EXHIBIT 10.2.2
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and entered into
as of the 29th day of August, 2006, by and between BioVex, Inc., a Delaware
corporation with its principal place of business at 00 Xxxxxxxx Xxx, Xxxxxx, XX
00000 (the "Company"), and Xxxxxx Xxxxxx-Xxxxxx, residing at 0 Xxxxxx Xxxx,
Xxxxxx, XX 00000 (the "Executive").
WITNESSETH
WHEREAS, the Company and Biovex Limited, a company registered in
England and Wales with a registered office at 00 Xxxxxx Xxxx, Xxxxxxxx, Xxxxxx
("Xxxxxx Ltd."), both are wholly-owned subsidiaries of Biovex Group, Inc. (the
"Parent Company");
WHEREAS, the Executive currently is serving as the President and Chief
Financial Officer of the Parent Company and the President of the Company;
WHEREAS, the Executive currently is a party to a service agreement
dated July 10, 2000 (the "Service Agreement") entered into with Biovex Ltd.,
pursuant to which the Executive currently divides his time and efforts working
and traveling between the United Kingdom and the United States; and
WHEREAS, the Parties desire to enter into an employment agreement and
to terminate the Service Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which is mutually acknowledged, the Company and the Executive
(individually a "Party" and together the "Parties"), intending to be legally
bound, agree as follows:
1. Certain Definitions. For purposes of this Agreement,
1.1 "Board" shall mean the Board of Directors of the Parent Company
from time to time or any person or any committee of the Board duly appointed by
it;
1.2 "Cause" shall mean:
(a) a good faith finding by the Company that the Executive has:
(i) engaged in gross misconduct, willful and serious neglect
of duty, material dishonesty, gross incompetence or gross negligence;
(ii) infringed any rules or regulations imposed by any
regulatory or other external authority or professional body applicable to his
employment or which regulate the performance of his duties, the Company's
business or the listing of the shares or securities of the Company or any Group
Company on a recognized investment exchange or failed to possess any
qualification or meet any condition or requirement laid down by any such
applicable regulatory authority or professional body or by any legislation or
regulations;
(iii) acted in a way which in the reasonable view of the
Board brought the Executive, the Company or any Group Company into material
disrepute, whether or not such act was directly related to the affairs of the
Company or any Group Company;
(iv) violated any rules of the Company relating to dealings
with the shares of the Company or any Group Company and/or entered into any
transaction which contravenes the insider dealing provisions of the Securities
Exchange Act of 1934, as amended or any other applicable statute, rule, or
regulation relating to dealings of shares;
(b) the conviction of the Executive of, or the entry of a
pleading of guilty or nolo contendere by the Executive to, any crime involving
moral turpitude or any felony;
(c) any material breach of this Agreement by the Executive; or
(d) the Executive becomes disqualified by any court,
administrative agency, regulatory authority or professional body from acting as
a director of the Company and/or any Group Company, or resigns from any office
he holds as a director of the Company or any Group Company (other than upon the
written request or written consent of the Company); or
(e) the Company has entered into a definitive written agreement
providing for the merger, consolidation, reorganization, recapitalization, or
statutory share exchange involving the Company or a sale or other disposition of
all or substantially all of the assets of the Company in one or a series of
transactions which has resulted or will result in the termination of this
Agreement, and the Executive has rejected alternative employment by the Company
or its successor on terms and conditions which are substantially similar in all
material respects to the terms and conditions of this Agreement (as determined
by the Board in its sole discretion).
1.3 "Chairman" shall mean the Chairman of the Board of the Parent
Company or its designee, as may be appointed from time to time.
1.4 "Good Reason" shall mean a good faith determination by the
Executive that there has occurred a material breach by the Company of any
provision of the Agreement, including, without limitation, a material diminution
in the Executive's position, authority or responsibilities or a material
reduction in his salary or benefits, which breach continues for more than thirty
(30) business days following receipt by the Company of written notice from the
Executive setting forth in reasonable detail the nature of such breach.
1.5 "Group Company" shall mean each and every all company and/or
corporation in any jurisdiction: (a) which from time to time is a parent company
or subsidiary of the Company; (b) which from time to time is a parent company or
subsidiary of Biovex Ltd.; or (c) over which the Company or Biovex Ltd. has
voting control.
1.6 "Prospective Customer" shall mean any person with whom the Company
or any Group Company is in negotiations in relation to the sale or supply of
goods and/or services by the Company or any Group Company or to whom the Company
or any Group Company has submitted an offer relating to such sale or supply
arrangement.
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2. Term of Employment. The Company hereby agrees to employ the Executive on
an at will basis, and the Executive hereby accepts such employment with the
Company, upon the terms set forth in this Agreement, commencing on the date set
forth above (the "Start Date").
3. Title; Capacity; Duties. The Executive shall serve as the President of
the Parent Company or in such other reasonably comparable position as the Board
may determine from time to time.
3.1 Location; Travel. The Executive's employment shall be based at the
Company's headquarters in Woburn, MA, or such place(s) in the Commonwealth of
Massachusetts or the United Kingdom as the Board shall determine. The Executive
may be required from time to time to travel to and work from such places within
or outside the United States for such periods as the Company may reasonably
require for the proper and efficient performance of the Executive's duties;
provided, however, that the Company shall provide the Executive with at least
three (3) months' advance notice prior to a required relocation.
3.2 Duties. The Executive agrees to:
(a) act as a director of the Company and accept any other
offices, appointments, or directorships in the Company or any Group Company and
perform such other duties and exercise such other powers in relation to the
business of the Parent Company, the Company, or any Group Company as may from
time to time be reasonably assigned to him by the Board;
(b) devote his entire business time, attention, energies and
abilities to the business and interests of the Company and/or any Group Company;
(c) faithfully and diligently perform his duties to the best of
his ability, act in the best interests of the Company and any Group Company at
all times and use his best efforts to promote and develop the best interests of
the Company and any Group Company;
(d) obey the reasonable and lawful directions of the Board at all
times and comply with any lawful rules, regulations, instructions, personnel
practices and policies and any changes therein that may be adopted by the
Company from time to time;
(e) keep the Board (or the board of directors of any other Group
Company for whom the Executive is carrying out any duties) fully informed in a
timely manner of any duties or activities the Executive undertakes on behalf of
the Company or any Group Company in such form as the Board may reasonably
require;
(f) not obtain or accept, directly or indirectly, any discount,
rebate, gift, commission, fees or other benefit from any third party in respect
of any sale or purchase of goods or services by the Company or any Group
Company;
(g) carry out his duties and exercise his powers jointly with any
other person appointed by the Board in its discretion to act jointly with the
Executive; and
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(h) comply with all applicable rules of law and all policies,
codes, rules or regulations of the Company or any Group Company, including, but
not limited to, all policies, codes, rules, or regulations relating to dealings
in shares, debentures or other securities of the Company and any Group Company
or relating to any confidential information affecting the securities of the
Company, any Group Company or any other company or corporation.
3.3 Hours of Work. The Executive agrees to work such hours as may be
necessary for the proper and efficient performance of his duties under this
Agreement and in any event not less that the normal working hours of the
Company, as may be established from time to time.
4. Compensation and Benefits.
4.1 Salary. The Company shall pay the Executive, in accordance with
the Company's regular payroll practices, an annualized base salary of $252,865
for the one-year period commencing on the Start Date. This salary is paid with
respect to all of the Executive's activities undertaken or performed on behalf
of the Company and any Group Company. Such salary shall be subject to review and
adjustment from time to time, as determined by the Board.
4.2 Bonus. Subject to the terms, conditions and rules of any
applicable bonus plan in force from time to time and the successful achievement
by the Executive and by the Company of any targets, budgets or objectives
determined by the Compensation Committee of the Company for each calendar year,
the Executive shall be eligible for a discretionary bonus of up to 30% of his
base annual salary for that year. The decision whether each target or objective
has been successfully completed, whether to pay any bonus and, if so, the amount
of any bonus to be paid, are matters within the sole discretion of the Company's
Compensation Committee. The Executive agrees that the terms, conditions and
rules applicable to the bonus plan may be varied from time to time in the
absolute discretion of the Company and acknowledges that the targets and
objectives are likely to vary from year to year. The fact that a bonus is paid
in any one year shall be no guarantee that bonuses will be paid in any
subsequent year. As the bonus is intended to incentivize the Executive to remain
in the employment of the Company, the payment of any bonus is conditional on the
Executive being employed by the Company on the day the bonus is paid.
4.3 Fringe Benefits. The Executive shall be entitled to participate in
all benefit programs that the Company establishes and makes available to its
U.S. employees, to the extent that the Executive is eligible under (and subject
to the provisions of) the plan documents governing those programs. The terms and
conditions relating to the benefits provided under each benefit plan are as set
out in the relevant plans that the Company has in force at the applicable time,
which may change from time to time during the term of this Agreement. Any
descriptions of benefits provided by the Company (other than as stated in the
applicable plans) are provided for guidance purposes only and do not constitute
binding terms and conditions of employment. The Executive acknowledges that each
benefit plan includes detailed terms and conditions relating to his entitlement
to benefits under any given circumstances, the level of coverage and the
cessation of the benefits. The Executive is advised to obtain and review a copy
of the terms and conditions of each plan, which are available from the Company's
Human Resources Department.
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(a) 401(k) Plan. The Executive will be eligible to participate in
a defined contribution plan now existing or hereafter established in accordance
with Section 401(k) of the Internal Revenue Code for similarly situated
employees employed in the United States (the "401(k) Plan"), to the extent that
the Executive is or will be eligible under the provisions thereof. Pursuant to
the 401(k) Plan, each pay period the Executive may contribute to the 401(k) Plan
from his salary on a pre-tax basis, up to the maximum annual amount permitted by
applicable law. Each year the Company will contribute a total of three percent
(3%) of the Executive's base salary to the Executive's account.
(b) Paid Time Off. The Company's paid time off schedule runs on a
calendar year basis from April 1st to March 31st.
(i) Holidays. The Executive will be eligible for holiday pay
for the holidays recognized by the Company in Massachusetts.
(ii) Vacation. The Executive shall be eligible for up to 25
days paid vacation per calendar year, accruing at a rate of 2.083 days per month
that the Executive is employed during such year. For the calendar year(s) during
which the Executive's employment commences or terminates, the Executive's
entitlement to vacation pay will be calculated on a pro rata basis. All vacation
time off must be authorized in advance by the Chief Executive Officer of the
Parent Company and must be taken at times that are convenient to the Company,
having due regard to the needs of the business of the Company or any relevant
Group Company. The Executive may not, without the prior permission of the Board,
carry forward any unused, accrued vacation days to the next calendar year.
Vacation days are not transferable into cash while the Executive remains
employed with the Company). On the termination of employment with the Company,
the Company will pay the Executive any accrued, unused vacation days.
4.4 Reimbursement of Expenses. The Company shall reimburse the
Executive for all reasonable travel, entertainment and other expenses incurred
or paid by the Executive in connection with, or related to, the performance of
his duties, responsibilities or services under this Agreement, provided the
Executive:
(a) Complies with any expense policy of the Company in force from
time to time;
(b) Produces to the Company such receipts or other evidence of
actual payment of the expenses concerned as the Company reasonably requires; and
(c) Submits all expense claims for any such expenses within three
(3) months of incurring the expenditure.
4.5 Withholdings. All salary, bonus and other compensation payable to
the Executive shall be subject to applicable taxes and withholdings. Without
prejudice to any other rights available to the Company, the Executive consents
to the Company deducting from any sums due to him, such sums representing the
amount of any outstanding loans or advances made to the Executive by the
Company, any overpayment of salary or expenses, and any payment made to the
Executive by mistake or through misrepresentation. The Executive agrees to
timely
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execute and convey all documentation necessary to authorize the Company to
deduct any sums due pursuant to this Section 4.5.
5. Employment Termination. This Agreement and the employment of the
Executive shall terminate upon the occurrence of any of the following:
5.1 At the election of either Party, immediately upon written notice
to the other.
5.2 At the election of the Executive for Good Reason.
5.3 At the election of the Company for Cause, immediately upon written
notice by the Company to the Executive, which notice shall identify the Cause
upon which termination is based.
5.4 Upon the death or disability of the Executive. As used in this
Agreement, the term "disability" shall mean the inability of the Executive with
reasonable accommodation as may be required by state or federal law, due to a
physical or mental disability, for a period of ninety (90) days, whether or not
consecutive, during any 365-day period to perform the services contemplated
under this Agreement. A determination of disability shall be made by a physician
satisfactory to both the Executive and the Company; provided that if the
Executive and the Company do not agree on a physician, the Executive and the
Company shall each select a physician and these two together shall select a
third physician, and the determination as to disability by at least two of the
three physicians shall be binding on all Parties.
6. Effect of Termination of Employment.
6.1 Termination for Cause or by the Executive without Good Reason. In
the event the Executive's employment is terminated by the Company for Cause
pursuant to Section 5.3 or by the Executive without Good Reason pursuant to
Section 5.1, the Company shall pay to the Executive the compensation and
benefits otherwise payable to him under Section 4 through the last calendar day
of his actual employment by the Company.
6.2 Termination Without Cause or for Good Reason. In the event the
Executive's employment is terminated by the Company without Cause pursuant to
Section 5.1 or by the Executive for Good Reason pursuant to Section 5.2, the
Company shall pay to the Executive a lump sum payment equal to 12-months of the
Executive's base salary, as then in effect (the "Severance Pay"), subject to the
Executive's execution and non-revocation of a severance agreement and release
drafted by the Company. For the avoidance of doubt, the Severance Pay shall not
include any commissions, paid time off, incentives, car allowance, 401(k)
contributions, bonuses, or other benefit provided to the Executive during his
employment.
6.3 Termination for Death or Disability. In the event the Executive's
employment is terminated by death or because of disability pursuant to Section
5.4, the Company shall pay to the estate of the Executive or to the Executive,
as the case may be, the compensation that would otherwise be payable to the
Executive for thirty (30) calendar days after the termination of his employment
because of death or disability.
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6.4 Certain Post-Termination Obligations. The Executive agrees that
upon the termination of his employment with the Company for any reason:
(a) The Executive shall resign or be considered to have resigned
from all offices he then holds in the Company and/or any Group Company;
(b) The Executive will no longer represent himself as being in
any way connected with the business of the Company or any Group Company (except
to the extent agreed by such Company) or carry on, cause or permit to be carried
on any business under or using any name, trademark, trade dress, service xxxx,
style, logo or image which is or has been used by the Company or any Group
Company, or which in the reasonable opinion of the Company, is calculated to
cause confusion with such a name, trademark, trade dress, service xxxx, style,
logo or image or infer a connection with the Company or any Group Company; and
(c) The Executive shall transfer to the Company (or its designee)
any nominee shares or other interests which the Executive then holds on behalf
of or in trust for the Company or any Group Company.
(d) The Executive agrees to sign all papers and take any other
actions as may be necessary to effect his termination of employment from the
Company or any Group Company in accordance with this Section 6.4. The Executive
further agrees that if the Company is unable, after reasonable effort, to secure
the signature of the Executive on any such papers, the Chairman (or its
designee) shall be entitled to execute any such papers as the agent and the
attorney-in-fact of the Executive, and the Executive hereby irrevocably
designates and appoints the Chairman (or its designee) as his agent and
attorney-in-fact to execute any such papers on his behalf and to take any and
all actions as the Company may deem necessary or desirable in order to
effectuate the provisions of this Section 6.4.
7. Non-Competition and Non-Solicitation.
(a) During the Executive's employment for the Company and for a
period of one (1) year after the termination thereof for any reason, the
Executive will not, without the prior written permission of the Board, in the
geographical areas that the Company or any Group Company does business or has
done business at the time of the Executive's separation from employment,
directly or indirectly:
(i) engage in any business or enterprise (whether as owner,
partner, officer, director, executive, consultant, investor, lender or
otherwise, except as the holder of not more than one percent (1%) of the
outstanding stock of a publicly-held company) that is competitive with the
Company's and any Group Company's business, including, but not limited to, any
business or enterprise that develops, manufactures, markets or sells any product
or service that competes with any product or service developed, manufactured,
marketed or sold, or planned to be developed, manufactured, marketed or sold, by
the Company or any Group Company while the Executive was employed by the
Company; or
(ii) either alone or in association with others: (A)
solicit, recruit, induce, attempt to solicit, recruit or induce, or permit any
organization directly or indirectly controlled by the Executive to solicit,
recruit, induce, or attempt to solicit, recruit or
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induce any director, officer, president, or vice president of the Company to
leave the employ of the Company; or (B) solicit, recruit, induce, attempt to
solicit, recruit or induce for employment or hire or engage as an independent
contractor, or permit any organization directly or indirectly controlled by the
Executive to solicit, recruit, induce, attempt to solicit, recruit or induce for
employment or hire or engage as an independent contractor, any other employee
who was employed by the Company at any time during the Executive's employment
for the Company in a managerial, technical, engineering, sales, marketing,
research and/or development capacity; provided, however, that this subsection
7(a)(ii)(B) shall not apply to any individual whose employment or engagement
with the Company has been terminated for a period of six (6) months or longer;
and/or
(iii) either alone or in association with others, solicit,
divert, take away, or adversely affect the relationship that the Company has
with, or attempt to solicit, divert, take away, or adversely affect the
relationship that the Company has with, or permit any organization directly or
indirectly controlled by the Executive to solicit, divert, take away, or
adversely affect the relationship that the Company has with, or attempt to
solicit, divert, take away, or adversely affect the relationship that the
Company has with, the business or patronage of any of the clients, customers,
accounts or suppliers, or prospective clients, customers, accounts or suppliers,
of the Company, which were contacted, solicited, served, or retained by the
Company at any time during the Employment Period.
(b) The provisions of this Section 7 shall apply to the Company,
Biovex Ltd., and any current or future Group Company. The Company, Biovex Ltd.,
and any Group Company will be entitled to seek the protection of and enforce
each of the restrictions in this Section 7 directly against the Executive.
(c) The Executive agrees that if the Executive violates the
provisions of Section 7, the Executive shall continue to be bound by the
restrictions set forth in this Section 7 until a period of one (1) year has
expired without any violation of such provisions.
(d) If any restriction set forth in this Section 7 is found by
any court of competent jurisdiction to be unenforceable because it extends for
too long a period of time or over too great a range of activities or in too
broad a geographic area, it shall be interpreted to extend only over the maximum
period of time, range of activities or geographic area as to which it may be
enforceable.
8. Proprietary Information and Developments.
8.1 Proprietary Information.
(a) The Executive agrees that all information, whether or not in
writing, of a private, secret or confidential nature concerning the Company's or
any Group Company's business, business relationships or financial affairs
(collectively, "Proprietary Information") is and shall be the exclusive property
of the Company. The Executive will not disclose any Proprietary Information to
any person or entity other than employees of the Company or use the same for any
purposes (other than in the performance of his duties as an employee of the
Company) without prior written approval from the Board, either during or after
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his employment with the Company, unless and until such Proprietary Information
has become public knowledge without fault by the Executive. By way of
illustration, but not limitation, Proprietary Information includes:
(i) corporate, marketing, product development and business
development strategies and plans;
(ii) budgets, management accounts, bank account details and
other confidential financial data;
(iii) business, sales and marketing methods;
(iv) details, designs, know-how, technical data, techniques,
processes and specifications of or relating to any products and services being
sold, provided, manufactured, distributed, researched or developed, including
all: research and development reports and data; genetic data; databases;
chemical formulae; information relating to pre-clinical or clinical trials;
medical records; proprietary vaccines; vaccines; pharmaccines; anti-viral
therapies; disease inhibitors; proprietary bioinformatics; proprietary elements
or compounds (whether organic or inorganic); methods of manufacture; nucleotide
or nucleotide sequence including DNA and RNA sequences; gene; vector or
construct including plasmids, phages or viruses; host organism including
bacteria, fungi, algae and protozoa; hybridomas; eukaryotic or prokaryotic cell
line or expression system or any development strain or product of that cell line
or expression system; protein including any peptide or amino acid sequence,
enzyme, antibody or protein conferring targeting properties and any fragment of
a protein or a peptide enzyme or antibody; drug or pro-drug; assay or reagent;
any other genetic or biologic material or micro-organism; multi-cellular plants;
data for the derivation of molecular structures including NMR spectra, X Ray
diffraction patterns, and other primary experimental information, assignments
and other calculations, required for determination of the structure, and
co-ordinates of the derived molecular structure; and any intellectual property
rights;
(v) computer technology; computer programs; software
applications and systems; information relating to proprietary hardware or
software (including updates); source and object code to proprietary software;
confidential algorithms developed or used for such proprietary software; and
software and technical information necessary for the development, maintenance or
operation of any websites and the source and object code of each website;
(vi) details of the salaries, remuneration, fees, bonuses,
commissions and other employment terms applicable to employees, officers and
consultants;
(vii) the names, addresses and contact details of any
customers, any Prospective Customers, suppliers, advisers, distributors, agents
and other business partners, customer lists in whatever medium this information
is stored and the requirements of those customers or the potential requirements
of Prospective Customers for any products or services;
(viii) the terms and conditions of business with customers,
suppliers, advisers, distributors, agents and other business partners, including
any pricing policy,
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discount policy or credit policy adopted and the terms of any partnership, joint
venture or other form of commercial cooperation or agreement with any third
party;
(ix) claims or litigation threatened against the Company;
and
(x) any other information which is the subject of an
obligation of confidence owed to a third party, in particular the content of
discussions or communications with any Prospective Customers or prospective
business partners.
(b) The Executive agrees that all files, documents, letters,
memoranda, reports, records, data, sketches, drawings, methods, laboratory
notebooks, program listings, computer equipment or devices, computer programs or
other written, photographic, or other tangible material containing Proprietary
Information, whether created by the Executive or others, which shall come into
his custody or possession, as well as any plans, keys, mobile telephone,
security passes, credit cards, customer lists, price lists, equipment,
documents, records, papers, computer hardware, software or equipment, and all
property of whatever nature in his possession or control which belongs to the
Company or any Group Company (collectively, "Company Property") shall be and are
the exclusive property of the Company and are to be used by the Executive only
in the performance of his duties for the Company.
(c) Return of Company Property.
(i) All materials or copies of Company Property in the
custody or possession of the Executive shall be delivered to the Company upon
the earlier of (i) a request by the Company or (ii) termination of his
employment. After such delivery (which shall be accompanied by a written
statement confirming that the Executive has complied with the obligations set
forth in this Section 8.1(c)(i)), the Executive shall not retain any such
materials or copies thereof or any such tangible property.
(ii) If, on the termination of the Executive's employment,
the Executive has any Proprietary Information and/or Company Property relating
to the Company or any Group Company or work the Executive has carried out for
the Company or any Group Company which is stored on a device (including, but not
limited to, any personal computer, laptop computer, web-server, personal digital
assistant, mobile telephone, memory, disk or any other storage medium) that the
Executive is under no obligation to return pursuant to the preceding Section,
the Executive agrees to disclose this fact to the Company immediately upon the
termination of his employment and agrees to provide the Company with immediate
access to the relevant device(s) so that the Company may download the
information and/or supervise its deletion from the device concerned. The
Executive will, at the Company's request, furnish the Company with a written
statement confirming that he has complied with his duty of disclosure to the
Company under this Section 8.1(c)(ii).
(d) The Executive agrees that his obligation not to disclose or
to use information and materials of the types set forth in subsections (a) and
(b) above, and his obligation to return materials and tangible property set
forth in subsection (c) above, also extend to such types of information,
materials and tangible property of customers of the Company or
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suppliers to the Company or other third parties who may have disclosed or
entrusted the same to the Company or to the Executive.
8.2 Developments.
(a) The Executive will make full and prompt disclosure to the
Company of all inventions, creations, improvements, discoveries, trade secrets,
secret processes, technology, know-how, copyrightable materials, methods,
developments, software, and works of authorship or other creative works, whether
patentable or not, which are created, made, conceived or reduced to practice by
him or under his direction or jointly with others during his employment by the
Company, whether or not during normal working hours or on the premises of the
Company (all of which are collectively referred to in this Agreement as
"Developments").
(b) The Executive agrees to assign and does hereby assign to the
Company (or any person or entity designated by the Company) all his right, title
and interest in and to all Developments and all related patents, patent
applications, copyrights and copyright applications. However, this subsection
(b) shall not apply to Developments that do not relate to any business or
research and development conducted or planned to be conducted by the Company at
the time such Development is created, made, conceived or reduced to practice and
that are made and conceived by the Executive not during normal working hours,
not on the Company's premises and not using the Company's tools, devices,
equipment or Proprietary Information. The Executive understands that, to the
extent this Agreement shall be construed in accordance with the laws of any
state that precludes a requirement in an employment agreement to assign certain
classes of inventions made by an employee, this subsection (b) shall be
interpreted not to apply to any invention that a court rules and/or the Company
agrees falls within such classes. The Executive also hereby waives all claims to
moral rights in any Developments.
(c) The Executive agrees to cooperate fully with the Company and
to take such further actions as may be necessary or desirable, both during and
after his employment with the Company, with respect to the procurement,
maintenance and enforcement of copyrights, patents and other intellectual
property rights (both in the United States and foreign countries) relating to
Developments. The Executive shall sign all papers, including, without
limitation, copyright applications, patent applications, declarations, oaths,
formal assignments, assignments of priority rights and powers of attorney, that
the Company may deem necessary or desirable in order to protect its rights and
interests in any Development. The Executive further agrees that if the Company
is unable, after reasonable effort, to secure the signature of the Executive on
any such papers, the Chairman (or its designee) shall be entitled to execute any
such papers as the agent and the attorney-in-fact of the Executive, and the
Executive hereby irrevocably designates and appoints the Chairman (or its
designee) as his agent and attorney-in-fact to execute any such papers on his
behalf and to take any and all actions as the Company may deem necessary or
desirable in order to protect its rights and interests in any Development under
the conditions described in this sentence.
8.3 United States Government Obligations. The Executive acknowledges
that the Company from time to time may have agreements with other parties or
with the United States Government, or agencies thereof, which impose obligations
or restrictions on the Company
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regarding inventions made during the course of work under such agreements or
regarding the confidential nature of such work. The Executive agrees to be bound
by all such obligations and restrictions that are made known to the Executive
and to take all action necessary to discharge the obligations of the Company
under such agreements.
8.4 Equitable Remedies. The restrictions contained in Sections 7 and 8
are necessary for the protection of the business and goodwill of the Company and
are considered by the Executive to be reasonable for such purpose. The Executive
agrees that any breach of Sections 7 and/or 8 will cause the Company irreparable
harm. Therefore, in the event of any such breach or threatened breach, the
Executive agrees that the Company, in addition to such other remedies that may
be available, shall have the right to obtain an injunction from a court
restraining such a breach or threatened breach and the right to specific
performance of the provisions of Sections 7 and 8 without posting a bond and the
Executive hereby waives the adequacy of a remedy at law as a defense to such
relief.
8.5 Other Agreements. The Executive hereby represents that he is not
bound by the terms of any agreement with any previous employer or other party to
refrain from using or disclosing any trade secret or confidential or proprietary
information in the course of his employment with the Company, to refrain from
competing, directly or indirectly, with the business of such previous employer
or any other party or to refrain from soliciting employees, customers or
suppliers of such previous employer or other party. The Executive further
represents that his performance of all the terms of this Agreement and the
performance of his duties as an employee of the Company does not and will not
breach any agreement to keep in confidence proprietary information, knowledge or
data acquired by him in confidence or in trust prior to his employment with the
Company and that the Executive will not disclose to the Company or induce the
Company to use any confidential or proprietary information, knowledge or
material belonging to any previous employer or others. Any agreement to which
the Executive is a party relating to nondisclosure, non-competition or
non-solicitation of employees, customers or suppliers is listed on Schedule A
attached hereto.
9. Survival. The provisions of Sections 7 and 8 shall survive the
termination of this Agreement for any reason. The Executive agrees that any
change or changes in the Executive's employment duties, responsibilities, or
compensation after the signing of this Agreement shall not affect the validity
or scope of this Agreement.
10. Notices Regarding Future Employments. The Executive agrees that if he
receives an offer of employment, consultancy, directorship or other office or
partnership during the effectiveness of the Executive's continuing obligations
set forth in Sections 7 and 8 above, he will prior to acceptance of an offer:
10.1 Notify the party making the offer of Section 7, and the
restrictions on the Executive's use and disclosure of confidential information
and the provisions dealing with developments pursuant to Section 8; and
10.2 Notify the Company of the offer, including a description of the
nature of the duties and responsibilities involved.
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11. Security; Privacy.
11.1 All communications, whether by telephone, email, fax, or any
other means, which are transmitted, undertaken or received using the Company's
information technology ("IT") or communications systems or Company property are
treated by the Company as work related and the Company's IT systems and network
are provided for the Executive's use in undertaking his duties. The Executive
agrees that the Company may intercept, record and monitor all such
communications made by the Executive and his use of the Company's IT systems and
network without further notice. Accordingly, the Executive should have no
expectation of privacy with regard to any such communications. Private matters
should be conducted by the Executive outside of his working hours, away from the
Company's premises and without use of the Company's communications and IT
hardware, software, systems and/or networks.
11.2 The Executive recognizes that the Company's interception,
recording and monitoring of communications is intended to protect the Company's
business interests, including, without limitation, for the purposes of quality
control, security of communication and IT systems, protection of the Company's
confidential information and other legitimate business interests, record-keeping
and evidential requirements, detection and prevention of criminal activity or
misconduct and to assist the Company to comply with relevant legal requirements
11.3 The Executive agrees that intercepted communications may be used
as evidence in disciplinary or legal proceedings, including in any such action
against the Executive.
12. Notices. Any notice the Executive is required to give under this
Agreement must be hand delivered to the Chairman (or its designee) at the
Company's principal executive office from time to time. Any notice the Company
is required to give the Executive will be hand delivered to the Executive or
sent by registered or certified mail, return receipt requested, postage prepaid
to the Executive's last home address of record. These notices will be deemed to
have been given on the date of receipt if hand delivered and, if posted, on the
day on which the letter would be delivered in the ordinary course of recorded
delivery post. Either Party may change the address to which notices are to be
delivered by giving notice of such change to the other party in the manner set
forth in this Section 12.
13. Pronouns. Whenever the context may require, any pronouns used in this
Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular forms of nouns and pronouns shall include the plural, and vice
versa.
14. Entire Agreement. This Agreement constitutes the entire agreement
between the parties and supersedes all prior agreements and understandings,
whether written or oral, relating to the subject matter of this Agreement
including, without limitation, the Service Agreement, all of which shall be
deemed to have been terminated by mutual consent as of the date this Agreement
comes into force and without giving rise to claims against the Company or any
Group Company. The Executive hereby acknowledges and warrants that this
Agreement states the entire agreement between the parties in relation to his
terms of employment, that there are no agreements or arrangements, whether
written or oral or implied, between the Company or any Group Company and the
Executive relating to his employment by the Company other than those
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expressly set out in this Agreement, and that he is not entering into this
Agreement in reliance on any representation not expressly set out in this
Agreement. Nothing in this paragraph, however, shall modify, cancel or supersede
the Executive's obligations referenced in Sections 7 and 8 herein, or any other
provisions of this Agreement which are expressed to operate or have effect or
are capable of operation or effect after the termination of the Executive's
employment.
15. Amendment. This Agreement may be amended or modified only by a written
instrument executed by both the Company and the Executive.
16. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts (without reference
to the conflict of laws provisions thereof). Any action, suit or other legal
proceeding arising under or relating to any provision of this Agreement shall be
commenced only in a court of the Commonwealth of Massachusetts (or, if
appropriate, a federal court located within the Commonwealth of Massachusetts),
and the Company and the Executive each consents to the jurisdiction of such a
court. The Company and the Executive each hereby irrevocably waive any right to
a trial by jury in any action, suit or other legal proceeding arising under or
relating to any provision of this Agreement. For the avoidance of doubt, the
Parties agree that the laws of the United Kingdom and/or the European Union
shall not apply to any matter relating to this Agreement, including, without
limitation, the Executive's employment by the Company.
17. Successors and Assigns; No Third Party Beneficiary. This Agreement
shall be binding upon and inure to the benefit of both parties and their
respective successors and assigns, including any corporation with which or into
which the Company may be merged or which may succeed to its assets or business;
provided, however, that the obligations of the Executive are personal and shall
not be assigned by him; and provided, further, that nothing in this contract
shall confer or purport to confer on a third party (other than any Group
Company) any benefit or any right to enforce a term of this contract.
18. Acknowledgment. The Executive states and represents that he has had an
opportunity to fully discuss and review the terms of this Agreement with an
attorney. The Executive further states and represents that he has carefully read
this Agreement, understands the contents herein, freely and voluntarily assents
to all of the terms and conditions hereof, and signs his name of his own free
act.
19. Miscellaneous.
19.1 No delay or omission by the Company in exercising any right under
this Agreement shall operate as a waiver of that or any other right. A waiver or
consent given by the Company on any one occasion shall be effective only in that
instance and shall not be construed as a bar to or waiver of any right on any
other occasion.
19.2 The captions of the sections of this Agreement are for
convenience of reference only and in no way define, limit or affect the scope or
substance of any section of this Agreement.
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19.3 In case any provision of this Agreement shall be invalid, illegal
or otherwise unenforceable, the validity, legality and enforceability of the
remaining provisions shall in no way be affected or impaired thereby.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year set forth above.
BIOVEX GROUP, INC.
By: /s/ X.X. Xxxxxx
------------------------------------
Title: C.E.O.
EXECUTIVE
/s/ X. Xxxxxx-Xxxxxx
----------------------------------------
Xxxxxx Xxxxxx-Xxxxxx
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SCHEDULE A
