EMPLOYMENT AGREEMENT
AGREEMENT dated as of October 1, 1996 between UNIVEC, Inc., a New York
corporation, having an office at 000 Xxxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxx
00000 (the "Company"), and Xxxxx Xxxxxxxx, an individual with an address at 00
Xxxxxx Xxxxxx, Xxxxx Xxxx, Xxx Xxxx 00000 ("Employee").
WHEREAS, the Employee has been employed by the Company as Director of
Research and Development since August 1992;
WHEREAS, the Company desires to continue the employment of the Employee and
Employee agrees to continue his employment with the Company on the terms and
conditions herein provided;
NOW THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties agree as follows:
1. Employment and Duties. The Company hereby employs Employee, and Employee
hereby accepts employment, as Director of Research and Development of the
Company on the terms and conditions set forth herein. In such capacity, Employee
shall provide the Company with research and development advice and services
relating to its locking clip patent for its non-reusable syringes until
commencement of production and shall perform such other research and development
projects as may be assigned to him from time to time by the Company's President,
to whom Employee shall report. During Employee's employment hereunder, he shall
be allowed to pursue other business activities which will not conflict or
otherwise interfere with the performance of his duties hereunder, provided they
are not
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competitive with the business of the Company and the performance of his duties
hereunder has priority over such other business activities. Employee will use
his best efforts to advance the Company's interests at all times. It is
anticipated that Employee will devote an average of at least 24 hours per week
in the performance of his duties hereunder. From time to time, as necessary,
Employee and the President of the Company, or his designee, shall agree on a set
of research and development objectives for particular projects, including the
documentation required in connection therewith, and an estimate of the number of
hours to complete the project ("Estimated Project Hours").
2. Term. Subject to the termination provisions of Section 5 hereof,
Employee's employment by the Company hereunder will be for a term commencing on
the date hereof and ending on July 31, 1997 (the "Employment Term").
3. Place of Performance. Unless specifically instructed by the President of
the Company, or his designee, to perform services at some other location,
Employee shall perform his duties hereunder at the Company's offices.
4. Compensation. During the Employment Term, the Company shall pay the
Employee for his services hereunder at the rate of $50 per hour. Employee shall
submit a true and accurate daily account of the number of hours (expressed to
the nearest half hour) devoted to the performance of his duties hereunder,
together with an itemized expense report and list of objectives accomplished, to
the Company's President or his designee, on the 15th and last day of each
calendar month during the Employment Term. Employee understands and agrees that
unless specifically authorized in writing, in advance by the Company's
President, or his designee, the Employee shall not be entitled to compensation
for (i) more than forty (40) hours
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per week, (ii) any time in excess of the Estimated Project Hours for a
particular project, or (iii) his time in commuting or otherwise traveling from
home or the location of his other business pursuits to and from the Company's
offices or to such other locations at which he performs services on behalf of
the Company. The Company shall pay the Employee for services rendered hereunder
within five (5) business days following receipt of the aforementioned
documentation, which payments shall be net of deduction for FICA and Medicare.
The Company shall provide the Employee with benefits of $20,000 per annum
(before deduction for the Company's contribution to FICA and Medicare and
recomputed as if paid on a pre-tax basis using a marginal tax rate of 35%,
except for such benefits as are made available to employees generally),
including but not limited to an automobile allowance and health insurance.
During the Employment Term, the Company shall reimburse the Employee for all
reasonable and necessary business expenses incurred and paid directly by him in
the performance of his duties hereunder, upon submission to the Company of
reasonably detailed expense reports and appropriate vouchers and/or receipts
prepared in accordance with the applicable provisions and regulations of the
Internal Revenue Code; it being understood that unless specifically authorized
in writing, in advance by the President or his designee, of the Company, the
only expenses which will be reimbursed to Employee hereunder will be for travel,
lodging and meals.
5. Termination. Notwithstanding any provision of this Agreement to the
contrary, Employee's employment hereunder shall be subject to earlier
termination as follows:
(a) Death. This Agreement shall terminate upon the death of Employee.
(b) Cause. The Company may terminate Employee's employment hereunder
for "cause" (as hereinafter defined) immediately upon written notice of
termination
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to the Employee. For purposes of this Paragraph 5(b), "cause" means: (i) willful
and gross misconduct with respect to the business or affairs of the Company;
(ii) willful and gross neglect of duties or willful and gross failure to act
which adversely affects the business or affairs of the Company; (iii) gross
negligence in the performance of the Employee's duties hereunder; (iv) fraud,
embezzlement or criminal conduct (other than misdemeanors and motor vehicle
related incidents), whether or not directed against the Company; or (v) failure
of Employee to cure or remedy any alleged violation of Employee's obligations
under Paragraphs 6, 7, 8 or 9 of this Agreement after ten (10) days prior
written notice from the Company.
(c) Termination by Company. The Company may terminate this Agreement
at any time after December 31, 1996 upon not less than thirty (30) days prior
written notice to Employee.
(d) Termination by Employee. The Employee may terminate this Agreement
at any time after December 31, 1996 upon not less than thirty (30) days prior
written notice to the Company.
(e) Termination of Employee's Right to Compensation. Except as
otherwise specifically provided herein or as accrued for services performed
though the date of termination, all of Employee's rights to compensation
hereunder shall cease to exist effective upon the date of termination.
6. Developments. The Employee agrees promptly to disclose in writing to the
Company any invention or discovery made by him during his employment with the
Company, whether during or after working hours, that relates to (i) any
disposable medical devices for drug delivery, including but not limited to
hypodermic needles, (ii) inventions developed for the
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Company through projects participated in by Employee and (iii) processes,
including equipment used to produce items covered by clauses (i) and (ii) (the
items referred to in clauses (i), (ii) and (iii) being hereinafter referred to
collectively as "Covered Inventions"), and such inventions and discoveries shall
be the Company's sole property. Upon the Company's request, whether during or
after the term of his employment, Employee shall execute and assign to the
Company all applications for letters patent and copyrights of the United States
and such foreign countries as the Company may designate relating to Covered
Inventions, and Employee shall execute and deliver to the Company such other
instruments as the Company deems necessary to vest in the Company the sole
ownership of all exclusive rights in and to such inventions and discoveries, as
well as the patents and/or copyrights. If services in connection with
applications for patents and/or copyrights are performed by Employee at the
Company's request after the termination of his employment, the Company shall pay
him reasonable compensation for such services rendered after termination of this
Agreement.
7. Non-Competition. During the Employment Term and for a period of twelve
(12) months after the termination of this Agreement, however occasioned,
Employee shall not within the United States, Canada, Mexico or Japan, directly
or indirectly, as principal, agent, stockholder, joint venturer, investor,
employee, consultant, officer, director, partner, adviser, guarantor or in any
other capacity, provide services or advice relating to, or compete with or
engage in, the design, manufacture, marketing, sale or distribution of
hypodermic syringes or other disposable medical devices (other than for or on
behalf of the Company), or own or control any interest in any entity which is so
engaged (other than the Company).
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8. Non-Solicitation. The Employee agrees that he will not during the term
of this Agreement and for a period of one (1) year following the termination of
his employment with the Company for any reason, directly or indirectly solicit
or contact any employee of the Company with a view to encouraging such employee
to leave the employ of the Company for the purpose of being hired by him, or any
employer affiliated with him, or any competitor of the Company.
9. Confidentiality. Executive agrees that he will not, during the term of
this Agreement and thereafter, use or disclose to any individual, firm,
corporation, partnership, business trust, or other business entity (any of the
foregoing being hereinafter referred to as a "Person") any confidential or
proprietary information of the Company for any reason or purpose whatsoever, nor
shall he make use of any such confidential or proprietary information for his
own purpose or for the benefit of any Person other than the Company, including
without limitation, any and all patents (issued or pending), designs, drawings,
blueprints, manufacturing processes, specifications, test data, graphics, charts
and all other technical information , currently in existence or subsequently
developed, relating to Covered Inventions, information relating to the Company's
research and development activities and marketing strategy, or information
relating to the Company's costs, pricing practices, customer lists or financial
data; except that nothing herein shall be construed to prohibit him from
complying with legal process or using or disclosing such information if it shall
have become public knowledge other than by or as a result of disclosure by a
Person not having a right to make such disclosure.
10. Specific Performance. Employee acknowledges that the covenants set
forth in Paragraphs 6, 7, 8 and 9 are reasonable and necessary for the
protection of the Company and
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that his violation of any of the provisions of Paragraphs 6, 7, 8 or 9 shall
cause the Company immediate and irreparable harm and, agrees that in such event,
an injunction restraining him from such violation or threatened violations may
be entered against him in addition to any other remedy available to the Company.
Employee waives any right which he may otherwise have to assert in any such
proceeding that the Company has an adequate remedy at law.
11. Assignment. This Agreement shall be binding and inure to the benefit of
the Company, its successors and permitted assigns and to Employee, and his heirs
and personal representatives. However, neither this Agreement nor any of the
rights of the parties hereunder may be transferred or assigned by either party
hereto, except that if the Company merges or consolidates with or into, or sells
or otherwise transfers substantially all its assets to, another corporation
which assumes the Company's obligations under this Agreement, the Company may
assign its rights hereunder to that corporation. Any other attempted transfer or
assignment in violation of this Paragraph shall be void. Since this is a
contract for personal services, only Employee is deemed capable of performing
hereunder.
12. Waiver. The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver thereof
or deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. Any waiver of any breach of any
provision of this Agreement shall not constitute a waiver of any other breach of
such provision or any other provision hereof.
13. Notices. Any demand, notice or other communication under this Agreement
shall be in writing and shall be deemed duly given, and received by the
addressee at the address stated above upon receipt, duly evidenced if (i) mailed
by certified or registered mail, return
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receipt requested, with postage prepaid (ii) deposited with a recognized
overnight courier such as Federal Express, UPS or Express Mail, (iii) by hand
delivery, or (iv) upon the receipt of actual written notice, or at such other
address as may be specified by a party in a written notice delivered in
accordance with the provisions of this Paragraph 13.
14. Entire Agreement. This Agreement constitutes the entire agreement
between the parties as of the date hereof with respect to Employee's employment
by the Company, superseding all prior or contemporaneous understandings or
agreements, oral or written. This Agreement may not be modified or amended
except by subsequent written agreement of the parties which specifically states
that it is intended to be a modification, amendment or supplement to this
Agreement, and is signed by all of the parties hereto. No course of dealing or
custom shall be referred to as modifying any of the terms and conditions of this
Agreement.
15. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York applicable to contracts made
and to be performed wholly within that State, and any action, suit or proceeding
which shall be permitted by this Agreement, or by action of law, shall be
commenced in any court having jurisdiction in New York County, or in the United
States District Court for the Southern District of New York, and the parties
hereto hereby waive any objection to jurisdiction or venue in any such action,
suit or proceeding commenced in such courts.
16. Arbitration. Except as specifically provided in Paragraphs 7, 8, 9 and
10 of this Agreement, any and all claims, disputes and other matters in question
with respect to, arising out of, under or in connection with this Agreement,
including without limitation, the validity, interpretation, performance and
breach hereof, or the rights and privileges provided by, or
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responsibilities and obligations under this Agreement, shall be finally decided
by arbitration in the City of New York before three (3) arbitrators in
accordance with the Rules of the American Arbitration Association then in
effect, unless the parties mutually agree otherwise. This Agreement to arbitrate
shall be specifically enforceable under the prevailing arbitration law. The
award rendered by the arbitrators shall be final, and judgment may be entered
upon it in accordance with applicable law in any court having jurisdiction
thereof. The parties agree that the arbitrators will have full authority to
award the costs of the arbitration, including attorneys' fees.
17. Severability. In the event any provision of this Agreement is held
invalid or unenforceable by any court of competent jurisdiction, such holding
shall not invalidate or render unenforceable any other provision hereof. Such
invalid or unenforceable provision shall be amended, if possible, in order to
accomplish the purposes of this Agreement.
18. Headings. The headings of the various sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed to be a
part of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first above written.
UNIVEC, INC.
By:/s/ Xxxx Xxxxxxxxxx
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Xxxx Xxxxxxxxxx
Chief Executive Officer
and President
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/s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx
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