Exhibit 10.11
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("AGREEMENT") is made effective as of the
15th day of November, 1999, by and between Photogen, Inc., a Tennessee
corporation ("COMPANY"), and Xxx Xxxxxxxxx, MEd. ("EMPLOYEE").
RECITALS
A. Employee has substantial experience in the conduct of human
clinical trials utilizing images as surrogate endpoints; and
B. The Company desires to retain Employee and Employee hereby agrees to
serve in such capacity to assist it in various research projects, developing
product inventions and related matters, as hereinafter provided; subject to the
terms of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises herein and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties agree as follows:
1. DEFINITIONS. The following terms have the meanings set forth
below:
(a) "COMPANY" means all affiliates of Photogen, Inc., including
but not limited to Photogen Technologies, Inc. and Photogen
Newco Ltd., except in the context of the entity directly
employing Employee which shall mean Photogen, Inc.
(b) "COMPETITIVE BUSINESS" means engaging in the research,
development, sale, lease, marketing, financing or distribution
of technology, products or services similar to or competitive
with the Company's products or services in the Field anywhere
in the world.
(c) "CONFIDENTIALITY AGREEMENT" means that certain Employee
Confidentiality and Inventions Agreement of even date herewith
between the Employee and the Company attached hereto as
Exhibit 4 and incorporated herein in its entirety by
reference.
(d) "CONFIDENTIAL INFORMATION" has that meaning set forth in the
Confidentiality Agreement.
(e) "FIELD" means the use of electromagnetic energy (including
light generated by ultra fast lasers or other sources, x-rays
and other sources of radiation), alone or in combination with
photoactive compounds or targeting agents, to treat, diagnose
or image human or animal tissue and/or disease.
(f) "PATENTS" means patents, patent applications, and patent
disclosures, together with all reissuances, continuations,
continuations-in-part, revisions, extensions, and
reexaminations thereof, and all improvements and inventions
related thereto.
2. EMPLOYMENT SERVICES.
(a) During the Term of this Agreement, Employee shall use his best
efforts to and shall devote 100% of his working time to
competently and faithfully promote the Company's interests,
develop the Company's products and to perform the following
services (collectively, the "EMPLOYMENT SERVICES"):
(i) assist the Company's Medical Director to plan, implement
and complete, the clinical activities for specific research projects
mutually agreed to between the Company and Employee, including but not
limited to the following: (A) sentinel lymph node mapping, (B) enhanced
radiation therapy through the use of radiosensitizers, (C) photodynamic
therapy of deep tissue cancer, (D) evaluation of hair removal,
psoriasis, and leg ulcer products; (E) new treatments for Barretts
esophagus, and (F) other research projects assigned by the Company
(individually and collectively, "RESEARCH PROJECTS");
(ii) plan, implement and complete clinical trial programs
sufficient to obtain regulatory approval for sentinel node mapping and
diagnostic products;
(iii) negotiate, prepare and monitor clinical contracts;
(iv) lead the implementation of human clinical trials
undertaken by the Company;
(v) assist the Company in obtaining patent or other protection
for any technologies developed by Employee and arising out of his
Employment Services ;
(vi) assist the Company in obtaining licenses to technologies
developed by third parties;
(vii) assist the Company in working with outside clinical
researchers and research organizations; and
(viii) perform such other duties assigned to Employee from
time to time by the Company's Medical Director, the Company's Chief
Executive Officer and/or Board of Directors.
(b) Employee will perform the Employment Services substantially in
the Boston, Massachusetts area. Employee may also be required
to travel from time to time to
-2-
Knoxville, Tennessee and elsewhere as reasonably necessary to
perform the Employment Services.
3. COMPENSATION.
(a) Company shall pay Employee an annual base gross salary as set
forth in Exhibit 1, payable in accordance with normal Company
payroll procedures and subject to deductions and withholdings
required by law or by agreement with Employee. Company will
reimburse Employee for reasonable and necessary business
expenses in accordance with Company's policies.
(b) Concurrently with the execution of this Agreement, Company and
Employee will execute an Incentive Stock Option Award
Agreement ("Award Agreement") providing for the Company to
grant Employee a total of 150,000 options to acquire Company
common stock, pursuant to Company's 1998 Long Term Incentive
Compensation Plan. The options will vest in accordance with
and in all other respects be subject to the provisions of the
Award Agreement.
(c) Employee will be eligible to participate in and receive
benefits provided under Company's insurance and benefit plans
as set forth on Exhibit 1, in accordance with their respective
provisions. Company reserves the right to amend all insurance
and benefit plans at any time as necessary to accomplish
Company's business objectives.
4. COVENANTS AND REPRESENTATIONS. Employee represents and warrants to,
and covenants with, the Company as follows:
(a) During the Term, Employee will render services (similar to the
Employment Services or otherwise) in the Field only to the
Company and will not enter into any other agreement,
arrangement, understanding, or other relationship pursuant to
which Employee is obligated to render advice and services in
the Field to any third party.
(b) Employee is under no contractual or other obligation or
restriction which is inconsistent with Employee's obligations
under this Agreement or the performance of the Employment
Services. Employee's pre-existing relationships with
commercial, educational or other research institutions are
listed in Exhibit 2 attached hereto. Employee will terminate
all employment, consulting and similar affiliations with
commercial entities in the Field.
(c) Employee has set forth on Exhibit 3 attached hereto, a
complete list of any patents or patent applications in the
Field of which Employee is the joint or sole inventor.
-3-
5. CONFIDENTIALITY.
(a) The Company has developed and will develop Confidential
Information over a substantial period of time and at
substantial expense. The Confidential Information is of great
importance to the Company's business. During the Term,
Employee may develop, become aware of, or have access to the
Confidential Information. In consideration of the foregoing
and as an inducement for Company to extend employment to
Employee hereunder, Employee has executed the Confidentiality
Agreement and Employee acknowledges and agrees the Company is
and shall at all times remain the sole owner of the
Confidential Information.
(b) During the Term and thereafter, Employee shall exercise all
commercially reasonable precautions to physically protect the
integrity and confidentiality of the Confidential Information.
Employee will not remove any Confidential Information or
copies thereof from the Company's premises or the other places
Employee is authorized to perform the Employment Services to
the extent necessary to perform such Employment Services, and
then only with the Company's prior written consent.
(c) Employee will comply with Company's policies concerning
publication with respect to his work for the Company.
6. NONCOMPETITION; NONSOLICITATION.
(a) During the Term, and for 12 months after termination of the
Term, the Employee agrees not to, directly or indirectly
through any other person or entity, (i) own, manage, control,
participate in, consult with, be employed by, render services
for, any person or entity engaged in a Competitive Business or
in any manner or in any capacity (except as owner of 2% or
less of stock of a publicly registered and traded entity)
engage in any Competitive Business, (ii) solicit, induce or
attempt to influence any other person or entity to engage in
any Competitive Business or to curtail or cease any business
or business relationship with the Company, its affiliates,
employees or independent contractors, (iii) solicit any other
employee or independent contractor to terminate any employment
or engagement with the Company and engage in a Competitive
Business, or (iv) disparage the Company, its affiliates,
employees, independent contractors or their services or
products.
(b) The Company consents to Employee performing services for the
entities listed in paragraph 4(b), provided that (i) Employee
keeps the Company advised on a current basis of his activities
for such other entities (or, to the extent Employee is unable
to keep the Company advised because of a confidentiality
agreement with such other entity, Employee will disclose as
much information as possible without
-4-
breaching the confidentiality agreement and seek the other
entity's permission to make further limited disclosure to the
Company), (ii) Employee strictly observes the confidentiality
obligations in paragraph 7, above, and (iii) Employee uses his
best efforts to assure that those other entities do not obtain
any interest in Developments or the Company's Patents. Upon
written notice by one party hereto to the other of a conflict
situation, Employee and the Company will negotiate in good
faith for a period of 30 days (or longer by mutual agreement)
to modify Employee's responsibilities under this Agreement or
to develop other protections and procedures to minimize the
possibility of competitive conflict, the disclosure of
Confidential Information and uncertainty as to the Company's
ownership of Developments or the Company's Patents. If
Employee and the Company are unable to agree on such
modifications, either of them may terminate this Agreement
upon written notice to the other.
7. TERM AND TERMINATION.
(a) Unless terminated earlier pursuant to paragraph 7(b) below,
this Agreement shall be in effect for an initial term of four
years beginning on the effective date hereof (the "INITIAL
TERM"). This Agreement may be renewed for successive renewal
terms lasting for one year (the "RENEWAL TERMS") upon mutual
written agreement of the parties. The Initial Term and any
subsequent Renewal Terms are collectively referred to as the
"TERM."
(b) This Agreement and Employee's employment by the Company may be
terminated before the expiration of any Term as follows:
(i) By the Company in the event:
(1) Employee commits a material breach of this
Agreement where such breach, if curable, is
not remedied to the Company's reasonable
satisfaction within thirty (30) days after
written notice to Employee (and termination
shall be effective as of the end of such
30-day period); or
(2) Employee is convicted for committing an act
of fraud, embezzlement, theft or another act
constituting a felony (and termination shall
be effective upon written notice to
Employee); or
(3) Employee dies or becomes mentally or
physically disabled such that the Employee
cannot, in the opinion of an independent
physician selected by the Company, perform
the Employment Services (with reasonable
accommodation to the extent required by law)
for a period of 12 months (and termination
shall be effective
-5-
on the date Employee dies or upon written
notice the Company has determined he is
disabled under the foregoing criteria);
in which case: (A) the Company shall pay Employee his
base salary and any other amounts required by
applicable law to be paid through the effective date
of termination but the Company shall have no other
obligations under this Agreement as of the effective
date of the termination, and (B) the Company shall
permit the Employee or his beneficiary to exercise
vested options to acquire Company stock in accordance
with and subject to the Award Agreement.
(ii) By the Company in the event the Company is dissatisfied
in its reasonable judgment with the Employee's performance of the
Employment Services or the results thereof which, if curable, are not
remedied to the Company's reasonable satisfaction within forty-five
(45) days after specific written notice thereof has been delivered to
the Employee (and termination shall be effective as of the end of such
45-day period); in which case: (A) the Company shall pay Employee his
base salary and any other amounts required by applicable law to be paid
through the effective date of termination but the Company shall have no
other obligations under this Agreement as of the effective date of the
termination, and (B) the Company shall permit the Employee or his
beneficiary to exercise vested options to acquire Company stock in
accordance with and subject to the Award Agreement.
(iii) By the Employee, provided the Employee shall give the
Company at least 60 days prior written notice thereof (and termination
shall be effective as of the end of such 60-day or longer period); in
which case (A) the Company shall pay Employee his base salary and any
other amounts required by applicable law to be paid through the
effective date of termination but the Company shall have no other
obligations under this Agreement as of the effective date of the
termination, and (B) the Company shall permit the Employee to exercise
vested options to acquire Company stock in accordance with and subject
to the Award Agreement.
(c) Notwithstanding anything to the contrary, the obligations
under this Agreement which by their terms survive termination,
including, without limitation, the applicable Confidentiality,
Noncompetition, and Nonsolicitation provisions of this
Agreement as set forth in paragraphs 5 and 6 hereof and the
Confidentiality Agreement, shall survive termination; and the
representations and warranties, including without limitation
the provisions of paragraph hereof, shall survive termination.
Upon termination, and in any case upon the Company's request,
Employee shall return immediately to the Company all
Confidential Information and copies thereof and not retain any
copies thereof.
-6-
8. MISCELLANEOUS.
(a) This Agreement and the rights and obligations hereunder may
not be assigned, delegated or transferred by Employee without
the prior written consent of the Company. The Company may
assign this Agreement to an affiliate of the Company or to an
acquirer or successor in connection with the merger,
consolidation, or sale of all or substantially all of its
assets, and this Agreement shall inure to the benefit of the
Company's assignee.
(b) This Agreement may not be amended or modified, or any
provision hereof waived, except by a written instrument duly
signed by both parties contemporaneously or after the date of
this Agreement. This Agreement (together with the Award
Agreement and the Agreement regarding certain conditions)
constitutes the entire agreement between the parties
concerning the subject matter hereof and thereof, and
supersedes all prior written or oral negotiations,
representations and agreements.
(c) The Employee acknowledges that a breach of paragraphs 5, 6 or
the Confidentiality Agreement may cause the Company and its
affiliates irreparable harm. Accordingly, in the event of a
breach or threatened breach by the Employee of any of the
provisions of paragraphs 5, 6 or the Confidentiality
Agreement, the Employee agrees that the Company may be
entitled to injunctive relief restraining the Employee and any
individual or entity from participating in such breach or
threatened breach. The Employee waives any provision of law
requiring the Company to post a bond for any such injunctive
relief. Nothing herein shall be construed as prohibiting the
Company from pursuing any other remedies available at law or
in equity for any breach or threatened breach of this
Agreement.
(d) Any waiver of a breach of any provision of this Agreement
shall not operate as a waiver of any other breach of such
provision or any other provision, nor shall any failure to
enforce any provision hereof operate as a waiver of such
provision or of any other provision.
(e) If any provision of this Agreement is deemed in a final order
by a court of competent jurisdiction to be unenforceable or
invalid, the enforceability and validity of all other
provisions shall not be affected and that court shall modify
the unenforceable or invalid provision to the extent necessary
to render it enforceable and valid and that provision shall be
enforced as modified. Employee agrees that the time period and
scope of the covenants in paragraphs 6, 7 and 8 of this
Agreement are reasonable and appropriate under the
circumstances of the Company's business.
-7-
IN WITNESS WHEREOF, Employee and the President of the Company
have signed this Agreement as of the Effective Date.
COMPANY EMPLOYEE
Photogen, Inc.
By: /S/ XXXX X. XXXXXX By: /S/ XXX XXXXXXXXX
Xxxx X. Xxxxxx, President Xxx Xxxxxxxxx, MEd.
Address: 0000 Xxx Xxxxx Xxxxxxx Address: 000 Xxxxxx Xxxx Xx.
Xxxxx X Xxxxxxx, XX 00000
Xxxxxxxxx, XX 00000
Telephone: 423/000-0000 Telephone:_______________
Telecopier: 423/769-4013 Telecopier:______________
E-mail: xxxxxx@xxxxxxxx.xxx E-mail: _________________
-8-
EXHIBIT 1
TITLE AND COMPENSATION
Title: Vice President of Clinical Operations
Gross Salary: Starting salary of $125,000 per year. Salary subject
to periodic review.
Bonus/Options: Bonus will be available and paid at the discretion
of the Board or its Compensation Committee.
Benefits: Medical/Dental/Term Life Insurance
Long term disability insurance
Paid vacation (4 weeks, 9 Company holidays and 2
floating days)
Benefit programs will be developed and
implemented as approved by the Board 401(k) salary
deferral plan (non-contributory by Company
EXHIBIT 2
EMPLOYEE'S PREEXISTING RELATIONSHIPS
SUBJECT TO WRITTEN
AGREEMENT
(Y OR N)
IF "YES" ATTACH A
ENTITY SUMMARY OF RELATIONSHIP COPY OF AGREEMENT
(REDACTED AS
NECESSARY)
------------------------------------------------------------------------------
NF Foundation Board Member N
------------------------------------------------------------------------------
WorldCare Inc. Past COO N
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
-1-
EXHIBIT 3
EMPLOYEE'S INTELLECTUAL PROPERTY
DESCRIPTION STATUS
------------------------------------------------------------------------------
[List any patents or patent applications]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
EXHIBIT 4
See attached Employee Confidentiality and Inventions Agreement.
[PHOTOGEN TECHNOLOGIES, INC. LETTERHEAD]
November 15, 1999
Mr. Xxx Xxxxxxxxx, Ph.D
000 Xxxxxx Xxxx Xx.
Xxxxxxx, XX 00000
RE: EMPLOYEE CONFIDENTIALITY AND INVENTIONS AGREEMENT ("AGREEMENT")
Dear Xx. Xxxxxxxxx:
In the course of your work for Photogen, Inc., its parent
company Photogen Technologies, Inc. or any of their affiliates (collectively,
"Photogen"), you may have access to Photogen's confidential and proprietary
information and/or you may create Developments (defined below). As a condition
to Photogen hiring and employing you (and for other legally sufficient
consideration, the receipt and adequacy of which you acknowledge), you and
Photogen agree as follows:
1. CONFIDENTIAL INFORMATION.
(a) During your employment by Photogen and for a period of three
(3) years following termination of your employment, for any
reason, you will hold in trust, keep confidential and not
disclose, directly or indirectly, to any third parties or make
any use of Confidential Information (defined below) for any
purpose except for the benefit of Photogen in the performance
of your duties. Confidential Information will not be subject
to these restrictions if it becomes generally known to the
public or in the industry without any fault by you or any
other person or entity, or if Photogen ceases to have a
legally protectable interest in it. Upon termination of your
employment (regardless of the reason for termination), you
will immediately return to Photogen all tangible Confidential
Information and any other material made or derived from
Confidential Information, including information stored in
electronic format and handwritten notes, which is in your
possession or which you delivered to others.
(b) "Confidential Information" means any and all information that
has or could have value or utility to Photogen, whether or not
reduced to written or other tangible form and all copies
thereof, relating to Photogen's private or proprietary
matters,
[LOGO]
Xxx Xxxxxxxxx, Ph.D.
November 15, 1999
Page 2
confidential matters or trade secrets. Confidential
Information includes, but is not limited to, the following:
(i) technical information (whether or not subject to patent
registration or protection), such as research and development, methods,
trade secrets, know-how, formulas, compositions, protocols, processes
and techniques, discoveries, machines, inventions, ideas, computer
programs (including software and data used in all such programs),
drawings, specifications;
(ii) except to the extent publicly disclosed by Photogen
without any fault by you or any other person or entity, information
relating to Photogen's patents, patent applications, and patent
disclosures, together with all reissuances, continuations,
continuations-in-part, revisions, extensions, and reexaminations
thereof, and all improvements and inventions related thereto;
(iii) business information, such as information concerning any
products, customers, suppliers, production, developments, costs,
purchasing, pricing, profits, markets, sales, accounts, customers,
financing, acquisitions, strategic alliances or collaborations,
expansions; and
(iv) other information relating to Photogen's business
practices, strategies or policies which are deemed a "trade secret"
under applicable laws.
2. DEVELOPMENTS.
(a) You agree to promptly and fully disclose in writing to
Photogen, Inc.'s President all Developments that are related
to or useful in the business or demonstrably anticipated
business of Photogen, or result from duties assigned to you by
Photogen or from the use of any of Photogen's assets or
facilities. "Developments" means any and all inventions,
discoveries, improvements, know- how, works or other
intellectual property (whether or not subject to registration
with any governmental office) you conceive, reduce to
practice, discover or make, alone or with others, during your
employment and for twelve (12) months after termination
(regardless of the reason for termination).
(b) You hereby assign and transfer to Photogen, Inc. all of your
right, title and interest in and to all Developments. You
agree to sign and deliver to Photogen, Inc. (during and after
employment) other documents Photogen, Inc. considers
[LOGO]
Xxx Xxxxxxxxx, Ph.D.
November 15, 1999
Page 3
necessary or desirable to evidence its ownership of
Developments. All copyrightable works that are Developments,
whether or not works made for hire (as defined in 17 U.S.C.
Section 101), shall be owned by Photogen, Inc. and it may file
and own the same as the author throughout the world. If
Photogen, Inc. is unable for any reason to secure your
signature on any document necessary or desirable to apply for,
prosecute, obtain, or enforce any patent, trademark, service
xxxx, copyright, or other right or protection relating to any
Development, you hereby irrevocably designate and appoint
Photogen, Inc. and each of its duly authorized officers and
agents, as your agent and attorney-in-fact to act for and in
your behalf and stead to execute and file any such document
and to do all other lawfully permitted acts to further the
prosecution, issuance, and enforcement of patents, trademarks,
service marks, copyrights, or other rights or protections with
the same force and effect as if personally executed and
delivered by you. You agree that this power of attorney is
irrevocable and is coupled with an interest and thereby
survives your death or disability.
3. NO CONFLICTS. You represent and warrant to, and agree with Photogen
that:
(a) You are under no contractual or other obligation or
restriction which is inconsistent with your obligations under
this Agreement or the performance of you duties for Photogen.
Without limiting the generality of the foregoing, performing
your duties for Photogen will not cause you to breach any
agreement or other duty which obligates you to keep in
confidence any confidential or proprietary information or
trade secret of any third party or to refrain from competing,
directly or indirectly, with the business of any third party.
(b) Neither you nor any third party has any ownership or other
interest in any idea, invention or other item of intellectual
property that will be used in performing your duties for
Photogen, and all Developments will be free and clear of any
encumbrances or claims of third parties. In performing your
duties for Photogen, you will not disclose to Photogen or use
any confidential or proprietary information or trade secret of
any third party, and you will not interfere with the business
of any third party in any way contrary to applicable law.
(c) In performing your duties for Photogen, you will comply with
applicable laws and regulations.
[LOGO]
Xxx Xxxxxxxxx, Ph.D.
November 15, 1999
Page 4
4. NO EMPLOYMENT RIGHTS. Nothing in this Agreement shall affect your or
Photogen's right to terminate your employment or Photogen's right modify your
terms of employment, or to confer on you any other rights or benefits in
connection with your employment.
5. SEVERABILITY; CHOICE OF LAW; INJUNCTION. If any provision of this
Agreement is deemed by a court of competent jurisdiction to be unenforceable or
invalid, the enforceability and validity of all other provisions shall not be
affected and that court shall modify the unenforceable or invalid provision to
the extent necessary to render it enforceable and valid and that provision shall
be enforced as modified. You agree that the time period and scope of the
covenants in this Agreement are reasonable and appropriate under the
circumstances of Photogen's business. This Agreement shall be governed and
interpreted in accordance with the laws of the State of Tennessee without regard
to its provisions on conflicts of law. Without limiting any other available
remedies at law or in equity, Photogen will be entitled to injunctive relief
restraining any individual or entity from participating in any breach or
threatened breach of this Agreement without having to post a bond or security.
6. MISCELLANEOUS. This Agreement may not be amended or modified except
by a written instrument signed by both parties after the date of this Agreement.
This Agreement may be assigned by Photogen and shall inure to the benefit of
Photogen, its successors and assigns, but may not be assigned or delegated by
you. This Agreement supersedes all prior agreements, negotiations and
representations, written or oral, between the parties with respect to the
subject matter contained herein. Any waiver of any breach of, or failure to
enforce, any of the provisions of this Agreement shall not operate as a waiver
of any other breach or waiver of performance of such provisions or any other
provisions. Your obligations under this Agreement survive termination of your
employment, regardless of the manner or reason for termination.
[LOGO]
Xxx Xxxxxxxxx, Ph.D.
November 15, 1999
Page 5
Please indicate your agreement to the foregoing by signing a
copy of this letter below and returning it to me. I look forward to working with
you.
Very truly yours,
/s/ Xxxx Xxxxxx
Xxxx X. Xxxxxx, President
Accepted and Agreed to as of
November 15, 1999.
By: /S/ XXX XXXXXXXXX
-------------------------
Xxx Xxxxxxxxx, MEd.
