary purpose of
changing the state of incorporation of the Corporation), (b) a Change in
Control, or (c) a sale of all or substantially all of the assets or stock
of the Corporation to one or more other corporations or entities. The term
"Change in Control" shall mean a change in control of the Company such that
the stockholders of the Company immediately prior to such change in control
would not immediately after such change in control beneficially own voting
securities representing in the aggregate more than 50% of the combined
voting power of the voting securities of the surviving entity, or the
members of the Board of Directors of the Company immediately prior to the
change in control would not immediately after the change in control
constitute a majority of the Board of Directors of the subsequent
corporation or entity.
5.2.2 VALUATION BASED OPTIONS. In addition to the Traditional Options,
the Corporation hereby agrees to grant to MADDON under the Corporation's
existing or new stock
- 8 -
option plan irrevocable NQOs to purchase up to 500,000 shares of the
Corporation's Common Stock at a price of $4.00 per share (the "Valuation
Based Options"). The Valuation Based Options shall have a duration of ten (10)
years from the date hereof. MADDON may exercise the Valuation Based Options in
accordance with the following exercise provisions:
x. XXXXXX may exercise the Valuation Based Options at any time on or
after the earlier to occur of (i) the date and time at which the Securities
and Exchange Commission declares effective the Corporation's registration
statement for the initial public offering of the Corporation's Common Stock
or (ii) immediately prior to the closing of an Acquisition of the
Corporation.
b. The portion of the Valuation Based Options which MADDON may exercise
at any time shall be as follows:
(1) If the Established Price is less than Eight Dollars ($8.00)
per share, then no portion of the Valuation Based Options may be
exercised.
(2) If the Established Price is equal to or greater than Eight
Dollars ($8.00) per share but less than Nine Dollars ($9.00) per share,
then MADDON may exercise the Valuation Based Options for 100,000
Shares.
(3) If the Established Price is equal to or greater than Nine
Dollars ($9.00) per share but less than Ten Dollars ($10.00) per share,
then MADDON may exercise the Valuation Based Options for 200,000
Shares.
(4) If the Established Price is equal to or greater than Ten
Dollars ($10.00) per share but less than Fourteen Dollars ($14.00) per
share, then MADDON may exercise the Valuation Based Options for 300,000
Shares.
(5) If the Established Price is equal to or greater than Fourteen
Dollars ($14.00) per share but less than Sixteen Dollars ($16.00) per
share, then MADDON may exercise the Valuation Based Options for 400,000
Shares.
- 9 -
(6) If the Established Price is equal to or greater than Sixteen
Dollars ($16.00) per share, then MADDON may exercise the Valuation
Based Options for 500,000 Shares.
The term "Established Price" shall mean (a) in the case of an initial
public offering, the per share offering price to the public of the
Corporation's Common Stock, or (b) in the case of an Acquisition, the gross
amount per share paid or available for distribution to holders of Common
Stock (assuming that all convertible or exchangeable securities are
converted or exchanged in accordance with their terms and all vested
options [other than the Valuation Based Options] are exercised). In the
case of an Acquisition in which there is an "earn-out" or other contingent
payment, the Established Price will include such additional payment as it
is earned or received.
Notwithstanding the foregoing, if following an initial public offering
of the Corporation's Common Stock, the Average Price during the Initial
Term (or any subsequent period while this Agreement is in effect) first
reaches the dollar amount set forth below, the Valuation Based Options
shall become exercisable to the extent not exercisable under the
Established Price provisions set forth above:
When Average Price Amount Becoming Cumulative Amount
First reaches Exercisable Exercisable
------------------ --------------- -----------------
$ 8.00 100,000 100,000
$ 9.00 100,000 200,000
$10.00 100,000 300,000
$14.00 100,000 400,000
$16.00 100,000 500,000
"Average Price" shall mean the thirty (30) day average market price of one
share of Common Stock, determined according to the procedures set forth in
the Corporation's 1993 Stock Option Plan.
By way of illustration, if the Established Price in an initial public
offering is $10.00, the Valuation Based Options shall become exercisable as
to 300,000 shares. If subsequent to the initial public offering, the
Average Price reaches $14.00, the Valuation Based Options shall become
exercisable as to an additional 100,000 shares, bringing the cumulative
exercisable amount to 400,000.
- 10 -
5.2.3 GENERAL TERMS OF OPTIONS. The Traditional Options and the Valuation
Based Options (collectively, the "Options") will be set forth in one or more
written stock option agreements to be executed and delivered to MADDON
contemporaneously with the execution and delivery of this Agreement. The
option agreement(s) shall provide that in the event MADDON wishes to exercise
the exercisable portion of an option, MADDON shall send written notice to the
Corporation specifying a date (not later than twenty (20) business days and
not earlier than the next business day following the date such notice is
given) for the closing of such purchase. In the event of any change in the
number of issued and outstanding shares of Common Stock by reason of any
stock dividend, stock split, split-up, recapitalization, merger or other
change in the corporate or capital structure of the Corporation which affects
the holders of Common Stock generally, the number of shares subject to the
Options and the purchase price per share shall be appropriately adjusted to
restoreMADDON to his rights hereunder. The exercise price of the Options may
be paid by MADDON in cash, by a promissory note in a form and on terms
acceptable to the Corporation (provided the par value of the shares is paid
in cash and the issuance of shares against such note does not violate margin
rules or other laws) or by the delivery of Common Stock of the Corporation.
In the latter case the fair market value of the Common Stock delivered will
be applied to the exercise price.
- 11 -
Except as provided herein or as may be required under Section 422A of the
Code with respect to ISOs, neither the Traditional Options nor the Valuation
Based Options shall be subject to any limitations under any stock option plan
or otherwise on the post-employment period during which such options may be
exercised or to any repurchase rights by the Corporation.
5.3 REGISTRATION RIGHTS. If at any time the Corporation proposes to
register any of its Common Stock under the Securities Act of 1993, as amended
(the "Securities Act"), or to register or qualify such securities under state
securities laws ( "Blue Sky Laws" ) for the purpose of an offering or sale by
or on behalf of any holder of stock of the Corporation, then the Corporation
shall give MADDON prompt notice of the Corporation's intention to do so, at
least twenty (20) business days prior to the time when any registration
statement is filed with the Securities and Exchange Commission (the
"Commission") or any state securities commission. The Corporation will keep
MADDON informed of the general schedule for such filing and any material
delays therein.
Upon the written direction of MADDON given within fifteen (15) days
following the receipt by MADDON of such written notice from the Corporation,
the Corporation shall include in such registration statement and/or Blue Sky Law
filing such number of the shares owned by MADDON (or to be
- 12 -
owned as a result of any exercise of Options by MADDON in connection with the
registration) (such owned or exercisable option shares being herein referred
to as "MADDON Registrable Securities") as MADDON may request; provided,
however, that in the event that the managing underwriter advises the
Corporation that inclusion of the MADDON Registrable Securities or
securities owned by other stockholders will in the judgment of the managing
underwriter adversely affect the ability of the underwriters to market the
securities being registered on behalf of the Corporation, then the
Corporation may reduce the number of MADDON Registrable Securities included
in the registration so that the total number of shares being registered meets
the requirements of the managing underwriter; provided, however, that the
number of MADDON Registrable Securities and the number of shares of other
stockholders to be included in the registration will be reduced pro rata
based on the number of shares initially requested to be included in such
registration by MADDON and by such other stockholders. Upon the registration
of the MADDON Registrable Securities, the Corporation agrees to provide
customary indemnification, to the extent permitted by law and requested by
the managing underwriter, to MADDON and each person who participates as
underwriter in any offering or sale of such MADDON Registrable Securities.
- 13 -
The Corporation covenants that it will not grant any registration rights to
any other persons which are more favorable than those granted to MADDON hereby.
6. BENEFITS AND FACILITIES.
MADDON shall receive the same basic insurance (life, medical and dental)
benefits provided to all the other executives of the Corporation, in
accordance with the Corporation's general policies. MADDON shall receive
disability insurance coverage equal to seventy percent (70%) of his Salary
and otherwise on the terms provided to other executives of the Corporation.
MADDON shall at all times have such amenities (e.g., office, secretarial,
and laboratory facilities) appropriate to his position to the extent that the
finances of the Corporation permit.
7. EXPENSES.
The Corporation will pay or reimburse MADDON for all reasonable and
necessary traveling and other expenses, including private car service commuting
expenses, or in the alternative, car leasing expenses, incurred or paid by
MADDON in connection with the performance of his services under this Agreement,
on presentation of expense statements or vouchers and such other supporting
documentation as the Board may from time to time request.
- 14 -
8. TERMINATION.
8.1 The Term and this Agreement, except those provisions specified to
survive termination, shall terminate before the expiration date set forth above
in Section 2 on the occurrence of the earlier of the following:
8.1.1 On the dissolution of the Corporation;
8.1.2 On the death or disability of MADDON. Disability shall mean the
failure by MADDON, because of illness or incapacity, to render for One
Hundred Twenty (120) days consecutively or One Hundred Eighty (180) days
cumulatively during any year of the Term, services of the character
contemplated by this Agreement;
8.1.3 On the dismissal of MADDON for good cause shown, which shall mean
such cause as the courts of the State of New York (including federal courts)
have determined to be justifiable cause for termination of employment including
the continual failure by MADDON to perform substantially his duties with the
Corporation (other than any such failure resulting from incapacity due to
physical or mental illness) after a demand for substantial performance is
delivered to MADDON by the Board, conviction of a felony involving moral
turpitude, habitual drunkenness, excessive absenteeism not related to sick
leave or vacations (but only after notice from the Board followed by a
repetition of such excessive absenteeism), dishonesty directly and materially
- 15 -
injurious to the Corporation, or continuous conflict of interest after notice
in writing from the Board;
8.1.4 On the dismissal of MADDON without cause; and
8.1.5 On the resignation of MADDON.
8.2 Upon termination of the Term and this Agreement at the expiration of
the Term pursuant to Section 2 or on the dissolution of the Corporation,
MADDON shall (i) be entitled to receive any amounts from the Corporation then
due but unpaid plus the Minimum Bonus, prorated to the date of termination,
(ii) be vested with all of the Options under Section 5.2 hereof, and (iii)
shall have the right to exercise such Options in accordance with Section 5.2
hereof. Upon the dismissal of MADDON for good cause or on the resignation of
MADDON, MADDON shall (i) be entitled to receive any amounts from the
Corporation then due but unpaid plus the Minimum Bonus, prorated to the date
of termination, (ii) have the right to exercise any ISOs and Valuation Based
Options then vested in MADDON only for a period of three months after the
date of termination, (iii) have the right to exercise any other Options then
vested in MADDON in accordance with Section 5.2.1 hereof, and (iv) any
Options not vested at the date of termination shall be forfeited. Upon the
termination of the Term and this Agreement on the death or disability of
MADDON, MADDON's estate or MADDON, as the case may be, shall (i) be entitled
to receive any amounts from the Corporation
- 16 -
then due but unpaid plus the Minimum Bonus, prorated to the date of
termination, (ii) have the right to exercise any Traditional Stock Options
vested in MADDON in accordance with Section 5.2.1, (iii) have only one year
after such termination to exercise any Valuation Based Options, and (iv) any
Options not vested at the date of termination shall be forfeited. Upon
termination of the Term and this Agreement on the dismissal of MADDON without
cause, MADDON shall (i) be entitled to receive any amounts from the
corporation then due but unpaid plus the Minimum Bonus, prorated to the date
of termination, (ii) for a period of two years (but in no event after the end
of December 14, 1998) following such termination, continue to receive the
annual Salary, the Minimum Bonus, and the basic insurance benefits described
in Section 5 hereof, (iii) be vested with all of the Options under Section
5.2 hereof, (iv) have the right to exercise any Traditional Stock Options in
accordance with Section 5.2.1, and (v) have the right to exercise any
Valuation Based Options for a period of five years from the date of
termination.
9. COVENANT NOT TO COMPETE AND NON-DISCLOSURE OF CONFIDENTIAL INFORMATION.
9.1 During or after the Term of this Agreement and/or MADDON's
employment by the Corporation, MADDON shall not without the Corporation's
prior written consent use or disclose any "Proprietary Information" (as
defined in Section 10.1) or any other confidential information relating to the
- 17 -
Corporation (including, but not limited to, data on which patents have been
applied for or issued or other proprietary intellectual property, customer
lists, financial information, sales and marketing data), or its business,
obtained during the course of his employment.
9.2 MADDON shall not during the Term hereof and for a period of Two (2)
years after the expiration or earlier termination of the Term, directly or
indirectly, own, manage, operate, or control, any business in competition
with or similar to the type of business conducted by the Corporation, and
will not render services, directly or indirectly, to any "Conflicting
Organization" (as hereinafter defined). The foregoing shall not apply to
the ownership by MADDON of less than One percent (1%) of the securities of a
publicly traded organization. "Conflicting Organization" means any person or
organization engaged in or about to become engaged in servicing, production,
marketing or selling of, a "Conflicting Product" (as hereinafter defined);
provided, however, the foregoing shall not prohibit MADDON from working for a
division or other business unit of an organization involved with a
Conflicting Product provided such division or business unit is not itself
involved with a Conflicting Product. "Conflicting Product" means any product,
process, or service, in existence or under development, of any person or
organization other than the Corporation which resembles or competes with a
product, process, or service of the
- 18 -
Corporation, in existence or under development. In the event that the
Corporation terminate MADDON's employment under this Agreement without cause,
MADDON's obligation under the foregoing with respect to non-competition with
the Corporation for a period of Two (2) years after such termination shall no
longer be applicable.
9.3 During or after the Term of this Agreement and/or MADDON's
employment by the Corporation, MADDON shall not solicit or induce any
employees of the Corporation to leave the Corporation to work for any entity
or person engaged in the same business as the Corporation, either directly or
indirectly.
10. PROPRIETARY INFORMATION.
10.1 MADDON understands that the Corporation possesses and will
continue to possess "Proprietary Information" (as defined below) and/or
"Inventions" (as defined below) that have been created, discovered, or
developed, or have otherwise become known to the Corporation.
10.1.1 For purposes of this Agreement, particularly for this Section
10, "Proprietary Information" shall include, but not be limited to, trade
secrets, processes, formulae, data and know-how, improvements, "Inventions"
(as defined below), techniques, marketing plans, strategies, forecasts and
customer lists, improvements, including without limitation, information
created, discovered, developed or made known by MADDON and within the scope
of this Agreement or to MADDON
- 19 -
during the period of or arising out of his retention by the Corporation,
and/or in which property rights have been assigned or otherwise conveyed to
the Corporation, which information has commercial value in the business in
which the Corporation is engaged.
10.1.2 For purposes of this Agreement, particularly for this Section 10,
"Inventions" shall mean any improvements, inventions, formulae, processes,
techniques, know-how and data, whether or not patentable, made or conceived
or reduced to practice or learned by MADDON, either alone or jointly with
others, during the period of his employment, and/or during the twelve
(12)months immediately following termination of his employment which:
(a) are within the scope of the duties to be performed by MADDON
under this Agreement and are related to or useful in the business of the
Corporation, or
(b) result from tasks assigned MADDON by the Corporation, or
(c) are funded by the Corporation, or
(d) result from use of premises owned, leased or contracted for
by the Corporation.
10.2 In consideration of his employment by the Corporation and the
compensation received by MADDON from the Corporation, MADDON agrees as
follows:
10.2.1 All Proprietary Information including, but not limited to, all
"Inventions" as defined above, shall
- 20 -
be the sole property of the Corporation and its assigns and MADDON assigns to
the Corporation any rights he may have or acquire in all Proprietary
Information.
10.2.2 All documents, data, records, apparatus, equipment, and other
physical property, whether or not pertaining to Proprietary Information,
furnished to MADDON by the Corporation or produced by MADDON or others in
connection with his employment, shall be and remain the sole property of the
Corporation and shall be returned promptly to the Corporation as and when
requested by the Corporation. Should the Corporation not so request, MADDON
shall return and deliver all such property upon termination of his employment
with the Corporation for any reason and MADDON will not take with him any
such property or any reproduction of such property upon such termination but
this shall not apply to MADDON's personal diaries and papers provided same do
not contain information relating to Proprietary Information or Inventions.
10.2.3 MADDON will promptly disclose all Inventions to the Corporation, or
any persons designated by it. Such disclosures shall continue for One (1)
year after termination of this Agreement with respect to anything that would
be an Invention if made, conceived, reduced to practice or learned during the
Term.
10.2.4 The Inventions shall become and remain the property of the
Corporation, whether or not patent
- 21 -
applications are filed thereon. Upon request and at the expense of the
Corporation, MADDON shall make application through the patent attorneys or
agents of the Corporation for letters patent of the United States and any and
all other countries at the discretion of the Corporation on the Inventions
and to assign all such applications to the Corporation or its order
immediately, all without additional payment, during MADDON's period of
employment by the Corporation and for one year after the termination of
employment. MADDON shall give the Corporation, its attorneys and agents all
reasonable assistance in preparing and prosecuting such applications and, on
request of the Corporation, MADDON shall execute all papers and do all things
that may be reasonably necessary to protect the rights of the Corporation and
vest in it or its assigns the inventions, applications, and letters patent
herein contemplated.
11. RETURN OF DOCUMENTS.
On the expiration or earlier termination of the Term or MADDON's
resignation, discharge or earlier departure from the Corporation, MADDON
shall promptly surrender to the Corporation all of the Corporation's books,
records, documents and customer lists and/or other of the Corporation's
materials or records he may have in his possession, including but not limited
to the materials described in Section 10.2.2.
- 22 -
12. REMEDIES.
12.1 MADDON agrees that his services are of a special, unique and
extraordinary character, that it would be extremely difficult to replace such
services, and that, in the event of a breach or threatened breach of any of
the provisions of this Agreement, the Corporation will not have an adequate
remedy at law. Accordingly, the Corporation shall be entitled to enforce such
provisions by means of injunctive relief as may be available to restrain
MADDON and any business, firm, partnership, individual, corporation or entity
participating in such breach or threatened breach from the violation of the
provisions hereof, without thereby waiving any other legal or equitable
remedies available to the Corporation. Likewise, Maddon shall be entitled to
enforce the provisions of this Agreement by means of injunctive relief as may
be available to restrain the Corporation from the violation or threatened
violation of the provisions hereof, without thereby waiving any other legal
or equitable remedies available to him.
12.2 If any of the covenants contained in this Agreement or any part
thereof is held to be unenforceable because of the duration thereof or the
area or scope covered thereby, the parties hereby agree that the court making
such determination shall have the power to reduce the duration, area and/or
scope of such covenant so that in its reduced form, the covenant shall be
enforceable.
- 23 -
13. TRANSFER AND ASSIGNMENT.
This Agreement will extend to and be binding on MADDON, his legal
representatives, heirs, and distributees, and on the Corporation, its
successors and assigns, and the term "Corporation" as used in this Agreement
will include such successors and assigns.
14. MODIFICATIONS.
This instrument contains the entire agreement of the parties and the
parties have made no other agreements, representations or warranties relating
to the subject matter of this Agreement. No modification of this Agreement
will be valid unless made in writing and signed by the parties.
15. NOTICES.
Any notices required or permitted to be given under this Agreement must
be in writing, by certified mail, return receipt requested to the parties, at
the addresses given herein.
16. WAIVER AND BREACH.
The waiver or breach of any term or condition of this Agreement will not
be deemed to constitute the waiver of any other breach of the same or any
other term or condition.
17. GOVERNING LAW AND JURY TRIAL WAIVER.
This Agreement will be governed by and construed in accordance with the
laws of the State of New York applicable to contracts made and to be
performed entirely within that
- 24 -
State. In any litigation based on any claim hereunder, the parties hereto
agree to waive trial by jury.
PROGENICS PHARMACEUTICALS, INC.
By: /s/ XXXXXX X. XXXXXXXX
-------------------------------
Vice President
/s/ XXXX X. XXXXXX
-------------------------------
XXXX X. XXXXXX
- 25 -
