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EXHIBIT 10.11
INTRACEL CORPORATION
Employment Agreement with Xxxxxxxx X. Xxxxx
Dated: August 24, 1998
INTRACEL CORPORATION
EMPLOYMENT AGREEMENT
This Agreement is made as of August 24, 1998 by and between Intracel
Corporation ("Intracel" or "Company"), a Delaware Corporation having a place of
business at 0000 X.X. Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, XX 00000 and its
affiliates and subsidiaries, and Xxxxxxxx X. Xxxxx of 00 Xxxxxxxx Xxxx, Xxxxxx,
XX 00000 ("Employee"), on the terms below listed:
1. Title: Employee shall be employed by Intracel in the capacity of Chief
Financial Officer and Senior Vice President, Corporate Development. As such,
Employee shall perform all duties required in accord with said position as
demanded.
2. Compensation: Employee shall be entitled to $180,000 per annum or as may
be amended from time to time. Employee will be eligible for bonuses at the
discretion of management, such bonuses to be tied to performance goals to be
agreed upon between Employee and the Company.
3. Vacation. Employee will be entitled to three (3) weeks paid vacation per
annum.
4. Other Benefits. Employee shall be entitled to participation in the
Company's Health Plan and 401K plan, as amended from time to time at the
Company's discretion.
5. Performance Review. Employee shall be reviewed by the relevant supervisor
not less than one (1) time per annum.
6. Definitions:
(a) Proprietary Information. As used in this Agreement, "Proprietary
Information" means information which the Company possesses or to which the
Company has rights which has commercial value. Proprietary Information includes,
by way of example and without limitation, trade secrets, product ideas, designs,
configurations, processes, techniques, formulas, software, improvements,
inventions, data, know-how, copyrightable materials, marketing plans and
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INTRACEL CORPORATION
Employment Agreement with Xxxxxxxx X. Xxxxx
Dated: August 24, 1998
strategies, sales and financial reports and forecasts, and customer lists.
Proprietary Information, includes information developed by Employee in the
course of this employment by Company or otherwise relating to inventions
which belong to the Company under Section 9 below, as well as other
information to which Employee may have access in connection with this
employment.
(b) Inventions and Developments. As used in this Agreement. "Inventions and
Developments" means any all inventions, developments, creative works and
useful ideas of any description whatsoever, whether or not patentable.
Inventions and Developments include, by way of example and without
limitation, discoveries and improvements which consist of or relate to any
form of Proprietary Information.
(c) Company-Related Inventions and Developments. For purposes of this
Agreement, "Company-Related Inventions and Developments" means all
Inventions and Developments which either (a) relate at the time of
conception or development to the actual or demonstrably anticipated
business of the Company or if its actual or demonstrably anticipated
research and development; (b) result from or relate to any work performed
for the Company, whether or not during normal business hours; (c) are
developed on Company time; or (d) are developed through the use of the
Company's Proprietary Information, equipment and software, or other
facilities or resources.
7. Confidentiality. Employee understands and agrees that this employment creates
a relationship of confidence and trust between Employee and the Company with
respect to (a) all Proprietary Information, and (b) the confidential information
of others with which the Company has a business relationship. The information
referred to in clauses (a) and (b) of the preceding sentence is referred to in
this Agreement, collectively, as "Confidential Information". At all times, both
during this employment with the Company and after its termination. Employee
will keep in confidence and trust all such Confidential Information, and will
not use or disclose any such Confidential Information, and will not use or
disclose any such Confidential Information without the written consent of the
Company, except as may be necessary in the ordinary course of performing
Employee's duties to the Company. The restrictions set forth in this Section 9
will not apply to information which is generally known to the public or in the
trade, unless such knowledge results from an unauthorized disclosure by
Employee, but this exception will not affect the application of any other
provision of this Agreement to such information in accordance with the terms of
such provision.
8. Documents, Records, etc. All documents, records, apparatus, equipment and
other physical property, whether or not pertaining to Proprietary Information,
which are furnished to Employee by the Company or are produced by Employee in
connection with this employment will be and remain the sole property of the
Company. Employee will return to the Company all such materials and property as
and when requested by
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INTRACEL CORPORATION
Employment Agreement with Xxxxxxxx X. Xxxxx
Dated: August 24, 1998
the Company. In any event, Employee will return all such materials and property
immediately upon termination of this employment for any reason. Employee will
not take in any form any such materials or property or any copies thereof upon
such termination.
9. Ownership of Inventions and Developments. Employee agrees that all
Company-Related Inventions and Developments which Employee conceives or
develops, in whole or in part, either alone or jointly with others, during the
term of this employment with the Company will be the sole property of the
Company. The Company will be the sole owner of all patents, copyrights and other
proprietary rights in and with respect to such Company-Related Inventions and
Developments. To the fullest extent permitted by law, such Company-Related
Inventions and Developments will be deemed works made for hire. Employee hereby
transfers and assigns to the Company any proprietary rights which Employee may
have or acquire in any such Company-Related Inventions and Developments, and
Employee waives any moral rights or other special rights which Employee may have
or accrue therein. Employee agrees to execute any documents and take any actions
that may be required to effect and confirm such transfer and assignment and
waiver. The provisions of this Section 9 will apply to all Company-Related
Inventions and Developments which are conceived or developed during the term of
the employment with the Company, whether before or after the date of this
Agreement, and whether or not further development or reduction to practice may
take place after termination of this employment, for which purpose it will be
presumed that any Company-Related inventions and developments conceived by
Employee which are reduced to practice within one year after termination of this
employment were conceived during the term of this employment with the Company
unless Employee is able to establish a later conception date by clear and
convincing evidence. The provisions of this Section 9 will not apply, however,
to any Inventions and Developments made by Employee prior to this employment by
the Company.
10. Disclosure of Inventions and Developments. Employee agrees promptly to
disclose to the company, or any persons designated by it, all Company-Related
Inventions and Developments which are or may be subject to the provisions of
Section 7.
11. Obtaining and Enforcing Proprietary Rights. Employee agrees to assist the
Company, at the Company's request from time to time and at the Company's
expense, to obtain and enforce patents, copyrights or other proprietary rights
with respect to Company-Related Inventions and Developments in any and all
countries. Employee will execute all documents reasonably necessary or
appropriate for this purpose. This obligation will survive the termination of
this employment, provided that the Company will compensate Employee at a
reasonable rate after such termination for time actually spent by Employee at
the Company's request on such assistance. In the event that the
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INTRACEL CORPORATION
Employment Agreement with Xxxxxxxx X. Xxxxx
Dated: August 24, 1998
Company is unable for any reason whatsoever to secure Employee's signature to
any document reasonably necessary or appropriate for any of the foregoing
purposes (including renewals, extensions, continuations, divisions or
continuations in part). Employee here irrevocably designates and appoints the
Company and its duly authorized officers and agents as Employee's agents and
attorneys-in-fact to act for Employee and on Employee's behalf, but only for
the purpose of executing and filing any such document and doing all other
lawfully permitted acts to accomplish the foregoing purposes with the same
legal force and effect as if executed by Employee.
12. Competitive Activities. During the term of this employment with the
Company and for a period of 6 months thereafter, Employee will not, directly or
indirectly, whether as owner, partner, consultant, agent, employee, co-venturer
or otherwise, engage in or participate in any business activity anywhere in the
world which develops, manufactures or markets products or performs services
which are competitive with the products or services of the Company, or products
or services which the Company has under development or which are the subject of
active planning at any time during the term of this employment. Employee
understands that the restrictions set forth in this Section 12 are intended to
protect the Company's interest in its Proprietary Information and established
customer relationships and goodwill, and agrees that such restrictions are
reasonable and appropriate for this purpose.
13. Third-Party Agreements and Rights. Employee hereby confirms that Employee
is not bound by the terms of any agreement with any previous employer or other
party which restricts in any way Employee's use or disclosure of information or
Employee's engagement in any business, except as may be disclosed in a separate
Schedule attached to this Agreement prior to its acceptance by the Company.
Employee has delivered to the Company true and complete copies of any agreements
listed on said Schedule. Employee represents to the Company that Employee's
execution of this Agreement, employee's employment with the Company and the
performance of Employee's proposed duties for the Company will not violate any
obligations Employee may have to any such previous employer or other party. In
Employee's work for the Company, Employee will not disclose or make use of any
information in violation of any agreements with or rights of any such previous
employer or other party, and Employee will not bring to the premises of the
Company any copies or other tangible embodiments of non-public information
belonging to or obtained from any such previous employment or other party.
14. Injunction. Employee agrees that it would be difficult to measure any
damages caused by the Company which might result from any breach by Employee
of the promises set forth in this Agreement, and that in any event money
damages would be an inadequate remedy for any such breach. Accordingly,
Employee agrees that if Employee breaches, or proposes to breach, any portion
of this Agreement, the
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INTRACEL CORP.
INTRACEL CORPORATION
Employment Agreement with Xxxxxxxx X. Xxxxx
Dated: August 24, 1998
Company shall be entitled, in addition to all other remedies that it may have
to an injunction or other appropriate equitable relief to restrain any such
breach without showing or proving any actual damage to the Company.
15. No Employment Term. Employee understands that this employment with the
Company is at will. Employee understands that as an at-will employee, Employee
may resign from employment with the Company at any time and for any reason and
the Company may terminate this employment at any time and for any reason.
Employee understands that this provision of this Agreement may only be
modified by a formal written employment contract signed by both Employee and an
authorized representative of the Company's management.
16. Binding Effect. This Agreement will be binding upon Employee and
Employee's heirs, executors, administrators and legal representatives and will
inure to the benefit of the Company, any subsidiary of the Company, and its and
their respective successors and assigns.
17. Severance. When discharged for (a) no cause, (b) the sale or divestiture of
all or substantially all of the Company, or (c) change in the control of the
Company, then Employee will be entitled to six months severance at Employee's
salary at the time of discharge.
18. Enforceability. If any portion or provision of this Agreement is to any
extent declared illegal or unenforceable by a court of competent jurisdiction,
then the remainder of this Agreement, or the application of such portion or
provision in circumstances other than those as to which it is so declared
illegal or unenforceable, will not be affected thereby, and each portion and
provision of this Agreement shall be valid and enforceable to the fullest
extent permitted by law. In the event that any provision of this Agreement is
determined by any court of competent jurisdiction to be unenforceable by reason
of excessive scope as to geographic, temporal or functional coverage, such
provision will be deemed to extend only over the maximum geographic, temporal
and functional scope as to which it may be enforceable.
19. Entire Agreement. This Agreement constitutes the entire agreement between
the Company and Employee with respect to the subject matter hereof, and
supersedes all prior representations and agreements with respect to such
subject matter except previous agreements with explicit bonus provisions. This
Agreement may not be amended, modified or waived except by a written instrument
duly executed by the person against whom enforcement of such amendment,
modification or waiver is sought. The failure of any party to require the
performance of any term or obligation of
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INTRACEL CORPORATION
Employment Agreement with Xxxxxxxx X. Xxxxx
Dated: August 24, 1998
this Agreement, or the waiver by any party of any breach of this Agreement, in
any particular case will not prevent any subsequent enforcement of such term or
obligation or to be deemed a waiver of any separate or subsequent breach.
20. Notices. Any notices, requests, demands and other communications provided
for by this agreement will be sufficient if in writing and delivered in person
or sent by registered or certified mail, postage prepaid, to Employee at the
last address which Employee has filed in writing with the Company or, in the
case of any notice to the Company, at its main offices, to the attention of its
Chief Executive Officer.
21. Governing Law. This is a Washington contract and shall be construed under
and be governed in all respects by the laws of the Commonwealth of Washington.
I UNDERSTAND THAT THIS AGREEMENT AFFECTS IMPORTANT RIGHTS. I HAVE READ IT
CAREFULLY AND AM SATISFIED THAT I UNDERSTAND IT COMPLETELY.
/s/ Xxxxxxxx X. Xxxxx
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Xxxxxxxx X. Xxxxx
Accepted and Agreed to by Intracel Corporation
By: /s/ XXXXX X. XxXXXXXX
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Name: Xxxxx X. XxXxxxxx
Title: President & Chief Executive Officer
Date: August 24, 1998
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INTRACEL CORPORATION
Employment Agreement with Xxxxxxxx X. Xxxxx
Dated: August 24, 1998
SCHEDULE OF PRIOR INVENTIONS
Employee Name: Xxxxxxxx X. Xxxxx
Date: August 24, 1998
/s/ XXXXXXXX X. XXXXX
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Xxxxxxxx X. Xxxxx
Accepted and Agreed to by Intracel Corporation
By: /s/ XXXXX X. XxXXXXXX
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Name: Xxxxx X. XxXxxxxx
Title: President & Chief Executive Officer
Date: August 24, 1998
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INTRACEL CORPORATION
Employment Agreement with Xxxxxxxx X. Xxxxx
Dated: August 24, 1998
SCHEDULE OF THIRD-PARTY AGREEMENTS
Employee Name: Xxxxxxxx X. Xxxxx
Date: August 24, 1998
/s/ XXXXXXXX X. XXXXX
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Xxxxxxxx X. Xxxxx
Accepted and Agreed to by Intracel Corporation
By: /s/ XXXXX X. XxXXXXXX
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Name: Xxxxx X. XxXxxxxx
Title: President & Chief Executive Officer
Date: August 24, 1998
