EXHIBIT 10(e)(i)
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EMPLOYMENT AGREEMENT
WHEREAS, VIROLOGIX CORPORATION, a Delaware corporation having offices at
000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 and XX. XXXXXXX X. XXXX, c/o
University College Dublin, Department of Microbiology, Xxxxxxxx, Xxxxxx 0,
Xxxxxxx (referred to as "Hall") have entered into a consulting agreement dated
as of January 1, 1996, as amended (the "Consulting Agreement").
WHEREAS, the Company has entered into a License and Research Support
Agreement, dated as of February 27, 1996 ("the "License Agreement") with The
Rockefeller University, 0000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000 ("Rockefeller"),
with whom Hall was formerly affiliated, covering certain technology relating to
vaccines and therapeutics, and the development of animal models for use in
pharmaceutical discovery.
WHEREAS, in connection with the Company's License Agreement with
Rockefeller and the Company's support of scientific research engaged by
University College Dublin ("University College") thereunder, the Company desires
to retain Hall, and Hall desires to be retained, as Chief Scientific Officer.
NOW, THEREFORE, the parties hereby further supersede the Consulting
Agreement with this Employment Agreement (the "Agreement").
1. Duties. The Company hereby retains Hall as its Chief Scientific
Officer, to assist in the administration of the License Agreement and in the
performance of scientific research thereunder in research laboratories at
University College (the "Services"), and Hall hereby accepts such retention and
shall perform for the Company the duties described herein, faithfully and to the
best of his ability. In this regard, Hall shall devote an average of 19% of his
business time and attention to matters on which the Company shall request his
services, subject to the direction of senior management of the Company.
2. Term. Hall's is hereby retained through December 31, 1997 (the
"Initial Term"), and his term hereunder shall be automatically renewed for up to
three additional one (1) year periods (each period a "Renewal Term"; together
with the Initial Term, the "Period") unless either party notifies the other in
writing of its intention not to so renew this Agreement no less than 90 days
prior to the expiration of the Initial Term or any Renewal Term.
3. Place of Performance. In connection with rendering Services to
the Company, Hall shall be based in Dublin, Ireland, where University College's
research laboratories are located. Hall acknowledges that the Company may
require that from time to time Hall travel on behalf of the Company in
connection with scientific conferences or meetings with potential strategic or
financial partners or advisors, or in connection with potential financing
transactions, and the Company shall give Hall reasonable prior notice of such
requirements and an approximation of the number of days that Hall's services
will be required.
4. Compensation and Expenses.
(a) In consideration for Hall's performing the Services for the
Company, the Company shall pay to Hall a base salary of $75,000 per year,
payable quarterly in advance.
(b) In addition to his base salary, Hall may also be paid annual
bonuses and other compensation, including stock options, as may be determined by
the Board of Directors of the Company.
(c) The Company will reimburse Hall for actual out-of-pocket
expenses incurred in connection with the performance of the Services, provided
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that Hall submits receipts or other expense records to the Company in accordance
with the Company's general reimbursement policy then in effect.
5. Employee Benefit Plans. During the Term, Hall shall be entitled
to the employee benefits, including vacation, health and other insurance
benefits made available by the Company to any other employee of the Company.
6. Successors and Assigns. This Agreement is binding upon and inures
to the benefit of the Company and its affiliates, successors and assigns and is
binding upon and inures to the benefit of Hall and his successors and assigns;
provided that in no event shall Hall's obligations to perform the Services be
delegated or transferred by Hall without the prior written consent of the
Company.
7. Termination.
(a) This Agreement may only be terminated by the Company for Cause,
or upon Hall's death or Disability.
(b) The Company shall have "Cause" to terminate this Agreement upon
(i) Hall's conviction of, or plea of "no contest" to, any felony; or (ii) any
material breach by Hall of any provision of this Agreement.
(c) "Disability" shall mean Hall's incapacity due to physical or
mental illness that results in his being unable to substantially perform his
duties hereunder for six consecutive months (or for six months out of any nine
month period). The Company shall give Hall written notice of termination which
shall take effect thirty (30) days after the date it is sent to Hall unless Hall
shall have returned to the performance of his duties hereunder during such
thirty (30) day period (whereupon such notice shall become void).
(d) If the Company ends the Term for Cause or Disability, or if Hall
resigns as an employee of the Company, or if Hall dies, then the Company shall
have no obligation to pay Hall any amount, whether for salary, benefits,
bonuses, or other compensation or expense reimbursements of any kind, accruing
after the end of the Term, and such rights shall, except as otherwise required
by law, be forfeited immediately upon the end of the Term.
8. Inventions, Patents and Technology. Hall shall promptly and fully
disclose to the Company any and all inventions, methods, improvements,
discoveries, original works of authorship, trade secrets, or other intellectual
property conceived, developed or reduced to practice by Hall or any of his
employees, consultants or research assistants, during the performance of the
Services hereunder or derived from Confidential Information, as hereinafter
defined, including without limitation, as relates to the Core Technology, as
defined in the License Agreement (collectively, "Work Product"). Hall shall
treat all Work Product as the Confidential Information of the Company. Hall
agrees and does hereby assign to the Company and its successors and assigns,
without further consideration, his entire right, title and interest in and to
all Work Product developed during the performance of Services hereunder or
derived from any Confidential Information, whether or not patentable or
copyrightable, including all Work Product developed at University College,
subject only to the provisions of the License Agreement and Rockefeller's rights
thereunder and any other existing written agreement Hall may have with
Rockefeller. Hall further agrees to execute all applications for patents and/or
copyrights, domestic or foreign, assignments and other papers necessary to
secure and enforce rights relating to the Work Product. The parties acknowledge
that all original works of authorship that are made by Hall within the scope of
the Services and that may be protected by copyrighted are "works made for hire,"
as that time is defined in the United States Copyright Act (17 USC Section 101).
9. Covenants.
(a) Hall hereby recognizes that the value of all trade secrets and
other proprietary data and all other information of the Company not in the
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public domain ("Confidential Information") disclosed by the Company in the
course of performing the Services with the Company is attributable substantially
to the fact that such Confidential Information is maintained by the Company in
the strict confidentiality and secrecy and would be unavailable to others
without the expenditure of substantial time, effort or money. Hall, therefore,
covenants and agrees to keep strictly secret and confidential the Confidential
Information of the Company in accordance with the following provisions of this
Section 9(a), subject only to the provisions of the License Agreement and
Rockefeller's rights thereunder. Hall covenants and agrees to safeguard the
Confidential Information of the Company disclosed to or otherwise acquired by
Hall in the course of performing the Services and to prevent the disclosure or
other dissemination thereof to any third party, or the use thereof by any
competitor. In implementation of the foregoing, Hall shall not disclose any of
the Confidential Information of the Company to any employee, consultant or
research assistant except those for whom disclosure is necessary for the
effective performance of their responsibilities as employees, consultants or
research assistants and, in each case, only to the extent required for such
effective performance of responsibilities by employees, consultants or research
assistants to whom such disclosure is made pursuant to this Section 9(a). The
obligations undertaken by Hall pursuant to this Section 9(a) shall not apply to
any Confidential Information which hereafter shall become published or otherwise
generally available to the public, except in consequence of a willful or
negligent act or admission by Hall, or his employees, consultants or research
assistants, in contravention of the obligations hereinabove set forth in this
Section 9(a), and such obligations shall, as so limited, survive expiration or
termination of this Agreement.
(b) Hall shall not, during or after the term of this Agreement, make
any statement or do any act which will disparage or injure the goodwill or
reputation of the Company.
(c) Hall acknowledges and agrees that (i) the principal business of
the Company is development of the Core Technology, as defined in the License
Agreement; (ii) he is one of the limited number of persons who has developed
such business; (iii) the business of the Company is conducted primarily
throughout the United States but also internationally; (iv) his work for the
Company has included the identification and solicitation of present and
prospective strategic partners; (v) his work for the Company has provided him,
and his services for the Company will continue to provide him, with confidential
information. To induce the Company to enter into this Agreement, Hall covenants
and agrees that:
(i) From the date hereof and until the date that is two
(2) years from the expiration of the Period (the "Restricted Period"), Hall
shall not unless with written consent of the Company:
(A) engage in the business of research and development of the Core
Technology, or, (I) during the Period, engage in the business of research
and development of any other products or processes in which the Company is
engaged during the term of this Agreement or in any other business
presently being conducted or which may from time to time be conducted by
the Company, or, (II) during the two year period after the end of the
Period, engage in the business of research and development of any other
products or processes in which the Company had been engaged at the end of
the Period or for the six (6) months prior thereto or in any other
business conducted by the Company at the end of the Period or for the six
(6) months prior thereto (collectively the "Prohibited Activity") in the
United States or elsewhere for his own account;
(B) directly or indirectly, enter the employ of, or render any services
to, any individual, corporation, partnership or other business entity (a
"Person") engaged in any Prohibited Activity in the United States or
elsewhere; or
(C) become interested in any Person engaged in any Prohibited Activity
in the United States, directly or indirectly, as an individual, partner,
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shareholder, officer, director, principal, agent, employee, trustee,
consultant or in any other relationship or capacity; provided, however,
that Hall may own directly or indirectly, solely as an investment,
securities of any Person which are traded on any national securities
exchange if Hall (x) is not a controlling person of, or a member of a
group which controls, such person or (y) does not, directly or indirectly,
own 5% or more of any class of securities of such person;
(ii) directly or indirectly hire, engage or retain any person
which at any time during the Restricted Period or for the two year period prior
thereto was a supplier, client or customer of the Company, or directly or
indirectly solicit, entice or induce any such person to become, a supplier,
client or customer of any other person engaged in any Prohibited Activity; or
(iii) directly or indirectly hire, employ or retain any person
who at any time was an employee of the Company or directly or indirectly
solicit, entice, induce or encourage any such person to become employed by any
other person.
(d) The restrictions of Section 9(c) shall continue to apply in the
event that the Hall elects not to renew this Agreement in accordance with the
provisions of Section 2.
(e) Notwithstanding the foregoing, the restrictions of Section 9(c)
shall not apply in the event Hall is terminated without Cause by the Company or
if the rights to the Core Technology revert back to The Rockefeller University.
(f) Hall hereby acknowledges that the covenants and agreements
contained in Sections 8 and 9 (the "Restrictive Covenants") are reasonable and
valid in all respects and that the Company is entering into this Agreement,
inter alia, on such acknowledgment. If Hall breaches, or threatens to commit a
breach, of any of the Restrictive Covenants, the Company shall have the
following rights and remedies, each of which rights and remedies shall be
independent of the other and severally enforceable, and all of which rights and
remedies shall be in addition to, and not in lieu of, any other rights and
remedies available to the Company under law or in equity: (i) the right and
remedy to have the Restrictive Covenants specifically enforced by any court
having equity jurisdiction, it being acknowledged and agreed that any such
breach or threatened breach will cause irreparable injury to the Company and
that money damages will not provide an adequate remedy to the Company; (ii) the
right and remedy to require Hall to account for and pay over to the Company all
compensation, profits, monies, accruals, increments or other benefits
(collectively, "Benefits") derived or received by Hall as the result of any
transactions constituting a breach of any of the Restrictive Covenants, and Hall
shall account for and pay over such Benefits to the Company; (iii) if any court
determines that any of the Restrictive Covenants, or any part thereof, is
invalid or unenforceable, the remainder of the Restrictive Covenants shall not
thereby be affected and shall be given full effect, without regard to the
invalid portions; and (iv) if any court construes any of the Restrictive
Covenants, or any part thereof, to be unenforceable because of the duration of
such provision or the area covered thereby, such court shall have the power to
reduce the duration or area of such provision and, in its reduced form, such
provision shall then be enforceable and shall be enforced.
(g) The parties intend to and hereby confer jurisdiction to enforce
the Restrictive Covenants upon the courts of any jurisdiction within the
geographical scope of such Covenants. If the courts of any one or more such
jurisdictions hold the Restrictive Covenants wholly unenforceable by reason of
the breadth of such scope or otherwise, it is the intention of the parties that
such determination not bar or in any way affect the Company's right to the
relief provided above in the courts of any other jurisdiction, within the
geographical scope of such Covenants, as to breaches of such Covenants in such
other respective jurisdictions such Covenants as they relate to each
jurisdiction being, for this purpose, severable into diverse and independent
covenants.
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00. Representations and Warranties. Hall represents and warrants
that he is not under any obligation, contractual or otherwise, to Rockefeller,
University College, or to any other person, which would prevent his entering
into this Agreement or prevent, impede or hinder his fully faithfully performing
any of his duties and services hereunder.
11. Notice. For the purpose of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given (i) when delivered, if personally delivered, (ii) when sent
by facsimile transmission, when receipt therefor has been duly received, or
(iii) when mailed by United States registered mail, return receipt requested,
postage prepaid, or by recognized overnight courier, addressed as follows:
If, to Hall:
Xx. Xxxxxxx X. Xxxx
c/o University College Dublin
Department of Microbiology
Belfield, Xxxxxx 0
Xxxxxxx
Fax: 000-000-0-000-0000
If, to the Company:
Virologix Corporation
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: President
Fax: 000-000-0000
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
12. Miscellaneous. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by authorized officers of each party. No waiver by either
party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time. No agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party which are not set forth expressly in this Agreement. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the internal laws of the State of New York. Any controversy arising under or
in relation to this Agreement shall be settled by binding arbitration in New
York, New York in accordance with the laws of the State of New York and the
rules of the American Arbitration Association.
13. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
14. Severability. If in any jurisdiction, any provision of this
Agreement or its application to any party or circumstance is restricted,
prohibited or unenforceable, such provision shall, as to such jurisdiction, be
ineffective only to the extent of such restriction, prohibition or
unenforceability, without invalidating the remaining provisions hereof and
without affecting the validity or enforceability of such provision in any other
jurisdiction or its application to other parties or circumstances. In addition,
if any one or more of the provisions contained in this Agreement shall for any
reason in any jurisdiction be held to be excessively broad as to time, duration,
geographical scope, activity or subject, it shall be construed, by limiting and
reduction it, so as to be enforceable to the extent compatible with the
applicable law of such jurisdiction as it shall then appear.
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IN WITNESS WHEREOF, this Employment Agreement has been executed by the
Company and Hall as of February 12, 1997.
VIROLOGIX CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Authorized Officer
/s/ Xxxxxxx X. Xxxx
---------------------------
Xx. Xxxxxxx X. Xxxx
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