EXHIBIT 10.33
SEPARATION AGREEMENT, GENERAL RELEASE OF ALL CLAIMS AND
CONSULTING AGREEMENT
This Separation Agreement, General Release of All Claims and
Consulting Agreement is made and entered into this 17th day of October, 2001, by
and between INFORMAX, INC. (hereinafter "InforMax") and XXXXXXXXX XXXXXXXXX,
PH.D. (hereinafter "Xx. Xxxxxxxxx").
WHEREAS Xx. Xxxxxxxxx has an employment relationship with
InforMax as its Chief Executive Officer,
WHEREAS Xx. Xxxxxxxxx and InforMax have agreed that Xx.
Xxxxxxxxx will terminate his employment relationship and resign his position
with InforMax as its Chief Executive Officer, but will continue to provide
services to InforMax as a part-time consultant as stated in this Separation
Agreement, General Release of All Claims and Consulting Agreement,
WHEREAS InforMax and Xx. Xxxxxxxxx agree that Xx. Xxxxxxxxx is
currently a member of the Board of Directors ("Board") and is the Chairman of
the Board, and that this Agreement shall not in any way affect those positions,
and
WHEREAS InforMax and Xx. Xxxxxxxxx have agreed to conclude all
potential disputes between them, to provide for an orderly termination of the
employment relationship, and to provide terms and conditions for his role as a
consultant to InforMax on the basis of the terms and conditions set forth in
this Separation Agreement, General Release of All Claims and Consulting
Agreement.
NOW, THEREFORE, AND IN CONSIDERATION of the mutual promises of
the parties to this Separation Agreement, General Release of All Claims and
Consulting Agreement (hereinafter the "Agreement"), the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
1. Termination. Xx. Xxxxxxxxx shall resign his employment
with InforMax on the date that InforMax's new Chief Executive Officer begins
employment ("Effective Date of Termination"). Unless the parties agree
otherwise, Xx. Xxxxxxxxx'x resignation shall be announced on October ____, 2001.
If InforMax chooses to make an internal announcement to its employees, it shall
be substantially the same as Attachment A. The announcement is attached as
Attachment A to this Agreement. Between the date of this Agreement and the
Effective Date of Termination, Xx. Xxxxxxxxx shall follow the instructions of
the Board's Executive Committee or its designee concerning the services he will
perform for InforMax and the place and manner of his performance. Xx.
Xxxxxxxxx'x base salary as of the date of this Agreement shall continue in full
through the Effective Date of Termination. Xx. Xxxxxxxxx will be eligible for a
discretionary bonus for his
performance in 2001, and such bonus, if any, will be granted solely at the
discretion of the Board of Directors (the "Board") in accordance with InforMax's
standard bonus policies and procedures. He will not be eligible for any form of
bonus in 2002 or thereafter. Xx. Xxxxxxxxx'x benefits shall continue in full
until the Effective Date of Termination, and thereafter shall terminate in
accordance with the terms of the respective benefits plans or individual
policies and InforMax's standard policies and procedures, except that Xx.
Xxxxxxxxx may elect to continue the health insurance coverage that he had
maintained as an employee pursuant to the Consolidated Omnibus Budget
Reconciliation Act as amended ("COBRA"). InforMax shall pay for Xx. Xxxxxxxxx'x
health insurance coverage in the event he elects to continue such coverage
pursuant to COBRA. InforMax shall reimburse Xx. Xxxxxxxxx for appropriate and
reasonable expense vouchers and receipts incurred on or before his Effective
Date of Termination, if any, in accordance with InforMax's applicable policy and
procedure as it has been applied to Xx. Xxxxxxxxx. Upon his Effective Date of
Termination, Xx. Xxxxxxxxx shall not be entitled to the receipt of any payments
or benefits from InforMax other than those expressly provided for in this
Agreement.
2. Mutual Release.
(a) Xx. Xxxxxxxxx, his attorneys, heirs, executors,
administrators, successors, and assigns do fully release and discharge InforMax,
its parent, subsidiary and affiliate corporations, and related companies, as
well as all predecessors, successors, assigns, directors, officers, partners,
agents, employees, former employees, executors, attorneys, and administrators
(hereinafter "InforMax, et al."), from all grievances, suits, causes of action,
and/or claims of any nature whatsoever, whether known, unknown, or unforeseen,
occurring before the date of this Agreement, which he has or may have against
InforMax, et al., for any reason whatsoever, whether in law or in equity, under
Federal, state or other law, whether the same be upon statutory, tort, contract
or other basis, including, but not limited to, all charges, complaints, and
claims arising out of any event, transaction, or matter that occurred before the
date of this Agreement, and specifically including any and all claims arising
out of the Shareholder's Agreement dated September 1, 1990, the First Amendment
to the Shareholders' Agreement dated August 17, 1999, the Second Amendment to
Shareholders' Agreement dated March 29, 2000 (collectively "Stock Agreements")
and the August 14, 2000 letter from Xx. Xxxxxxxxx to InforMax discussing his
commitments to InforMax in connection with an equity investment in InforMax by
Amersham Pharmacia Biotech, Inc. (the "August 2000 Letter Agreement"). Xx.
Xxxxxxxxx covenants that neither he, nor any person, organization, or other
entity on his behalf, will xxx InforMax, et al., or initiate any type of action,
judicial, administrative, or otherwise against InforMax, et al., with respect to
any event, transaction, or matter that occurred before the date of this
Agreement, or with respect to any continuing effects of such events,
transactions, or matters, including those arising out any Stock Agreements. It
is expressly agreed
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and understood that this release is a GENERAL RELEASE. InforMax agrees and
acknowledges that the foregoing release covers only matters relating to InforMax
and the released parties' connections to InforMax and does not cover any
unrelated business or personal claims.
This release and discharge specifically includes, but is not
limited to, all claims for breach of contract, employment discrimination
(including but not limited to, discrimination on the basis of race, sex,
religion, national origin, age, marital status, disability or any other
protected status), including but not limited to claims under Title VII of the
Civil Rights Act, as amended, the Age Discrimination in Employment Act ("ADEA"),
as amended, the Older Workers Benefit Protection Act, the Americans with
Disabilities Act, or any similar federal, state or local law, including but not
limited to Article 49B of the Maryland Code, claims under the Employee
Retirement Income Security Act of 1974, or claims arising out of any alleged
restrictions on the right of InforMax, et al., to terminate employees, and/or
claims concerning job classification, recruitment, hiring, salary rate, sick
pay, holiday pay, vacation pay, severance pay, wages or benefits due, overtime
pay, stock and stock options, promotions, transfers, employment status, libel,
slander, defamation, promissory estoppel, intentional or negligent
misrepresentation and/or infliction of emotional distress, together with any and
all tort, contract, or other claims which might have been asserted by Xx.
Xxxxxxxxx or on his behalf in any suit, grievance, charge of discrimination, or
claim against InforMax, et al. Xx. Xxxxxxxxx hereby forever releases InforMax,
et al., from any liability or obligation to reinstate or reemploy him in any
capacity and waives any right to be hired or placed in any position or to any
future employment of any nature with InforMax, et al.
Xx. Xxxxxxxxx represents that he has not filed or joined in any
claims, charges or complaints against InforMax, et al., and that he is aware of
no person entitled to make a claim or file a charge of any kind on or for his
behalf relating to or arising out of his employment with InforMax, et al.
(b) InforMax, for itself, any parent, subsidiary and
affiliate corporations, related companies, as well as all of its officers,
directors, predecessors, successors, assigns, trustees, and creditors, does
fully release and discharge Xx. Xxxxxxxxx, his attorneys, heirs, executors,
administrators, successors, assigns, trustees, and creditors (hereinafter "Xx.
Xxxxxxxxx, et al."), from all grievances, suits, causes of action, and/or claims
of any nature whatsoever, whether known, unknown, or unforeseen, which it has or
may have against Xx. Xxxxxxxxx, et al., for any reason whatsoever, whether in
law or in equity, under Federal, state or other law, whether the same be upon
statutory, tort, contract or other basis, including, but not limited to, all
charges, complaints, and claims arising out of any event, transaction, or matter
that occurred before the date of this Agreement, and specifically including any
and all claims arising out of the Stock Agreements referenced above. InforMax
covenants that neither it, nor any person, organization,
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or other entity or representative on its behalf or in its name, will xxx Xx.
Xxxxxxxxx, et al., or initiate any type of action, judicial, administrative, or
otherwise against Xx. Xxxxxxxxx, et al. with respect to any event, transaction,
or matter that occurred before the date of this Agreement, or with respect to
any continuing effects of such events, transactions, or matters, including those
arising out any Stock Agreements. Notwithstanding the above or any other
provisions in this Agreement, this Release does not include any acts which are
the subject of a suit, cause of action or claim of any nature on behalf of (but
not by) InforMax and for which no indemnification exists pursuant to InforMax's
ByLaws.
(c) Nothing in this Agreement waives the parties rights to
xxx to enforce this Agreement, the Confidential Information Agreement, the 1999
Stock Option Agreement, and/or InforMax's right to enforce the June 22, 1999
Confidentiality Agreement.
(d) Neither this Agreement nor any other document or written
or oral statement prepared or made in connection with this Agreement, nor any
discussion of the matters referred to in this Agreement nor any payment under
this Agreement, constitutes, or should be deemed to constitute, (i) an admission
of law or fact or an admission of any liability or wrongdoing by Xx. Xxxxxxxxx
or InforMax with respect to any claims, unasserted claims, or demands relating
to or arising out of or in connection with any matter whatsoever (and Xx.
Xxxxxxxxx and InforMax specifically deny any such liability or wrongdoing) or
(ii) evidence of any matter whatsoever, except for the agreement expressly set
forth in this Agreement.
3. Consulting Period and Services. From the Effective Date
of Termination until three (3) years thereafter unless earlier terminated by Xx.
Xxxxxxxxx ("Consulting Period"), Xx. Xxxxxxxxx shall make himself reasonably
available as a consultant to provide assistance to InforMax as directed by the
new Chief Executive Officer ("CEO") in the areas of sales, product development,
business development and strategic planning or such other areas as InforMax
reasonably deems necessary ("Consulting Services"). InforMax will in good faith
assign Xx. Xxxxxxxxx responsibilities appropriate to his background and
experience. The parties acknowledge and agree that Xx. Xxxxxxxxx'x fulfillment
of his obligations to InforMax hereunder will not require his full business
time, but he shall be available up to forty (40) hours per month to perform
Consulting Services as may be reasonably assigned by the CEO. InforMax agrees
that Xx. Xxxxxxxxx may decline to perform any services not related to the
Company's Business (as defined in the Confidential Information Agreement)
without being deemed in breach of this Agreement and that InforMax will
nonetheless treat him as being "available to perform services" for purposes of
payment under Section 5(a) during any period in which InforMax attempts to
assign him projects that do not relate to the Company's Business. He may accept
other employment with prior notification to the CEO. InforMax agrees that Xx.
Xxxxxxxxx may designate one month per calendar year
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during which he will not be expected or available to provide any services (as a
"vacation") but for which he will be paid. Xx. Xxxxxxxxx shall not engage in any
employment, including consulting, that is injurious to the reputation of
InforMax or any of its subsidiaries and creates a conflict of interest or which
violates Xx. Xxxxxxxxx'x covenants pursuant to this Agreement, the Confidential
Information, Non-Competition, Non-Solicitation and Intellectual Property
Agreement executed by Xx. Xxxxxxxxx on or about June 22, 1999 ("June 1999
Confidentiality Agreement"), and/or the InforMax Agreement on Ideas, Inventions,
Confidential Information and Restrictive Covenants, executed simultaneously with
this Agreement and attached hereto as Attachment C ("Confidential Information
Agreement"). Xx. Xxxxxxxxx shall perform his duties and responsibilities under
this Agreement to the best of his ability and using his best efforts, in a
diligent, timely, professional and workmanlike manner, in accordance with
performance standards generally prevailing in the industry. Upon termination of
this Agreement and/or expiration of the Consulting Period, Xx. Xxxxxxxxx agrees
that the obligations imposed upon him by Sections 2, 5(d), 10, 11, 13, 14 and 19
hereof shall continue in force and shall survive in accordance with their
respective terms, and InforMax agrees that the obligations imposed upon it by
Sections 1, 2, 6, 8, 10 and 25 hereof shall continue in full force and still
survive in accordance with their respective terms.
InforMax agrees that Xx. Xxxxxxxxx is not required to mitigate
amounts payable under this Agreement, whether by seeking other employment or
otherwise, and further agrees that he is not required to pay over to InforMax
any such compensation he receives.
4. Independent Contractor Status. During the Consulting
Period, this Agreement establishes between Xx. Xxxxxxxxx and InforMax an
independent contractor relationship and all the terms and conditions of this
Agreement shall be interpreted in light of that relationship. There is no
intention to create, by way of this Agreement, an employer-employee relationship
between Xx. Xxxxxxxxx and InforMax. Except where expressly agreed upon in
writing by an InforMax officer or director, Xx. Xxxxxxxxx shall not have, nor
shall Xx. Xxxxxxxxx represent to any person or entity that he has, authority to
enter into any agreement or obligation on behalf of or in the name of InforMax
(except that this sentence is not intended to change any authority he has by
virtue of being a member of the Board). Xx. Xxxxxxxxx shall have sole control of
the manner and means of performing the Consulting Services under this Agreement
and shall complete such Services in accordance with his own means and methods of
work. Xx. Xxxxxxxxx has complete discretion to dictate the hours and place where
he performs the Consulting Services. The CEO will provide reasonable notice of
requested periods of performance. The parties intend that Xx. Xxxxxxxxx shall be
a self-employed individual and that he shall be responsible for the payment of
applicable income and self-employment taxes with respect to his compensation
under this Agreement. Xx. Xxxxxxxxx shall not be considered an employee for
federal, state or local tax purposes. Xx. Xxxxxxxxx
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represents that he has and will comply with any federal, state, or local laws
regarding business permits, certificates, and licenses required to perform the
Consulting Services.
5. Fees and Expenses for Consulting Services.
(a) Fees. InforMax agrees to pay Xx. Xxxxxxxxx during the
term of the Consulting Period Consulting Fees of $30,583.33 per month for each
month that Xx. Xxxxxxxxx performs or is available to perform (whether or not
requested to perform) Consulting Services for InforMax. InforMax also agrees to
provide Xx. Xxxxxxxxx continued full use of his Company car through the
remainder of its lease term (but in no event beyond the Consulting Period). The
Company shall be responsible for the lease payments but Xx. Xxxxxxxxx will be
responsible for all other expenses in connection with the car.
(b) Expenses. InforMax shall pay or reimburse Xx. Xxxxxxxxx
for all reasonable, ordinary and necessary travel expenses incurred by him in
connection with his performance of Consulting Services, provided that all such
expenses are approved through a budget to be established in advance by the CEO
or Chief Financial Officer in consultation with Xx. Xxxxxxxxx and are incurred
in accordance with InforMax's travel reimbursement policies prevailing at the
time, as modified in subsection (d) below. Xx. Xxxxxxxxx will invoice InforMax
monthly for expenses incurred during the previous month, and each such invoice
shall be accompanied by receipts and other supporting documentation of expenses
incurred as reasonably requested by InforMax or as otherwise required by
InforMax's prevailing travel reimbursement policy. During the Consulting Period,
Xx. Xxxxxxxxx may retain and use his current InforMax charge card under the
policies that have previously applied to it.
(c) InforMax shall pay fees and reimbursements that are due
under this Agreement within 30 days after receiving an invoice from Xx.
Xxxxxxxxx for such amounts.
(d) InforMax agrees that Xx. Xxxxxxxxx may fly First Class
for any international travel and any travel within the United States that
requires at least five hours of travel time and may fly business class for any
shorter travel within the United States.
(e) Xx. Xxxxxxxxx hereby accepts exclusive liability for the
payment of all federal and state taxes or contributions for unemployment
insurance or old age pensions or annuities or social security payments which are
measured by payments to Xx. Xxxxxxxxx or the employees of Xx. Xxxxxxxxx for the
performance of the Consulting Services. Xx. Xxxxxxxxx acknowledges and agrees
that he shall not be entitled to unemployment insurance benefits. Xx. Xxxxxxxxx
further agrees to
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comply with all valid administrative regulations respecting the assumption of
liability for such taxes and contributions.
(f) Upon receipt of written confirmation from counsel of
legal expenses incurred, InforMax will pay Xx. Xxxxxxxxx'x legal fees in
connection with analysis of his current employment and other InforMax
relationships and the negotiation of this Agreement up to a maximum of $20,000.
InforMax agrees that such payment does not, in any way, cause the counsel to be
treated as counsel to InforMax.
6. Participation in Employee Benefit Plans. After the
Effective Date of Termination, nothing in this Agreement shall entitle Xx.
Xxxxxxxxx to participate in or accrue benefits under any plan of InforMax
relating to stock options, stock purchases, pension, thrift, profit sharing,
employee stock ownership, group life insurance, medical coverage, disability
insurance, education, or other retirement or employee benefits, except that Xx.
Xxxxxxxxx may elect to continue his health insurance coverage pursuant to COBRA
as stated in Section 1 and except that he may be entitled to those benefits, if
any, for which InforMax Board members are eligible pursuant to any such benefit
plans or policies, and except to the extent that his benefits have accrued as of
the Effective Date of Termination.
7. Office and Support Services. During the Consulting
Period, InforMax shall reimburse Xx. Xxxxxxxxx for expenses related to an office
and support staff in connection with the Consulting Services up to a maximum of
$7000 per month. InforMax shall provide the first pro-rated allowance within
five (5) business days of the beginning of the Consulting Period, and afterward
shall provide the allowance on or before the fifth day of each month. InforMax
agrees that during the Consulting Period Xx. Xxxxxxxxx may retain the two
personal computers (with all software and licenses installed on them to use and
upgrade) he was using as of the date of this Agreement, as well as the computer
(with all software and licenses installed on it to use and upgrade) in use by
his secretary as of the date of this Agreement. After the termination or
expiration of the Consulting Period, Xx. Xxxxxxxxx shall be allowed to keep
these three computers with the understanding that the computer hard drives shall
be replaced by InforMax at its expense. In addition, Xx. Xxxxxxxxx may maintain
his current e-mail address and account at InforMax, with InforMax's support and
maintenance, until the later of the date the Consulting Period or his membership
on the Board ends.
8. Stock and Stock Option Agreements. The parties
acknowledge that the Shareholder's Agreement dated September 1, 1990, the First
Amendment to the Shareholders' Agreement dated August 17, 1999, and the Second
Amendment to Shareholders' Agreement dated March 29, 2000 are being terminated
pursuant to a Termination Agreement to be entered by the parties and other
shareholders on or around the date that this Agreement is fully executed.
InforMax waives any rights to enforce these Shareholder's agreements (other than
such Termination
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Agreement) against Xx. Xxxxxxxxx.
The parties acknowledge that the August 2000 Letter Agreement
shall be and is hereby terminated as of the date that this Agreement is fully
executed.
The parties acknowledge and agree that, notwithstanding any
other provisions of this Agreement, other than as stated in the general release
herein in Section 2, this Agreement shall not in any way revise or affect the
InforMax, Inc. Stock Option Agreement between InforMax and Xx. Xxxxxxxxx dated
March 19, 1999. InforMax represents to Xx. Xxxxxxxxx that the March 19, 1999
Stock Option Agreement was validly authorized and granted, that it remains
outstanding and enforceable according to its terms (but applies to voting rather
than non-voting, common stock) and that it is fully vested. InforMax agrees that
it will maintain the effectiveness of the Form S-8 registration with respect to
the 1999 Option until such time as Xx. Xxxxxxxxx has either disposed of all
shares acquired pursuant to exercise of the 1999 Option or waived this condition
in writing so long as InforMax is eligible to continue to use Form S-8 and Form
S-8 is the appropriate form for registration of the shares underlying that
option.
Xx. Xxxxxxxxx agrees to comply with the timing restrictions of
InforMax's xxxxxxx xxxxxxx policy to the same extent as it applies to all
directors of the Company, and InforMax waives the application of such policy to
Xx. Xxxxxxxxx after he ceases to be a member of the Board. InforMax agrees that
Xx. Xxxxxxxxx may create one or more plans of disposition under Rule 10b5-1, if
and when he decides to do so, even though not addressed in the xxxxxxx xxxxxxx
policy, so long as each is consistent with the securities laws.
9. Standstill. Xx. Xxxxxxxxx agrees that while he continues
in employment as CEO and afterward during the Consulting Period, neither he nor
his affiliates, as defined in Rule 12b-2 under the Exchange Act, will (and he
and they will not assist or encourage others to), directly or indirectly, unless
specifically requested to do so in advance or consented thereto by the InforMax
Board of Directors or except in connection with his performance as a member of
the Board of Directors of InforMax:
(a) acquire or agree, offer, seek or propose to acquire, or
cause to be acquired, ownership (including, but not limited to, beneficial
ownership as defined in Rule 13d-3 under the Exchange Act) of any equity
securities issued by InforMax, or any rights or options to acquire such
ownership (including from a third party); or
(b) make, or in any way participate in, any "solicitation"
of "proxies" (as such terms are defined under Regulation 14A of the Exchange
Act) to vote or seek to advise or influence in any matter whatsoever any person
or entity with respect to the voting of any securities of InforMax; or
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(c) form, join in or in any way participate in a "group"
(within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any
voting securities of InforMax; or
(d) arrange, or in any way participate in, any financing for
the purchase of any voting securities or securities convertible or exchangeable
into or exercisable for any voting securities of InforMax; or
(e) otherwise act, whether alone or in concert with others,
to seek to propose to InforMax or any of its stockholders any merger, business
combination, restructuring, recapitalization or similar transaction to or with
InforMax or otherwise seek or propose to influence or control InforMax's
management or policies; or
(f) enter into any discussions, negotiations, arrangements
or understandings with or advise, assist or encourage any third party with
respect to any of the foregoing.
Notwithstanding the foregoing, Xx. Xxxxxxxxx shall be permitted
to exercise any options or warrants currently held by him or which may
subsequently be granted by the Board of Directors of InforMax and, at any time
as the number of outstanding voting securities of InforMax shall be greater than
the number outstanding on the date of this Agreement, to acquire voting
securities of InforMax or instruments convertible or exchangeable therefor, in
an amount that would cause Xx. Xxxxxxxxx'x beneficial ownership of voting
securities of InforMax to equal at least the percentage of InforMax voting
securities beneficially owned by Xx. Xxxxxxxxx immediately following the date of
this Agreement (treating the shares covered by the 1999 Option as beneficially
owned as of such date).
10. Xx. Xxxxxxxxx'x Continuing Obligations to InforMax.
Notwithstanding any provision in this Agreement, but subject to Section 17
hereof, Xx. Xxxxxxxxx continues to owe InforMax those obligations set forth in
the June 1999 Confidentiality Agreement, and the Confidential Information
Agreement executed simultaneously with this Agreement and attached hereto as
Attachment C. These obligations continue beyond the termination of Xx.
Xxxxxxxxx'x employment as stated in each of the applicable agreements, and at
least in the case of the Confidential Information Agreement, the obligations
continue beyond the expiration or termination of the Consulting Period, and Xx.
Xxxxxxxxx shall remain bound by them.
11. Agreement on Ideas, Inventions, Confidential Information
and Restrictive Covenants. Xx. Xxxxxxxxx agrees, simultaneously with the
execution of this Agreement, to execute the InforMax Agreement on Ideas,
Inventions,
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Confidential Information and Restrictive Covenants, attached hereto as
Attachment C ("Confidential Information Agreement"). Xx. Xxxxxxxxx acknowledges
and agrees that he and any person retained by him for the purposes of performing
Consulting Services for InforMax shall be bound by the Confidential Information
Agreement, and Xx. Xxxxxxxxx hereby accepts full responsibility and liability
for such persons' violation of any of the terms thereof. Xx. Xxxxxxxxx
acknowledges and agrees that the covenants made by him in the Confidential
Information Agreement shall survive termination and/or expiration of this
Agreement and the Consulting Period, and shall be construed as an agreement
independent of any other provision of this Agreement, and the existence of any
claim or cause of action of Xx. Xxxxxxxxx against InforMax, whether predicated
on this Agreement or otherwise, shall not constitute a defense to the
enforcement by InforMax of such covenants. In all other respects, this Agreement
and the Confidential Information Agreement are to be treated as one agreement,
for all purposes including but not limited to purposes of enforcement,
resolution of disputes, governing law, and consent to jurisdiction.
12. Return of Proprietary Information. Xx. Xxxxxxxxx
represents that, pursuant to Section 1(c) of the June 1999 Confidentiality
Agreement, he has returned to InforMax all documents and other tangibles that
InforMax has requested he return and/or that he does not expect to use to
perform the Consulting Services, including but not limited to diskettes and
other electronic or storage media, that contain InforMax confidential and/or
proprietary information, as defined in Section 1 of that Agreement.
13. Non-Disparagement. Xx. Xxxxxxxxx expressly agrees that
he will not make any knowingly false, disparaging, or derogatory comments, in
public or in private, about InforMax, et al., about the business affairs or
financial condition of InforMax, et al., or about any employee, director or
officer of InforMax, et al. InforMax agrees that its officers and directors
shall not make any knowingly false, disparaging, or derogatory comments
concerning Xx. Xxxxxxxxx to any third parties.
14. Confidentiality. Except as provided herein, Xx.
Xxxxxxxxx and InforMax further agree that they will not provide any form of
assistance, support, or information, including but not limited to documents,
testimony, or written or oral statements, to any person that is asserting,
investigating or intending to assert any claims against InforMax, et al. or Xx.
Xxxxxxxxx, et al. No provision of this Agreement shall be construed as
prohibiting the provision of truthful and accurate information by Xx. Xxxxxxxxx
or InforMax in response to a subpoena issued by a court of competent
jurisdiction. However, Xx. Xxxxxxxxx agrees to notify InforMax, et al., and
InforMax, et al., agrees to notify Xx. Xxxxxxxxx, et al., promptly before
complying with such a subpoena so that the parties may protect their interests,
including moving to quash the subpoena.
15. No Other Consideration. Xx. Xxxxxxxxx affirms that the
terms stated herein are the only consideration for signing this Agreement and
that no
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other representations, promises, or agreements of any kind have been made by any
person or entity to cause him to sign this Agreement.
16. Modification. This Agreement may not be released,
discharged, abandoned, supplemented, changed, or modified in any manner, orally
or otherwise, except by an instrument in writing signed and duly executed by
each of the parties hereto.
17. Entire Agreement. This Agreement along with the June
1999 Confidentiality Agreement and the Confidential Information Agreement
executed simultaneously with this Agreement contain and constitute the entire
understanding and agreement on the matters set forth in such agreements between
the parties, and supersede and cancel all previous negotiations, agreements,
commitments, and writings in connection herewith. If a conflict or inconsistency
is found between the terms of any of these agreements, the terms of the later
executed agreement shall prevail. Without limiting the foregoing, InforMax
agrees that any non-competition and non-solicitation or other continuing
obligations Xx. Xxxxxxxxx has under the June 1999 Confidentiality Agreement is
limited to the extent, if any, that they are broader or of greater duration than
obligations set forth in this Agreement and/or the Confidential Information
Agreement.
18. Waiver. Failure to insist upon strict compliance with
any term, covenant, or condition of this Agreement shall not be deemed a waiver
of such term, covenant, or condition, nor shall any waiver or relinquishment of
any right or power under this Agreement at any time or times be deemed a waiver
or relinquishment of such right or power at any other time or times.
19. Enforcement. Xx. Xxxxxxxxx agrees that the restrictions
contained in this Agreement, the June 1999 Confidentiality Agreement and the
Confidential Information Agreement executed simultaneously with this Agreement
(collectively "Agreements") are reasonable and necessary to protect the business
of InforMax and that any violation of his obligations under these Agreements
would cause InforMax substantial irreparable injury. Accordingly, Xx. Xxxxxxxxx
agrees that a remedy at law for any breach of the obligations in these
Agreements would be inadequate and that InforMax, in addition to any other
remedies available, shall be entitled to obtain preliminary and permanent
injunctive relief to secure specific performance of such obligations and to
prevent a breach or threatened breach of these Agreements without the necessity
of posting bond or security, which he expressly waives. Xx. Xxxxxxxxx agrees to
provide InforMax a full accounting of all proceeds and profits received by him
as a result of a breach of these Agreements. Unless prohibited by law, InforMax
shall have the right to retain any amounts otherwise payable by InforMax to him
to satisfy any damages awarded as a result of any breach of these Agreements.
InforMax shall also have the right to immediately terminate any payments due to
Xx. Xxxxxxxxx under this Agreement in the event of
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a material breach of any of the Agreements. He agrees that each of his
obligations specified in these Agreements is a separate and independent covenant
that shall survive termination of the Consulting Period for any reason.
20. Severability. Invalidity or unenforceability of any
provision of this Agreement shall in no way affect the validity of
enforceability of any other provision.
21. Assignability. InforMax may, without the consent of Xx.
Xxxxxxxxx, assign its rights and obligations under this Agreement to any
successor entity.
22. Choice of Law and Forum Selection. The terms of this
Agreement shall be governed by the laws of the State of Maryland. Xx. Xxxxxxxxx
and InforMax agree and submit to the exclusive jurisdiction of any court in the
State of Maryland where there is proper venue or any federal court sitting in
Maryland, in any action or proceeding arising out of or relating to this
Agreement or the transactions contemplated herein, and agrees that all claims in
respect of any such action or proceeding may be heard or determined in such
Maryland or Federal Court. Xx. Xxxxxxxxx and InforMax understand and agree that
any action or proceeding arising out of or relating to this Agreement or the
transactions contemplated herein shall be within the exclusive jurisdiction of
the State of Maryland or any federal court sitting in Maryland.
23. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original, but all of
which together will constitute one and the same Agreement.
24. Revocation Period. Xx. Xxxxxxxxx acknowledges that he
has the opportunity of twenty-one (21) days to consider this Separation
Agreement, General Release of All Claims and Consulting Agreement and that he
has been encouraged by InforMax to consult with legal counsel. The parties
recognize that Xx. Xxxxxxxxx may elect to sign this Agreement prior to the
expiration of the twenty-one (21) day consideration period specified above, and
Xx. Xxxxxxxxx agrees that if he elects to do so he shall manifest such election
by signing Attachment B hereto. Further, he understands that for a period of
seven (7) days following execution of this Agreement, he has the right to revoke
it, including his waiver of claims under the ADEA, a federal statute that
prohibits employers from discriminating against its employees who are at least
40 years of age ("Revocation Period"). He agrees that if he elects to revoke
this Agreement within this seven (7) day period, he must inform InforMax by
delivering a written notice of revocation to InforMax no later than 5:00 p.m. on
the seventh calendar day after he signs the release. Such notice must be
delivered to Xxx Xxxxxx, InforMax, Inc., 0000 Xxxxxxxxx Xxxxxx, Xxxxx #0000,
Xxxxxxxx, XX 00000. Xx. Xxxxxxxxx agrees that if he elects to exercise this
revocation right, this Agreement shall, unless otherwise mutually agreed in
writing,
12
be completely void and Xx. Xxxxxxxxx shall not be entitled to receive the
benefits described in this Agreement.
25. Indemnification. Xx. Xxxxxxxxx shall have those rights
to indemnification in his capacity as a former officer and a director set forth
in Section 6.1 of the InforMax, Inc. ByLaws in effect at the time of the
execution of this Agreement and the Board has further determined that he shall
be indemnified thereunder for any acts or omissions during the Consulting Period
pursuant to that Section 6.1 without regard to whether he is then a director or
officer.
26. Duly Authorized. The execution, delivery, and
performance by InforMax of this Agreement, including the Confidential
Information Agreement, and the releases given hereunder, have been duly
authorized by all necessary corporate action. This Agreement and the
Confidential Information Agreement have been duly executed and delivered by
InforMax and Xx. Xxxxxxxxx and constitute valid and legally binding obligations
of InforMax and Xx. Xxxxxxxxx enforceable in accordance with their respective
terms.
27. Acknowledgements. Xx. Xxxxxxxxx has fully discussed the
terms of this Agreement with the counsel of his choosing and has fully reviewed
with counsel any potential claims against InforMax, et al. BASED UPON
DISCUSSIONS WITH COUNSEL OF HIS CHOICE, XX. XXXXXXXXX HEREBY ACKNOWLEDGES THAT
HE UNDERSTANDS THE TERMS OF THIS SEPARATION AGREEMENT AND GENERAL RELEASE.
XX. XXXXXXXXX FURTHER ACKNOWLEDGES THAT HE HAS CAREFULLY READ
AND FULLY UNDERSTANDS THE PROVISIONS OF THIS SEPARATION AGREEMENT AND GENERAL
RELEASE, INCLUDING THE RELEASE OF ALL CLAIMS, THAT HE HAS HAD THE OPPORTUNITY TO
FULLY DISCUSS IT WITH COUNSEL, THAT HE KNOWS THE CONTENTS OF THIS AGREEMENT,
THAT HE HAS BEEN GIVEN A PERIOD OF TWENTY-ONE (21) DAYS WITHIN WHICH TO CONSIDER
THIS AGREEMENT, AND THAT HE UNDERSTANDS THAT HE HAS THE RIGHT TO REVOKE THIS
AGREEMENT WITHIN SEVEN (7) DAYS OF THE DATE HE SIGNS IT, AFTER WHICH IT BECOMES
FULLY ENFORCEABLE.
XX. XXXXXXXXX FURTHER ACKNOWLEDGES THAT HE IS SIGNING THIS
AGREEMENT VOLUNTARILY AND WITHOUT COERCION. XX. XXXXXXXXX FREELY AND VOLUNTARILY
AGREES TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND SIGNS THE SAME AS
HIS OWN FREE ACT.
[SIGNATURE PAGE FOLLOWS]
13
IN WITNESS WHEREOF, the parties have duly executed this
Separation Agreement, General Release of All Claims and Consulting Agreement by
their signatures below:
XX. XXXXXXXXX INFORMAX, INC.
/S/ Xx. Xxxxxxxxx Xxxxxxxxx /S/ Xxxx X. Xxxxx
--------------------------- ------------------------------------
By: Xxxx X. Xxxxx
Title: EVP, Finance & Administration
Date: October 17, 2001 Date: October 17, 2001
WITNESS: WITNESS:
/S/ Illegible /S/ Illegible
----------------------------- ------------------------------------
We hereby agree to the termination
of the August 2000 Letter Agreement
between Xx. Xxxxxxxxx and InforMax,
Inc.
AMERSHAM PHARMACIA BIOTECH, INC.
/s/ Xxxxxx Xxxxxxxx
------------------------------------
By: Xxxxxx Xxxxxxxx
Title: VP, Bioinformatics
Date: October 17, 2001
14
ATTACHMENT A
ANNOUNCEMENT OF RESIGNATION FROM POSITION
AS CHIEF EXECUTIVE OFFICER
ATTACHMENT B
ELECTION TO EXECUTE PRIOR TO EXPIRATION OF
TWENTY-ONE DAY CONSIDERATION PERIOD
I, Xxxxxxxxx Xxxxxxxxx, Ph.D., understand that I have at least
twenty-one (21) days within which to consider and execute the foregoing
Separation Agreement, General Release of All Claims and Consulting Agreement.
However, after having an opportunity to consult counsel, I have freely and
voluntarily elected to execute the Agreement before the twenty-one (21) day
period has expired.
10/17/2001 /S/ Xx. Xxxxxxxxx Xxxxxxxxx
---------- ---------------------------
Date Xx. Xxxxxxxxx
ATTACHMENT C
AGREEMENT ON IDEAS, INVENTIONS,
CONFIDENTIAL INFORMATION AND RESTRICTIVE COVENANTS
THIS AGREEMENT is entered into between INFORMAX, INC. ("the Company")
and me, the undersigned, an independent contractor serving as a consultant to
the Company pursuant to a specific Separation Agreement, General Release of All
Claims and Consulting Agreement ("Separation and Consulting Agreement") signed
simultaneously with this Agreement on Ideas, Inventions, Confidential
Information and Restrictive Covenants ("Confidential Information Agreement").
The Company now has and expects to develop confidential and proprietary
materials and highly sensitive information of immeasurable value which I
recognize must be carefully protected for the Company to be successful. I
acknowledge that I have been and will continue to be granted access to such
information from the Effective Date of Termination of my employment until three
(3) years thereafter ("Consulting Period"), during which time I will be
providing the consulting services to the Company specified in the Separation and
Consulting Agreement Section 3 ("Consulting Services"). I further recognize and
acknowledge that the Company would not have retained my services as a consultant
but for my commitment to the agreements and covenants contained in this
Agreement on Ideas, Inventions, Confidential Information and Restrictive
Covenants. Accordingly, in consideration of my retention by the Company, the
sufficiency of which I expressly acknowledge, the Company and I, intending to be
legally bound, agree as follows:
1. COMPANY CONFIDENTIAL MATERIALS AND INFORMATION
1.1. The following materials and information, and all physical
embodiments of such material and information, whether having existed, now
existing, or to be developed or created during the Consulting Period by the
Company (herein referred to collectively as the "Company Confidential
Information") are covered by this Agreement: (a) All information to which the
Company gave me access, all information disclosed to me by the Company, and all
information developed for the Company by me, alone or with others, that directly
or indirectly relates to the business, products, services and/or licensing that
the Company engages in, plans to engage in, or contemplates engaging in, the way
Company conducts its business and markets its products and services, and/or
customers and/or prospective customers; (b) any additional information which is
not generally known to the public or within the industry or trade areas in which
Company competes which gives the Company any advantage over its competitors; and
(c) any information that is confidential and proprietary to a third party that
the Company has and in the future will receive from such third party subject to
the Company's duty to maintain the confidentiality of such information and to
use it for certain limited purposes. This information includes but is not
limited to research, development, production, creation, sale and/or licensing of
products and services,
15
processes, techniques, marketing plans or strategies, designs, technical data,
drawings, notes, memoranda, software, hardware, communications, computer
programs and codes, works of authorship, internal business procedures, business
strategies, customer data, pricing practices, quotes, bids, schematics, slides,
agreements, financial data, financial or investment plans or strategies,
management plans or strategies, licensing techniques and practices, supplier,
subcontractor and prime contractor names and contracts and other vendor or
supplier information, customer information and requirements, prospective
customer information and requirements, computer security controls, employee
data, and other proprietary products or services, whether existing or in any
stage of research, creation, development or production, in addition to any other
written or machine-readable expressions of such information as are fixed in any
tangible media.
1.2. Trade Secrets. I agree that the Company Confidential Information
identified in paragraph 1.1, other than information provided by third parties,
constitutes Company trade secrets.
2. GENERAL KNOWLEDGE. The general skills, knowledge and experience
gained during the Consulting Period with Company, and information publicly
available or generally known within the industry or trade areas in which the
Company competes, are not considered Company Confidential Information.
3. CONSULTANT'S OBLIGATIONS. I acknowledge and agree that Company
Confidential Information is the exclusive property of the Company and that,
during the term of the Consulting Period I will have access to Company
Confidential Information and will occupy a position of trust and confidence with
respect to the Company's affairs and business. I hereby acknowledge and agree:
that my services to the Company will be special and unique; that the interests
afforded protection by this Confidential Information Agreement are Company's
legitimate business interests, deserving of protection, including protection of
trade secrets, customer relationships and goodwill; that the Company's products
and services can be developed and marketed worldwide, and therefore, the
protection afforded the Company must likewise be worldwide; that the Company
would not have entered into its consulting relationship with me without my
execution of this Confidential Information Agreement; and that my obligations
under this Section 3 shall continue after termination of the Consulting Period
for any reason. Both during and after the term of the Consulting Period, I agree
to take the following steps to preserve the confidential and proprietary nature
of Company Confidential Information and to preserve the Company's goodwill:
3.1. Non-Disclosure. I will not use, disclose or transfer any Company
Confidential Information other than as authorized by the Company within the
scope of my duties with the Company, and will not use in any way other than in
the Company's business any Company Confidential Information, nor will I accept
any professional engagement or employment that likely will result in the use or
disclosure, even if inadvertent, of Company Confidential Information. I
understand
2
that this non-disclosure obligation applies even with respect to employees of
the Company and other consultants retained by the Company, except where such
disclosure is made in the course of the performance of my consulting duties. I
understand that I am not allowed to sell, license or otherwise exploit any
products (including software in any form) which embody or otherwise exploit in
whole or in part any Company Confidential Information.
3.2. Preservation, Removal and Return of Information. I agree to take
all reasonable steps to preserve the confidential and proprietary nature of
Company Confidential Information and to prevent the inadvertent or accidental
disclosure of Company Confidential Information. I acknowledge and agree that all
Company Confidential Information, whether prepared by me or otherwise coming
into my possession while I am performing services for the Company, shall remain
the exclusive property of Company. I agree that during my Consulting Period with
the Company and thereafter, I will not use, disclose, transfer, or remove from
the Company's premises any Company Confidential Information other than as
authorized by the Company. I agree to return to the Company all Company
Confidential Information and copies thereof, in whatever form, at any time upon
the request of the Company, and at the time of the termination of my Consulting
Services for any reason. I agree not to retain any copies of any Company
Confidential Information and Company-owned materials after the termination of
the Consulting Period for any reason whatsoever.
3.3. Additional Covenants. I acknowledge the highly competitive
nature of the industry in which the Company is involved, and I acknowledge that
the agreements and covenants contained in this Section 3 are reasonable and are
necessary to protect the Company's interests. I further acknowledge that this
Agreement does not restrict my ability to be gainfully employed, and I
acknowledge that the geographic boundaries, scope of prohibited activities, and
time duration of this subsection 3.3 are reasonable in nature and no broader
than are necessary to protect the legitimate business interests of the Company.
I agree not to raise any objection to the reasonableness of this subsection 3.3
in any action or proceeding to enforce the terms of this Agreement. In order to
induce the Company to enter into a consulting relationship with me, I covenant
and agree that during the Consulting Period and for twelve (12) months following
the later of the termination of the Consulting Period for any reason or my
termination as a member of the Company's Board of Directors (but in no event
beyond the fourth anniversary of the date of this Agreement):
(a) without Company's written express consent, I will not
directly or indirectly solicit (other than on behalf of the Company) business or
contracts for any products or services competitive with the Company's Business
of the type provided, developed or under development by the Company while I was
providing services, from or with (1) any person or entity which I have knowledge
was a customer of the Company for such products or services as of, or within one
year prior to the date of termination of the Consulting Period, or (2) any
prospective customer which I am
3
aware the Company was soliciting as of, or within one year prior to such
termination; I will not directly or indirectly contract with any such customer
or prospective customer, for any product or service competitive with the
Company's Business of the type provided, developed or which was under
development by the Company during the Consulting Period; and I will not
knowingly interfere or attempt to interfere with any transaction, agreement or
business relationship in which the Company was involved during the Consulting
Period, including but not limited to relationships with customers, prospective
customers, contractors, vendors, service providers, and suppliers; and
(b) I will not directly or indirectly solicit, recruit, or
hire, or in any manner assist in the hiring, solicitation or recruitment of any
of the Company's employees or individuals providing consulting services, or any
individuals who were employed by or were providing any consulting services to
the Company within twelve (12) months before the termination of the Consulting
Period (excluding, for all purposes under this subsection (b), (i) individuals
employed by entities providing consulting services that employ five or more
employees and (ii) any individuals who are consultants providing legal,
accounting, or other similar professional services not primarily related to the
Company's Business); and
(c) To prevent the misuse, misappropriation, or unauthorized
disclosure of Company's trade secrets, including Company Confidential
Information, and to protect the goodwill of Company, I will not, without
Company's express written consent, directly or indirectly, individually or as an
officer, director, employee, shareholder (except if as a shareholder of less
than 2% of a publicly traded company), consultant, contractor, partner, joint
venturer, agent, equity owner, or in any capacity whatsoever, engage in or
promote any business or contemplated business that is competitive with the
"Company's Business." "Company's Business" is the research, development,
manufacture, sale and/or licensing of products and services related to
bioinformatic (including pharma-informatic, cheminformatic and proteomics)
software tools and related hardware and software; provided, however, that the
parties agree that Pluvita Corporation and Stemron Corporation in the businesses
in which they are currently engaged are not competitive with InforMax for the
purpose of this Confidential Information Agreement or the June 1999
Confidentiality Agreement; provided further that I may be employed in or provide
services to a division or subsidiary of an entity that may have another division
or subsidiary that is competitive with the Company's Business so long as my
activities do not relate in any way to the competing division or subsidiary; and
provided, further that I may engage in activities with respect to investment in,
management of, or association with venture capital or investment funds,
partnerships, or limited liability companies so long as I do not assist or
advise such funds, directly or indirectly, in connection with the funding of any
business competitive with the Company's Business.
Subject to and limited by the foregoing sentence, I
agree that the Company's Business will also include any other businesses that
InforMax engages
4
in or, after the date of this Agreement, develops plans to engage in (so long as
I am given reasonable advance written notice, after the date of this Agreement,
of such plans so that I may exercise my right to resign as a member of the Board
of Directors) while I remain a member of the Company's Board of Directors.
InforMax acknowledges that many companies use
bioinformatics and pharma-informatics as a tool to providing services and
expressly agrees that the presence of a bioinformatics or pharma-informatics
component (through which such other company does not seek to derive revenue from
sales to the public) to an entity's primary business or operations does not, by
itself, raise a presumption that such company is competitive with the Company's
Business.
3.4. The parties agree that if a Court of competent jurisdiction
finds that any term of this Section 3 is for any reason excessively broad in
scope or duration, such term shall be construed in a manner to enable it to be
enforced to the maximum extent possible. Further, the covenants in this Section
shall be deemed to be a series of separate covenants and agreements, one for
each and every region of each state and political division worldwide. If, in any
judicial proceeding, a court of competent jurisdiction shall refuse to enforce
any of the separate covenants deemed included herein, then at the option of the
Company, wholly unenforceable covenants shall be deemed eliminated from the
provision hereof for the purpose of such proceeding to the extent necessary to
permit the remaining separate covenants to be enforced in such proceeding. In
addition, if a court or other enforcement body finds that any provision of this
Agreement may not be enforced as written because of some public policy, I agree
that such court or enforcement body shall modify and construe such provision to
permit its enforcement to the maximum extent permitted by law.
4. PRIOR PROPRIETARY INFORMATION. I agree not to bring onto the
Company's premises, disclose to the Company, or use in the course of providing
Consulting Services to the Company, any information or material relating to the
business of any former employer, client, or of any other third party that is
intended by that party not to be disclosed to the Company. I further agree that
any information, materials, or products I develop for the Company will not in
any way be based upon such information.
5. IDEAS AND INVENTIONS. I agree that all drawings, designs,
specifications, notes, improvements, discoveries, inventions, ideas, or other
work developed by me and provided to the Company in the course of my performance
of Consulting Services shall be works made for hire and shall be the exclusive
property of the Company to use, publish and license in its discretion. The
Company shall own all of the rights, including without limitation patents and
copyrights, in, arising or derived from, or related to such material. In the
event such material may not, by operation of law or otherwise, be a work made
for hire, I further agree to convey, assign, and transfer all of my rights,
title and interest in such materials to the Company, and agree to sign all
documents necessary to effectuate such
5
assignment, transfer and ownership and to assist with patent and all other
applications and filings, prosecution and defense in such connection. I agree
not to make any use of such materials for any purpose other than purposes
directly related to the business of the Company without the express written
consent of the Company. I further agree to disclose promptly and routinely to
the Company all such materials covered by this Agreement, and I will, upon
request, execute specific assignments and take any action necessary to enable
the Company to secure patents, copyrights or otherwise secure its proprietary
rights in such material.
6. WRITTEN MATERIALS
6.1. Ownership. I acknowledge and agree that all writings, including
without limitation, software program code, logic diagrams, flow charts, decision
charts, drawings, procedural diagrams, coding sheets, documentation manuals of
any kind produced by me in the course of performance of Consulting Services
under the Consulting Agreement shall be made for hire and shall be the property
of the Company (unless such works are in the public domain under the Federal
Procurement Regulations), including without limitation any copyrights on those
writings. In the event any such writing may not, by operation of law or
otherwise, be a work made for hire, I hereby assign to the Company the ownership
of copyright in such works, whether published or unpublished. I further agree
upon request to execute such specific assignments or instruments and take any
action necessary to enable the Company to secure its copyright rights in such
works.
6.2. Moral Rights. I understand that the term "moral rights" means
any rights of paternity or integrity, including any right to claim authorship of
a copyrightable work, to object to a modification of such copyrightable work,
and any similar right existing under the judicial or statutory law of any
country in the world or under any treaty, regardless of whether or not such
right is denominated or generally referred to as a "moral right." I forever
hereby waive and agree never to assert any moral rights I may have in any
copyrightable work that is assigned to the Company as a result of Section 6.1
hereof.
7. PUBLICATIONS. I agree not to submit any writing for publication
or deliver any speech that contains any information relating to the business of
the Company, unless I receive advance written authorization from an authorized
representative of the Company.
8. CONFLICTING OBLIGATIONS AND RIGHTS. I agree to inform the
Company of any apparent conflicts between my work for the Company and (a) any
obligations I may have to preserve the confidentiality of another's proprietary
information or materials or (b) any rights I claim to any inventions or ideas
before using the same on the Company's behalf. Otherwise, the Company may
conclude that no such conflict exists and I agree thereafter to make no such
claim against the Company. The Company shall receive such disclosures in
confidence and consistent with the objectives of avoiding any conflict of
obligations and rights or the appearance of any conflict of interest.
6
9. ENFORCEMENT. I acknowledge that in the event of the unauthorized
use or disclosure of any of Company Confidential Information or materials by me,
or any breach of this Confidential Information Agreement, the Company's business
interests will be irreparably injured, the full extent of the Company's damages
will be impossible to ascertain, monetary damages will not be an adequate remedy
for the Company, and the Company will be entitled to enforce this Confidential
Information Agreement and prevent a breach or threatened breach of such
Agreement by a preliminary or permanent injunction or other equitable relief,
without the necessity of posting bond or security, which I expressly waive. I
understand that the Company may waive some of the requirements expressed in this
Confidential Information Agreement, but that such a waiver to be effective must
be made in writing by the Company's Chief Executive Officer and should not in
any way be deemed a waiver of the Company's right to enforce any other
requirements or provisions of this Confidential Information Agreement. I agree
that each of my obligations specified in this Confidential Information Agreement
is a separate and independent covenant that shall survive any termination or
expiration of this Confidential Information Agreement, of my Consulting
Services, or of my membership on the Company's Board of Directors.
10. CHOICE OF LAW AND FORUM SELECTION. The terms of this
Confidential Information Agreement will be construed, enforced and governed by
the laws of the State of Maryland without regard to conflict or choice of law
rules. With regard to any claims, complaints or proceedings brought related to
my obligations under this Confidential Information Agreement, at all times each
party hereto (a) irrevocably submits to the exclusive jurisdiction of any
Maryland court or Federal court sitting in the State of Maryland in any action
or proceeding arising out of or relating to this Confidential Information
Agreement or the transactions contemplated hereby; (b) to the extent permitted
by law irrevocably consents to the service of any and all process in any such
proceeding by the mailing of copies of legal process to such party at the
address specified at the end of such Agreement; and (c) to the extent permitted
by law irrevocably waives any objection such party may have to the laying of
venue or the convenience of the forum for any such proceeding in any of such
courts. Nothing herein shall affect the right of any party to serve process in
any manner permitted by law.
11. GENERAL TERMS. This Confidential Information Agreement and the
Separation and Consulting Agreement, along with the June 1999 Confidentiality
Agreement contain and constitute the entire understanding and agreement between
the Company and me with regard to their subject matter, superseding any prior
oral or written, express or implied negotiations and agreements. If a conflict
or
7
inconsistency is found between the terms of any of these agreements, the terms
of the later executed agreement shall prevail. This Agreement is binding upon my
heirs, executors, administrators, and other legal representatives and inures to
the benefit of the Company, its successors, assigns, and designees. The
Agreement may not be changed in any respect except by a written agreement signed
by me and an authorized officer or director of the Company. The delay or
omission by the Company or me in exercising its/my rights under this Agreement,
or the failure of either party to insist on strict compliance with any of the
terms, covenants, or conditions of this Agreement by the other party, shall not
be deemed a waiver of any terms, covenants or conditions of this Agreement, nor
shall any waiver or relinquishment of any right or power at any one time or
times be deemed a waiver or relinquishment of that right or power for all times
or any other time. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, and all of which together shall
constitute one and the same instrument. If any provision of the agreement is
held to be invalid, illegal or unenforceable for any reason, the validity,
legality and enforceability of the remaining provisions will not in any way be
affected or impaired thereby.
By my signature below, I acknowledge that I have reviewed this agreement
carefully and understand that the covenants and obligations it contains are
binding on me.
/S/ Xxxxxxxxx Xxxxxxxxx, Ph.D
-----------------------------
Xxxxxxxxx Xxxxxxxxx, Ph.D.
Date Signed:10/17/2001
----------
Accepted and agreed to on behalf of INFORMAX, INC.
By:/s/ Xxxx X. Xxxxx
-------------------------------------
Name: Xxxx X. Xxxxx
Title: EVP, Finance & Administraton
8
