EXHIBIT 10.23
EMPLOYMENT AGREEMENT
This Employment Agreement is entered into as of July 15, 1995,
between Xxxxx X. Xxxxx, Xx. ("Employee") and Epitope, Inc., an Oregon
corporation (the "Company").
1. Services.
1.1 Employment. The Company agrees to employ Employee
as the Vice President of Corporate Communications of the Company, and
Employee hereby accepts such employment in accordance with the terms and
conditions of this Agreement. Employment shall continue until terminated
pursuant to the terms of this Agreement.
1.2 Duties. Employee shall have the position named in
Section 1.1 with such powers and duties appropriate to that office (a) as
may be provided by the bylaws of the Company, (b) as otherwise set forth
on Schedule 1.2 attached to this Agreement (the absence of which shall
indicate that no additional specific duties are so provided for), and (c)
as determined by the president of the Company from time to time. Subject
to the provisions of Section 5.2 hereof, Employee's position and duties
may be changed from time to time during the term of this Agreement,
including that Employee's place of work may be relocated at the sole
discretion of the Company's board of directors.
1.3 Outside Activities. Employee shall obtain the
consent of the board of directors before he engages, either directly or
indirectly, in any other professional or business activities that may
require an appreciable portion of Employee's time or effort to the
detriment of the Company's business. Such consent will not be
unreasonably withheld.
1.4 Direction of Services. Employee shall at all times
discharge his duties in consultation with and under the supervision and
direction of the Company's president, any duly designated representative
of the president, and board of directors.
2. Compensation and Expenses.
2.1 Salary. As compensation for services under this
Agreement, the Company shall pay to Employee a regular salary to be
established each year by the President of the Company. Such salary may
be adjusted from time to time unless the board of directors in its
discretion determines not to do so. Payment shall be made on a bi-weekly
basis, less all amounts required by law to be withheld or deducted, at
such times as shall be determined by the board of directors.
2.2 Additional Employee Benefits. Employee shall also
have the right to receive or participate in (a) any additional benefits,
including, but not limited to, insurance programs, profit sharing or
pension plans, and medical reimbursement plans, which may from time to
time be made available by the Company to corporation officers as a group,
and (b) any additional benefits set forth in Schedule 2.2 attached to
this Agreement (the absence of which shall indicate that no additional
specific benefits are so provided for).
2.3 Expenses. The Company shall reimburse Employee for
all reasonable and necessary expenses incurred in carrying out his duties
under this Agreement. Employee shall present to the Company from time to
time an itemized account of such expenses in such form required by the
Company.
3. Confidential Information.
3.1 Access to Information. Employee acknowledges that
in the course of his employment he will have access to proprietary
information, trade secrets, and other confidential information, that such
information is a valuable asset of the Company, and that its disclosure
or unauthorized use will cause the Company substantial harm. As used in
this Agreement, the term "Confidential Information" means: (a)
proprietary information and trade secrets of the Company and (b)
information designated by the Company as confidential or which Employee
knows or should know is confidential.
3.2 Ownership. Employee acknowledges that all
Confidential Information shall continue to be the exclusive property of
the Company, whether or not prepared in whole or in part by Employee and
whether or not disclosed to Employee or entrusted to his custody in
connection with his employment by the Company.
3.3 Nondisclosure and Nonuse. Unless authorized or
instructed in writing by the Company, or required by legally constituted
authority, Employee will not, except as required in the course of the
Company's business, during or after his employment, disclose to others or
use any Confidential Information, unless and until, and then only to the
extent that, such items become available to the public, other than by his
act or failure to prevent accidental or negligent loss or release to any
unauthorized person of the Confidential Information.
3.4 Return of Confidential Information. Upon request by
the Company during or after his employment, and without request upon
termination of employment pursuant to this Agreement, Employee will
deliver immediately to the Company all Confidential Information; Employee
will thereafter retain no excerpts, notes, photographs, reproductions, or
copies thereof.
3.5 Work Made for Hire. Employee agrees that all
creative work, including without limitation designs, drawings,
specifications, techniques, models, and processes, prepared or originated
by Employee for the Company, or during or within the scope of employment
by the Company, whether or not subject to protection under federal
copyright or other law, constitutes work made for hire, all rights to
which are owned by the Company; and, in any event, Employee assigns to
the Company all rights, title, and interest, whether by way of copyright,
trade secret, or otherwise, in all such work, whether or not subject to
protection by copyright or other law.
3.6 Duration. The obligations set forth in this Section
3 will continue beyond the term of employment of Employee by the Company
and for so long as Employee possesses Confidential Information.
4. Noncompetition.
4.1 Covenant. Employee covenants that Employee will
not, throughout the United States, either individually or as a director,
officer, partner, employee, agent, representative, or consultant with any
business, directly or indirectly during the term of employment and for
one year thereafter:
4.1.1 Engage or prepare to engage in any business
that competes with the Company;
4.1.2 Induce or attempt to induce any person who is
an employee of the Company during the term of this covenant to leave the
employ of the Company; or
4.1.3. Solicit, divert, or accept orders for
products or services that are substantially competitive with the products
or services sold by the Company from any customer of the Company.
4.2 Enforcement. Employee acknowledges and agrees that
the time, scope, and other provisions of this Section 4 have been
specifically negotiated by sophisticated parties with the advice and
consultation of counsel and specifically hereby agrees that such time,
scope, and other provisions are reasonable under the circumstances.
Employee further agrees that if, at any time, despite the express
agreement of the parties hereto, a court of competent jurisdiction holds
that any portion of this Section 4 is unenforceable for any reason, the
maximum restrictions reasonable under the circumstances, as determined by
such court, will be substituted for any such restrictions held
unenforceable.
5. Termination.
5.1 Voluntary Resignation. Employee may terminate his
employment under this Agreement by 90 days' written notice to the
Company.
5.2 Termination by the Company. The Company may
terminate Employee's employment under this Agreement with or without
cause by 90 days' written notice to Employee. If the Company shall
substantially diminish Employee's salary, duties, or title, or shall
relocate the principal place where Employee's duties are performed to a
place outside of the Portland metropolitan area, then Employee may elect
(but shall not be required) to treat such event as a termination without
cause. This Agreement shall terminate immediately upon employee's death.
In the event of the termination of the employment of Employee by the
Company without cause, Employee (a) shall continue to be paid the salary
provided in Section 2.1 for 6 months from the date of notice of
termination of employment in the manner and at the times at which regular
compensation was paid to Employee during the term of his employment under
the Agreement and (b) shall be reimbursed for reasonable expenses to
accommodate relocation back to the East Coast.
6. Remedies. The respective rights and duties of the Company
and Employee under this Agreement are in addition to, and not in lieu of,
those rights and duties afforded to and imposed upon them by law or at
equity. Employee acknowledges that breach of Sections 3, 4.1, or 4.2 of
this Agreement will cause irreparable harm to the Company and agrees to
the entry of a temporary restraining order and permanent injunction by
any court of competent jurisdiction to prevent breach or further breach
of this Agreement. Such remedy shall be in addition to any other remedy
available to the Company at law or in equity.
7. Severability of Provisions. The provisions of this
Agreement are severable, and if any provision hereof is held invalid or
unenforceable, it shall be enforced to the maximum extent permissible,
and the remaining provisions of the Agreement shall continue in full
force and effect.
8. Attorney Fees. In the event a suit or action is filed to
enforce Sections 3, 4.1, or 4.2 of this Agreement, the prevailing party
shall be reimbursed by the other party for all costs and expenses
incurred in connection with the suit or action, including without
limitation reasonable attorney fees at trial or on appeal.
9. Nonwaiver. Failure of the Company at any time to require
performance of any provision of this Agreement shall not limit the right
of the Company to enforce the provision. No provision of this Agreement
or breach thereof may be waived by either party except by a writing
signed by that party. A waiver of any breach of a provision of this
Agreement shall be construed narrowly and shall not be deemed to be a
waiver of any succeeding breach of that provision or a waiver of that
provision itself or of any other provision.
10. Arbitration.
10.1 Claims Covered. All claims or controversies, except
for those excluded by Section 10.2 ("claims"), whether or not arising out
of Employee's employment (or its termination), that Company may have
against the Employee or that Employee may have against the Company or
against its officers, directors, employees or agents, in their capacity
as such or otherwise, shall be resolved as provided in this Section 10.
Claims covered by this Agreement include, but are not limited to, claims
for wages or other compensation due; claims for breach of any contract or
covenant (express or implied); tort claims; claims for discrimination
(including, but not limited to, race, sex, sexual orientation, religion,
national origin, age, marital status, or medical condition, handicap or
disability); claims for benefits (except where an employee benefit or
pension plan specifies that its claims procedure shall culminate in an
arbitration procedure different from this one), and claims for violation
of any federal, state, or other governmental law, statute, regulation, or
ordinance, except as provided in Section 10.2.
10.2 Non-covered Claims. Claims arising out of Sections
3, 4.1, or 4.2 of this Agreement and workers' compensation or
unemployment compensation benefits are not covered by this Agreement.
Non-covered claims include but are not limited to claims by the Company
for injunctive and/or other equitable relief for unfair competition
and/or the use and/or unauthorized disclosure of trade secrets or
confidential information, as to which Employee understands and agrees
that the Company may seek and obtain relief from a court of competent
jurisdiction.
10.3 Required Notice of All Claims and Statute of
Limitations. Company and Employee agree that the aggrieved party must
give written notice of any claim to the other party within one year of
the date the aggrieved party first has knowledge of the event giving rise
to the claim; otherwise the claim shall be void and deemed waived even if
there is a federal or state statute of limitations which would have given
more time to pursue the claim. The written notice shall identify and
describe the nature of all claims asserted and the facts upon which such
claims are based.
10.4 Hearing or Mediation. Prior to any arbitration
proceeding taking place pursuant to this Section, Company or Employee
may, at its respective option, elect to submit the claim to non-binding
mediation before a mutually agreeable mediation tribunal or mediator, in
which event both parties shall execute a suitable confidentiality
agreement and abide by the procedures specified by the mediation tribunal
or mediator.
10.5 Arbitration Procedures. Any arbitration shall be
conducted in accordance with the then-current Model Employment
Arbitration Procedures of the American Arbitration Association ("AAA"),
modified to substitute for AAA actions, the United States Arbitration and
Mediation Service ("USA&MS"), before an arbitrator who is licensed to
practice law in the State of Oregon ("the Arbitrator"). The arbitration
shall take place in or near Portland, Oregon.
10.5.1 Selection of Arbitrator. The USA&MS shall
give each party a list of 11 arbitrators drawn from its panel of labor-
management dispute arbitrators. Each party may strike all names on the
list it deems unacceptable. If only one common name remains on the lists
of all parties, that individual shall be designated as the Arbitrator.
If more than one common name remains on the lists of all parties, the
parties shall strike names alternately until only one remains. The party
who did not initiate the claim shall strike first. If no common name
remains on the lists of all parties, the USA&MS shall furnish an
additional list or lists until an Arbitrator is selected.
10.5.2 Applicable Law. The Arbitrator shall apply
the substantive law (and the law of remedies, if applicable) specified in
this Agreement or federal law, or both, as applicable to the claim(s)
asserted. The Oregon Rules of Evidence shall apply. The Arbitrator, and
not any federal, state, or local court or agency, shall have exclusive
authority to resolve any dispute relating to the interpretation,
applicability, enforceability or formation of this Agreement, including
but not limited to any claim that all or any part of this Agreement is
void or voidable. The arbitration shall be final and binding upon the
parties, except as provided in this Agreement.
10.5.3 Authority. The Arbitrator shall have
jurisdiction to hear and rule on pre-hearing disputes and is authorized
to hold pre-hearing conferences by telephone or in person as the
Arbitrator deems necessary. The Arbitrator shall have the authority to
entertain a motion to dismiss and/or a motion for summary judgment by any
party and shall apply the standards governing such motions under the
Federal Rules of Civil Procedure. The Arbitrator shall render an award
and opinion in the form typically rendered in labor arbitrations.
10.5.4 Representation. Any party may be represented
by an attorney or other representative selected by the party.
10.5.5 Discovery. Each party shall have the right
to take the deposition of one individual and any expert witness
designated by another party. Each party also shall have the right to
make requests for production of documents to any party. The subpoena
right specified below shall be applicable to discovery pursuant to this
paragraph. Additional discovery may be had only where the Arbitrator
selected pursuant to this Agreement so orders, upon a showing of
substantial need. At least 30 days before the arbitration, the parties
must exchange lists of witnesses, including any experts, and copies of
all exhibits intended to be used at the arbitration. Each party shall
have the right to subpoena witnesses and documents for the arbitration.
10.5.6. Reporter. Either party, at its expense, may
arrange for and pay the cost of a court reporter to provide a
stenographic record of proceedings.
10.5.7 Post-Hearing Briefs. Either party, upon
request at the close of hearing, shall be given leave to file a
post-hearing brief. The time for filing such a brief shall be set by the
Arbitrator.
10.6 Enforcement. Either party may bring an action in
any court of competent jurisdiction to compel arbitration under this
Agreement and to enforce an arbitration award. Except as otherwise
provided in this Agreement, both the Company and Employee agree that
neither shall initiate or prosecute any lawsuit or administrative action
(other than for a non-covered claim) in any way related to any claim
covered by this Agreement. A party opposing enforcement of an award may
not do so in an enforcement proceeding, but must bring a separate action
in any court of competent jurisdiction to set aside the award, where the
standard of review will be the same as that applied by an appellate court
reviewing a decision of a trial court sitting without a jury.
10.7 Arbitration Fees and Costs. Company and Employee
shall equally share the fees and costs of the Arbitrator. Each party
will deposit funds or post other appropriate security for its share of
the Arbitrator's fee, in an amount and manner determined by the
Arbitrator, 10 days before the first day of hearing. Each party shall
pay for its own costs and attorneys' fees, if any, provided that the
Arbitrator, in its sole discretion, may award reasonable fees to the
prevailing party in a proceeding.
11. General Terms and Conditions. The parties acknowledge
that the Company is engaged in transactions involving interstate commerce
and that Employee's employment involves such commerce. This Agreement
constitutes the entire understanding of the parties relating to the
employment of Employee by the Company, and supersedes and replaces all
written and oral agreements heretofore made or existing by and between
the parties relating thereto. This Agreement shall be construed in
accordance with the laws of the state of Oregon, without regard to any
conflicts of laws rules thereof. This Agreement shall inure to the
benefit of any successors or assigns of the Company. All captions used
herein are intended solely for convenience of reference and shall in no
way limit any of the provisions of this Agreement.
IN WITNESS HEREOF, the parties have executed this Employment
Agreement as of the date first hereinabove written.
EPITOPE, INC.
Xxxxx X. Xxxxx, Xx. By: Xxxxxx X. Xxxxx, Ph.D.
Xxxxx X. Xxxxx, Xx. Xxxxxx X. Xxxxx, Ph.D.
Title: President
