Executive Employment Agreement
Exhibit 10.1
This executive employment agreement (the “Agreement”) is effective as of August 16, 2007 by and
between Micromet, Inc. (hereinafter the “Company”) and Xxxx X. Xxxxxxxxxx (hereinafter
“Executive”).
Whereas, the Company desires to employ Executive to provide personal services to the
Company, and wishes to provide Executive with certain compensation and benefits in return for his
services; and
Whereas, Executive wishes to be employed by the Company and provide personal services to
the Company in return for certain compensation and benefits;
Now, therefore, in consideration of the mutual promises and covenants contained herein, it
is hereby agreed by and between the parties hereto as follows:
1. Employment by the Company
1.1 Position. Subject to terms set forth herein, the Company agrees to employ Executive in
the position of Senior Vice President, Chief Commercial Officer, and Executive hereby accepts such
employment. During his employment with the Company, Executive will devote his best efforts and
substantially all of his business time and attention to the business of the Company, except for
vacation periods and reasonable periods of illness or other incapacities permitted by the Company’s
general employment policies.
1.2 Duties. Executive will serve in an executive capacity and will perform such duties as are
customarily associated with his then current title, consistent with the certificate of
incorporation and the bylaws of the Company, and as required by the board of directors of the
Company (the “Board”), including, without limitation, the performance of activities as an officer
of the Company or the Company’s subsidiaries. Executive will report directly to the Chief
Executive Officer. Upon termination of the employment pursuant to Section 7, Executive agrees to
resign from all functions which he exercised or assumed on the basis of or in connection with
Executive’s employment by the Company.
1.3 Location. Executive’s primary office location will be at the Company’s headquarter
offices in Bethesda, MD. The Company reserves the right to reasonably require Executive to perform
his duties at places other than at his primary office location from time to time, and to require
reasonable business travel.
1.4 Relocation Assistance and Signing Incentives. In order to facilitate Executive’s
potential relocation from his current domicile to the area of the Company’s headquarter offices in
Bethesda, the Company will:
(a) pay all of Executive’s reasonable expenses for the relocation of Executive and his
household to the area of the Company’s headquarter offices;
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(b) reimburse Executive’s transaction costs with respect to the sale of his current home in
the amount of up to 6% (net after any applicable tax withholding and payroll deductions) of the
sales price of such home;
(c) reimburse up to $10,000 (net after any applicable tax withholding and payroll deductions)
of Executive’s closing costs incurred in connection with the purchase of a new home in the area of
the Company’s headquarter offices (excluding such costs resulting from the payment of “points” to
reduce the mortgage interest rate);
(d) reimburse Executive for the cost of renting a temporary apartment in the area of the
Company’s headquarter offices for a period of up to six months and a maximum amount of up to
$15,000 (net after any applicable tax withholding and payroll deductions); provided that if
Executive has not been able to sell his current home prior to the expiration of the 6 month period,
the Company will continue to reimburse Executive for the cost of renting a temporary apartment up
to the date of the closing of the sale of his current home, but in no event for longer than an
additional 6 month period; and provided further that any such additional reimbursement is
deductible from the Company’s reimbursement obligations pursuant to subsection 1.4 (e) below;
(e) if the sale of Executive’s current home occurs after the purchase of Executive’s new home
in the area of the Company’s headquarter offices, the Company will reimburse the mortgage payments
for Executive’s current home during the period starting on the date on which it is first offered
for sale and ending on the date of closing of the sale, for a period of up to six months and a
maximum amount of up to $25,000 (net after any applicable tax withholding and payroll deductions);
provided that Executive will use good faith efforts to effect the sale as soon as practicable;
(f) pay to Executive an amount of up to $30,000 (net after any applicable tax withholding and
payroll deductions) with his first regular salary payment, provided that if the Executive incurs a
loss as a result of a difference between the purchase price originally paid and the sales price
received by Executive for his current home that is less than $30,000, the Executive will repay to
the Company the difference between the loss incurred and the amount of $30,000. If, prior to the
first anniversary of the Employment Commencement Date, Executive terminates his employment with the
Company without Good Reason or the Company terminates Executive’s employment for Cause, then
Executive will repay to the Company the amount received by Executive and not repaid under this
subsection (f); and
(g) reimburse to Executive up to $5,000 (net after any applicable tax withholding and payroll
deductions) of any payments made by Executive to his prior employer on account of a repayment
obligation with respect to the signing bonus received by Executive from such prior employer.
1.5 Term. The term of this Agreement will commence on September 10, 2007 (the “Employment
Commencement Date”), and will continue from that date until September 3, 2011 (the “Initial Term”),
and will be renewed automatically for consecutive one (1) year periods (each an “Extension Term”,
and collectively with the Initial Term referred to herein as the “Employment Term”); provided,
however, that, if either the Company or the
Executive does
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not wish to renew this Agreement when it expires at the end of the Initial Term
or any Extension Term, it or Executive shall give written notice of termination in accordance with
Section 7.2 or 7.4, respectively, and the terms of Section 7.2 or 7.4 will apply with respect to
any such termination by the Company or Executive, respectively. The parties expressly agree that
designation of the Employment Term and the renewal provisions in this Agreement do not in any way
limit the right of the parties to terminate this Agreement at any time as provided in Section 7.
1.6 Policies and Procedures. In addition to the terms of this Agreement, the employment
relationship between the parties will be governed by the general employment policies and practices
of the Company, including those relating to protection of confidential information and assignment
of inventions. If the terms of this Agreement differ from or are in conflict with the Company’s
general employment policies or practices, this Agreement will control.
2. Compensation
2.1 Base Salary. For services rendered hereunder by Executive during the Employment Term,
Executive will receive an annualized base salary of two hundred seventy five thousand US dollars
(US$275,000) (the “Base Salary”), payable in accordance with the Company’s regular payroll schedule
(but not less frequently than monthly), less any payroll withholding and deductions in accordance
with applicable law and the Company’s general employment policies or practices. Such Base Salary
will be reviewed annually by the Compensation Committee of the Board and may be increased at its
discretion. The initial such review will occur in Spring 2008 in accordance with the Company’s
review process for its executives.
2.2 Bonus. Executive will participate in the Company’s Management Incentive Compensation Plan
adopted by the Company from time to time or in such other bonus plan as the Board may approve for
the senior executive officers of the Company. Except as otherwise provided in this Agreement,
Executive’s participation in and benefits under any such plan will be on the terms and subject to
the conditions specified in the governing document of the particular plan.
2.3 Equity Compensation.
(a) On the first day of the month following the Employment Commencement Date (the “Grant
Date”), Executive will be granted an option to purchase up to 300,000 shares of Common Stock of the
Company (the “Initial Stock Option”). The Initial Stock Option will have an exercise price equal
to the fair market value of the Company’s Common Stock on the date preceding the Grant Date. The
Initial Stock Option will be granted as an incentive stock option to the maximum extent permitted
by law, and otherwise will be non-qualified stock options. The Initial Stock Option will be
subject to the Micromet, Inc. Amended and Restated 2003 Equity Incentive Award Plan (the “Plan”)
and the Company’s standard form of stock option agreement, which Executive will be required to
execute as a condition to this grant. The Initial Stock Option will vest over a four-year period,
with 25% of the shares subject
to the Initial Stock Option vesting on the 12 month anniversary date of the date of this
Agreement, and 1/48 of the shares subject to the option vesting on a monthly basis thereafter.
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(b) In addition to the Initial Stock Option, Executive will be eligible to participate in any
equity or other employee benefit plan that is generally available to senior executive officers, as
distinguished from general management, of the Company, including, without limitation, the Plan.
Except as otherwise provided in this Agreement, Executive’s participation in and benefits under any
such plan will be on the terms and subject to the conditions specified in the governing document of
the particular plan.
2.4 Acceleration of Vesting. The provisions concerning vesting pursuant to clauses (a), (b)
and (c) of this Section 2.4 will be cumulative, and are hereby deemed to be a part of all stock
options, including the Initial Stock Option, restricted stock and such other awards granted
pursuant to the Company’s stock option and equity incentive award plans or agreements and any
shares of stock issued upon exercise thereof, (each a “Stock Award”) and to supersede any less
favorable provision in any agreement or plan regarding such Stock Award.
(a) Subject to any additional acceleration of vesting and exercisability provided for in this
Agreement, in connection with a Change of Control (as defined in subsection (d) below), fifty
percent (50%) of Executive’s outstanding unvested Stock Awards will be automatically vested and
exercisable on the date of first closing of any transaction or the stockholder vote resulting in
such Change of Control. The portion of any outstanding Stock Award that remains unvested after the
application of the accelerated vesting under this Section shall continue to vest on the same
schedule, but the number of shares vesting on each installment shall be reduced on a pro rata basis
to take into account the accelerated vesting herein.
(b) If Executive’s employment is terminated by the Company without Cause, by Executive for
Good Reason, or as a result of Executive’s death or Disability, Executive’s outstanding unvested
Stock Awards that would have vested over the twelve (12) month period following the date of
termination had Executive remained continuously employed by the Company during such period, will be
automatically vested and exercisable on the date of termination.
(c) If Executive’s employment is terminated by the Company without Cause or by Executive for
Good Reason within six (6) months prior to or twelve (12) months following a Change of Control, all
of Executive’s outstanding unvested Stock Awards will be automatically vested and exercisable on
the later of (i) the date of termination or (ii) the date of first closing of any transaction or
the stockholder vote resulting in such Change of Control. If the employment is terminated prior to
the Change of Control, the Company will inform Executive in writing of any Change of Control
occurring within six (6) months of such termination. If any such unvested Stock Awards have been
terminated, the Company will reissue and offer to Executive any of Executive’s Stock Awards that
had not vested at the time of termination. Such Stock Awards will be fully vested and exercisable
at the exercise price of the previously terminated Stock Awards, provided that Executive agrees to
exercise such Stock Awards within the then current calendar year.
(d) “Change of Control” means and includes each of the following events:
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(i) the acquisition, directly or indirectly, by any “person” or “group” (as those terms are
defined in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), and the rules thereunder) of “beneficial ownership” (as determined pursuant
to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of
directors (“Voting Securities”) of the Company that represent fifty percent (50%) or more of the
combined voting power of the Company’s then outstanding Voting Securities, other than:
(1) an acquisition by a trustee or other fiduciary holding securities under any employee
benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by
the Company or by any employee benefit plan (or related trust) sponsored or maintained by the
Company or any person controlled by the Company, or
(2) an acquisition of Voting Securities by the Company or a corporation owned, directly or
indirectly by the stockholders of the Company in substantially the same proportions as their
ownership of the stock of the Company, or
(3) an acquisition of Voting Securities pursuant to a transaction described in clause (iii)
below that would not be a Change of Control under clause (iii);
Provided, however, that notwithstanding the foregoing, the following event will not
constitute an “acquisition” by any person or group for purposes of this subsection (i): an
acquisition of the Company’s securities by the Company (the “Securities Repurchase”) which causes
the Company’s Voting Securities beneficially owned by a person or group to represent fifty percent
(50%) or more of the combined voting power of the Company’s then outstanding Voting Securities,
except that such Securities Repurchase will constitute a Change of Control if and when such
person or group, after such Securities Repurchase, becomes the beneficial owner of any additional
Voting Securities of the Company;
(ii) if, during any period of two (2) consecutive years, individuals who, at the beginning of
such period, constitute the Board together with any new director(s) (other than any director
designated by a person who has entered into an agreement with the Company to effect a transaction
described in clauses (i) or (iii) of this Section 2.4(d) whose election by the Board or nomination
for election by the Company’s stockholders was approved by a vote of at least two-thirds (2/3) of
the directors then still in office who either were directors at the beginning of the two (2) year
period or whose election or nomination for election was previously so approved), cease for any
reason to constitute a majority thereof;
(iii) the consummation by the Company (whether directly involving the Company or indirectly
involving the Company through one or more intermediaries) of (x) a merger, consolidation,
reorganization, or business combination or (y) a sale or other disposition of all or substantially
all of the Company’s assets or (z) the acquisition of assets or stock of another entity, in each
case other than:
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(1) a transaction which results in the Company’s Voting Securities outstanding immediately
before the transaction continuing to represent (either by remaining outstanding or by being
converted into Voting Securities of the Company or the person that, as a result of the transaction,
controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially
all of the Company’s assets or otherwise succeeds to the business of the Company (the Company or
such person, the “Successor Entity”) directly or indirectly, at least a majority of the combined
voting power of the Successor Entity’s outstanding Voting Securities immediately after the
transaction, and
(2) a transaction after which no person or group beneficially owns Voting Securities
representing fifty percent (50%) or more of the combined voting power of the Successor Entity;
provided, however, that no person or group will be treated for purposes of this clause (2)
as beneficially owning fifty percent (50%) or more of combined voting power of the Successor Entity
solely as a result of the voting power held in the Company prior to the consummation of the
transaction.
2.5 Standard Company Benefits. Executive will be entitled to all rights and benefits for
which he is eligible under the terms and conditions of the standard benefits and compensation
practices which may be in effect from time to time and provided by the Company to its employees
generally, as may be adopted, amended or discontinued in its discretion, consistent with then
applicable law. Until such time as the Company has established its own health insurance for which
Executive is eligible, the Company will reimburse Executive for his payments for a continuation of
his current health insurance pursuant to COBRA.
2.6 Business Expenses. The Company will reimburse Executive for Company-related travel,
entertainment, professional licensing, continuing education and other expenses reasonably incurred
by Executive on behalf of the Company pursuant to the Company’s expense reimbursement policy for
its employees.
3. Insurance and Indemnification
3.1 Life Insurance.
(a) The Company will reimburse Executive for the cost of his life insurance in place as of the
date of this Agreement, or corresponding insurance coverage by different insurers at comparable or
lesser cost.
(b) The Company will have the right to take out life, health, accident, “key-man” or other
insurance covering Executive, in the name of the Company and at the Company’s expense in any amount
deemed appropriate by the Company. Executive will assist the Company in obtaining such insurance,
including, without limitation, submitting to any required examinations and providing information
and data required by insurance companies.
3.2 D&O Insurance. The Company will obtain and maintain at the Company’s expense during the
Employment Term and for six (6) years thereafter liability insurance for the directors and officers
of the Company (D&O insurance) in the amount of at least US$ 10 million covering any acts or
omissions of the Executive in the performance of services under this Agreement.
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3.3 Indemnification. The Company and Executive will enter into a separate indemnification
agreement, and the Company will indemnify Executive in accordance with the terms of such agreement.
4. Vacation
Executive is entitled to an annual, paid vacation in accordance with the Company’s standard
policies and as otherwise provided for senior executive officers, but in no event less than twenty
(20) working days. Working days are all calendar days with the exception of Saturdays, Sundays and
US federal holidays (provided however, that Executive may elect to take the day after Thanksgiving
in lieu of Veteran’s Day). Executive will coordinate the date of vacation reasonably in advance
with the other executive officers of the Company, and the timing of such vacation will be subject
to the prior approval of the Chief Executive Officer.
5. Outside Activities During Employment
5.1 Exclusive Employment. Executive agrees not to become engaged in any other business
activity which, in the reasonable judgment of the Chief Executive Officer, is likely to interfere
with Executive’s ability to discharge his duties and responsibilities to the Company. Executive
may engage in civic and not-for-profit activities, and participate in industry associations so long
as such activities do not materially interfere with the performance of his duties hereunder.
Executive agrees that he will not join any boards, other than community and civic boards and boards
of industry associations which do not interfere with his duties to the Company, without the prior
approval of the Board.
5.2 No Adverse Interests. Except as permitted by Section 5.3, Executive agrees not to
acquire, assume or participate in, directly or indirectly, any position, investment or interest
known by him to be adverse or antagonistic to the Company, its business or prospects, financial or
otherwise, or engage in any business that creates a conflict of interest with his duties or loyalty
to the Company.
5.3 Non-Competition during Employment Term. During the Employment Term, except on behalf of
the Company or as expressly authorized by the Board, Executive will not directly or indirectly,
whether as an officer, director, stockholder, partner, proprietor, associate, representative,
consultant, or in any capacity whatsoever engage in, become financially interested in, be employed
by or have any business connection with any other person, corporation, firm, partnership or other
entity whatsoever which were known by him to compete directly with the Company, throughout the
world, in any line of business engaged in (or planned to be engaged in) by the Company;
provided, however, that anything above to the contrary notwithstanding, he or his immediate
family may own, as a passive investor, securities of any competitor corporation, so long as his
direct holdings in any one such corporation will not in the aggregate constitute more than one
percent (1%) of the voting stock of such corporation.
6. Proprietary Information Obligations
As a condition of employment, Executive agrees to execute and abide by the Proprietary
Information and Inventions Agreement attached hereto as Exhibit A.
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7. Termination Of Employment
7.1 Termination by the Company for Cause
(a) The Company may terminate Executive’s employment with the Company at any time for Cause,
determined in the Board’s discretion, upon written notice to Executive.
(b) “Cause” means: (i) a material breach of this Agreement or any other written agreement
between Executive and the Company; (ii) Executive’s gross negligence or willful misconduct in the
performance of his duties; (iii) the commission of any act or omission constituting dishonesty or
fraud that has a material adverse impact on the Company or any successor or affiliate thereof; (iv)
any conviction of, or plea of “guilty’ or “no contest” to, a felony; (v) conduct by Executive which
in the good faith and reasonable determination of the Board demonstrates gross unfitness to serve;
(vi) failure to attempt in good faith to implement a clear and reasonable directive of the
Company’s Chief Executive Officer after written notice of such failure, and failure by Executive to
cure the same within fifteen (15) business days after receipt of such notice; (vii) persistent
unsatisfactory performance of job duties after written notice of such and failure to cure the same
after having been provided with a reasonable opportunity to cure if deemed curable; or (viii)
breach of fiduciary duty; provided, however, that prior to the determination that Cause
under this subsection (b) has occurred, the Company will (1) provide to Executive in writing, in
reasonable detail, the reasons for the determination that such “Cause” exists, (2) afford Executive
a reasonable opportunity to remedy any such breach except with respect to clause (vi) above which
specifies the applicable period of time for Executive to remedy his breach, (3) provide the
Executive an opportunity to be heard prior to the final decision to terminate the Executive’s
employment hereunder for such Cause, and (4) make any decision that such Cause exists in good
faith.
(c) In connection with a termination of the employment pursuant to this Section 7.1, Executive
will not be entitled to receive any Severance Benefits (as defined in Section 7.2 below), unpaid
bonuses or other compensation, other than accrued Base Salary plus other amounts to which Executive
is entitled under any bonus or compensation plan or practice of the Company through the date of
termination.
7.2 Termination by the Company without Cause.
(a) The Company may terminate Executive’s employment with the Company at any time without
Cause.
(b) In the event the Company terminates Executive’s employment without Cause, the Company will
pay Executive the Base Salary due the Executive through the date of termination, plus other amounts
to which Executive is entitled under any bonus or compensation plan or practice of the Company at
the time of termination. In addition, and provided that Executive executes and does not revoke a
release as provided in Section 8, the Company will pay or grant Executive in lieu of any other
severance benefits or any other compensation the following as severance benefits (“Severance
Benefits”):
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(i) an amount that is the greater of (1) the equivalent to the Base Salary for a period of
twelve (12) months from the date of termination, less any payroll withholding and deductions due on
such salary in accordance with applicable law, or (2) the benefits under the Company severance
benefit plan applicable to Executive, if any, in effect on the termination date; and
(ii) an amount equal to Executive’s Bonus (as defined below) for the year in which the
employment is terminated prorated for the period during such year Executive was employed prior to
the date of termination (or the full amount of the Bonus if Executive’s employment is terminated
within six (6) months prior to or twelve (12) months following a Change of Control). As used in
this Agreement, “Bonus” means the average of the bonuses awarded to Executive for each of the three
(3) fiscal years prior to the date of termination, or such lesser number of years as may be
applicable if Executive has not been employed for three (3) full years on the date of termination.
For purposes of determining Executive’s “Bonus,” to the extent Executive received no bonus in a
year due to a failure to meet the applicable performance objectives, such year will still be taken
into account (using zero (0) as the applicable bonus) in determining Executive’s “Bonus” for
purposes of this subsection (ii), and if any portion of the bonuses awarded to Executive consisted
of securities or other property, the fair market value thereof will be determined in good faith by
the Board; and
(iii) acceleration of vesting of Stock Awards pursuant to Section 2.4(b) or 2.4(c), as
applicable; and
(iv) for the period beginning on the date of termination and ending on the date which is
twelve (12) full months following the date of termination (or, if earlier, the date on which the
applicable continuation period under the Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended (“COBRA”) or applicable state coverage continuation law expires), (1) reimburse Executive
for the costs associated with continuation coverage pursuant to COBRA, or applicable state coverage
continuation laws, for Executive and his eligible dependents who were covered under the Company’s
health plans as of the date of Executive’s termination (provided that Executive will be solely
responsible for all matters relating to his continuation of coverage pursuant to COBRA or any state
analog, including, without limitation, his election of such coverage and his timely payment of
premiums), or for any health insurance premiums of Executive’s health insurance paid by the Company
prior to termination of employment pursuant to this Section 7.2 for which continuation coverage
pursuant to COBRA or any state analog is not available, and (2) pay to Executive the amount of any
life insurance premiums it was paying prior to the date of Executive’s termination;
(v) executive-level outplacement services at the Company’s expense, not to exceed $15,000, by
a firm selected by Executive from a list compiled by the Company.
(c) The Severance Benefits due pursuant to Section 7.2(b)(i) and (b)(ii) will be payable as a
lump sum payment no later than the date on which Executive’s right to revoke any waiver and release
of legal claims has expired.
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(d) The Company will have the right to withhold further payments of unpaid Severance Benefits,
upon its notice to Executive of the Board’s good faith reasonable belief, and the basis for the
reasonable belief, that Executive has breached any of his post-termination obligations to the
Company as defined in this Agreement.
7.3 Termination by Executive for Good Reason.
(a) Executive may voluntarily terminate his employment for Good Reason, as defined below;
provided, however, that it shall only be deemed Good Reason pursuant to the
definition below if (i) the Company is given written notice from the Executive within ninety (90)
days following the first occurrence of a condition that the Executive considers to constitute Good
Reason describing the condition and fails to remedy such condition within thirty (30) days
following such written notice, and (ii) the Executive resigns from employment within ninety (90)
days following the end of the period within which the Company was entitled to remedy the condition
constituting Good Reason but failed to do so.
(b) “Good Reason” means: (i) any material diminution of Executive’s authority, duties or
responsibilities; (ii) any material reduction by the Company in Executive’s annual Base Salary;
(iii) a relocation of Executive’s place of employment to a location in excess of 50 miles from the
Company’s headquarter offices in Bethesda, MD; (iv) any material breach by the Company of this
Agreement after written notice of such breach and failure by the Company to cure the breach within
fifteen (15) business days after receipt of such notice; (v) any purported termination of
Executive’s employment for Cause by the Company that is not in accordance with the definition of
Cause set forth in this Agreement; (vi) any failure to pay Executive the earned bonus for any
period under any management incentive compensation plan adopted by the Company, if a majority of
other officers of the Company or any successor or affiliate have been paid bonuses for such period
under such plan; or (vii) any failure by the Company to obtain the assumption of this Agreement by
any successor or assign of the Company.
(c) In the event Executive terminates his employment under circumstances which constitute Good
Reason, and provided that Executive executes and does not revoke a release as provided in Section
8, the Company will pay or grant Executive the Severance Benefits according to Section 7.2(b),
provided that the Company will have the right to withhold further payments of unpaid Severance
Benefits, upon its notice to Executive of the Board’s good faith reasonable belief, and the basis
for the reasonable belief, that Executive has breached any of his post-termination obligations to
the Company.
7.4 Termination by Executive Without Good Reason.
(a) Executive may terminate the employment with the Company at any time without Good Reason.
(b) In connection with a termination of the employment pursuant to this Section 7.4, Executive
will not be entitled to receive any Severance Benefits, unpaid bonuses or other compensation,
except that the Company will pay Executive the Base Salary due the
Executive through the date of termination, plus other amounts to which Executive is entitled
under any bonus or compensation plan or practice of the Company at the time of termination.
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7.5 Termination for Death.
(a) The Employment Term will terminate immediately upon Executive’s death. Upon such
termination, the Company will pay to any beneficiaries designated by Executive in writing in
Exhibit C (the “Death Benefits Recipients”), or in the absence of such designation, to Executive’s
estate, in lieu of any other severance benefits or any other compensation:
(i) the Base Salary due the Executive through the date of Executive’s death, plus other
amounts to which Executive is entitled under any bonus or compensation plan or practice of the
Company at the time of Executive’s death;
(ii) Executive’s annual Base Salary as in effect immediately prior to the date of death,
payable over the twelve (12) month period commencing on the date of death in equal monthly
installments, provided, however, that any installments remaining to be paid on March 15 of the
calendar year immediately following the year of the Executive’s death shall be accelerated and paid
in full at that time;
(iii) an amount equal to Executive’s Bonus for the year in which Executive’s death occurs,
payable over the twelve (12) month period commencing on the date of death in equal monthly
installments provided, however, that any installments remaining to be paid on March 15 of the
calendar year immediately following the year of the Executive’s death shall be accelerated and paid
in full at that time.
(b) In addition, for the period beginning on the date of death and ending on the date which is
twelve (12) full months following the date of death (or, if earlier, the date on which the
applicable continuation period under COBRA or applicable state coverage continuation laws expires),
the Company will reimburse Executive’s eligible dependents for the costs associated with
continuation coverage for such eligible dependents pursuant to COBRA or applicable state analog)
(provided that Executive’s dependents will be solely responsible for all matters relating
to such continuation of coverage pursuant to COBRA or applicable state analog, including, without
limitation, election of such coverage and the timely payment of premiums), or for any health
insurance premiums of Executive’s health insurance paid by the Company prior to termination of
employment pursuant to this Section 7.5 for which continuation coverage pursuant to COBRA is not
available.
(c) Executive may change the Death Benefits Beneficiaries by written notice to the Company.
7.6 Termination for Disability.
(a) The Company may terminate Executive’s employment by written notice at any time for
Disability (as defined in subsection (c) below). Upon such termination, the Company will pay
Executive (i) the Base Salary due Executive through the date of termination, plus other amounts to
which Executive is entitled under any bonus or compensation plan or
practice of the Company at the time of termination, and (ii) provided that Executive executes
and does not revoke a release as provided in Section 8, the Severance Benefits.
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(b) The payments and Severance Benefits due the Executive under subsection (a) above are in
lieu of any other severance benefits or any other compensation. The Severance Benefits due
pursuant to Section 7.2(b)(i) and 7.2(b)(ii) will be payable as a lump sum payment or in equal
installments over a twelve (12) month period, as determined by the Board in its discretion,
provided that any installments remaining to be paid on March 15 of the calendar year immediately
following the year of the Executive’s termination shall be accelerated and paid in full at that
time.
(c) “Disability” will be deemed to have occurred if Executive was physically or mentally
incapacitated or disabled or otherwise unable fully to discharge his duties hereunder for (i) a
period in excess of ninety (90) consecutive days, or (ii) a period in excess of one hundred twenty
(120) days in the aggregate in any consecutive one hundred eighty (180) day period. This
definition will be interpreted and applied consistent with the Americans with Disabilities Act, the
Family and Medical Leave Act and other applicable law. The existence of Executive’s Disability
will be determined by the Company on the advice of a physician chosen by the Company and Executive
(or in the event of mental disability, Executive’s Death Benefits Recipients) and the Company
reserves the right to have the Executive examined by such physician at the Company’s expense.
7.7 Cooperation Obligations.
(a) Transition Activities. After delivery or receipt of any notice of termination by
Executive, and for a reasonable period following any termination of Executive’s employment for any
reason, Executive will fully cooperate with the Company in all matters relating to the winding up
of Executive’s pending work and the orderly transfer of any such pending work to such other
employees as may be designated by the Company.
(b) Return of the Company’s Property. If Executive’s employment is terminated for any reason
the Company will have the right, at its option, to require Executive to vacate his offices prior to
or on the effective date of termination and to cease all activities on the Company’s behalf. Upon
the termination of his employment in any manner, as a condition to the Executive’s receipt of any
post-termination benefits described in this Agreement, Executive will immediately surrender to the
Company all lists, books and records of, or in connection with, the Company’s business, and all
other property belonging to the Company, it being distinctly understood that all such lists, books
and records, and other documents, are the property of the Company. Executive will deliver to the
Company a signed statement certifying compliance with this Section 7.7 prior to the receipt of any
post-termination benefits described in this Agreement
(c) Litigation. After the Employment Term, Executive will cooperate with the Company in
responding to the reasonable requests of the Company’s Chairman of the Board, CEO or General
Counsel, in connection with any and all existing or future litigation, arbitrations, mediations or
investigations brought by or against the Company, or its or their respective affiliates, agents,
officers, directors or employees, whether administrative, civil or criminal in nature, in which the
Company reasonably deems Executive’s cooperation necessary
or desirable. In such matters, Executive agrees to provide the Company with reasonable
advice, assistance and information, including offering and explaining evidence, providing sworn
statements, and participating in discovery and trial preparation and testimony. Executive also
agrees to promptly send the Company copies of all correspondence (for example, but not limited to,
subpoenas) received by Executive in connection with any such legal proceedings, unless Executive is
expressly prohibited by law from so doing.
12
(d) Expenses and Fees. The Company will reimburse Executive for reasonable out-of-pocket
expenses incurred by Executive as a result of his cooperation with the obligations described in
this Section 7.7, within thirty (30) days of the presentation of appropriate documentation thereof,
in accordance with the Company’s standard reimbursement policies and procedures. Except as
provided in the preceding sentence, Executive will not be entitled to any compensation for
activities performed pursuant to this Section 7.7 during the period in which Executive receives any
Severance Benefits. Thereafter, the Company will pay Executive a compensation for activities
performed pursuant to this Section 7.7 based on an hourly rate of 160th of Executive’s
monthly Base Salary immediately preceding the termination of employment (the “Fees”). In
performing obligations under this Section 7.7 following termination of the employment, Executive
agrees and acknowledges that he will be serving as an independent contractor, not as a the Company
employee, and he will be entirely responsible for the payment of all income taxes and any other
taxes due and owing as a result of the payment of Fees, will not be eligible to participate in any
Company benefit plans while performing such services.
7.8 Surviving Clauses. Sections 2.4, 3, 6, 7, 8, 9, 10, and 11 (including the definitions of
any defined terms referenced therein) will survive any termination or expiration of this Agreement.
8. Release
As a condition precedent to receipt of any Severance Benefits, Executive will provide the
Company with an executed and effective general release substantially in the form attached hereto as
Exhibit B (the “Release”), or a release in such other form as the parties may agree upon at the
time.
9. Non-Competition
Executive will not, for a period of twelve (12) months from the end of the Employment Term,
for Executive’s own account, or as owner, manager, officer, shareholder, consultant, director,
representative or employee of a company, participate in the research or development of (i)
antibodies against the EpCAM target molecule, or (ii) BiTE molecules or active agents which trigger
the same mechanism as BiTE molecules (collectively, the “Non-Compete Field”). The Board may, in
its discretion, reduce the scope of the Non-Compete Field.
10. Non-Solicitation
While employed by the Company, and for a period of six (6) months from the end of the
Employment Term, Executive will not interfere with the business of the Company by (a) soliciting,
attempting to solicit, inducing, or otherwise causing any employee of the Company to
terminate employment in order to become an employee, consultant or independent contractor to
or for any other person or entity; or (b) directly or indirectly causing any third party that
provides services to the Company to terminate, diminish, or materially alter in a manner harmful to
the Company its relationship with the Company.
13
11. General Provisions
11.1 Notices. Any notices provided hereunder must be in writing and will be deemed effective
upon the earlier of personal delivery or receipt if delivered by mail or courier service, to the
Company at its primary office location and to Executive at his address as listed on the Company
payroll or the Executive’s then current place of abode.
11.2 Confidentiality. Executive will hold the provisions of this Agreement in strictest
confidence and will not publicize or disclose this Agreement in any manner whatsoever;
provided, however, that Executive may disclose this Agreement: (a) to Executive’s immediate
family; (b) in confidence to his attorneys, accountants, auditors, tax preparers, and financial
advisors; (c) insofar as such disclosure may be necessary to enforce its terms or as otherwise
permitted or required by law. In particular, and without limitation, Executive agrees not to
disclose the terms of this Agreement to any current or former employee of the Company.
11.3 Reasonableness of Restrictions. Executive acknowledges and agrees that (a) he has read
this entire Agreement and understands it, (b) the limitations imposed in this Agreement do not
prevent him from earning a living or pursuing his career following the termination of the
employment, and (c) the restrictions contained in this Agreement are reasonable, proper, and
necessitated by the Company’s legitimate business interests. Executive represents and agrees that
he is entering into this Agreement freely and with knowledge of its contents with the intent to be
bound by the Agreement and the restrictions contained in it.
11.4 Remedies. Executive agrees that it may be impossible to assess the damages caused by
Executive’s violation of this Agreement or any of its terms. Executive agrees that any threatened
or actual violation of this Agreement or any of its terms will constitute immediate and irreparable
injury to the Company and the Company will have the right to enforce this Agreement and any of its
provisions by injunction, specific performance or other relief, without bond and without prejudice
to any other rights and remedies that the Company may have for a breach or threatened breach of
this Agreement.
11.5 Severability. In the event that a court finds this Agreement, or any of its
restrictions, to be ambiguous, unenforceable, or invalid, the parties agree that the court will
read the Agreement as a whole and interpret the restriction(s) at issue to be enforceable and valid
to the maximum extent allowed by law. If the court declines to enforce this Agreement in the
manner provided in this Section 11.5, Executive and the Company agree that this Agreement will be
automatically modified to provide the Company with the maximum protection of its business interests
allowed by law and Executive agrees to be bound by this Agreement as modified. In case any one or
more of the provisions, subsections, or sentences contained in this Agreement will, for any reason,
be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability will not affect the other provisions of this Agreement, and this
Agreement will be construed as if such invalid, illegal or unenforceable provision had never
been contained herein.
11.6 Waiver. If either party should waive any breach of any provisions of this Agreement or
fail to enforce performance by the other party, he or it will not thereby be deemed to have waived
any preceding or succeeding breach or performance of the same or any other provision of this
Agreement. Any such waiver will be effective only if made in writing and signed by the Party
waiving such breach or performance.
14
11.7 Complete Agreement; Amendment. This Agreement and its Exhibits, constitute the entire
agreement between Executive and the Company and it is the complete, final, and exclusive embodiment
of their agreement with regard to this subject matter. This Agreement replaces all previous
agreements regarding the service relationship of Executive with the Company. After commencement of
the Agreement Executive does not have any further claim to compensation, including bonuses which
were agreed in the contract replaced by this Agreement, except outstanding due amounts. It is
entered into without reliance on any promise or representation other than those expressly contained
herein. This Agreement cannot be modified or amended except in a writing signed by an authorized
representative of the Company and Executive.
11.8 Counterparts. This Agreement may be executed in separate counterparts, any one of which
need not contain signatures of more than one party, but all of which taken together will constitute
one and the same Agreement.
11.9 Assignment; Assumption by Successor; Non-transferability of Interest.
(a) The Company may assign this Agreement, without the consent of Executive, to any business
entity which at any time, whether by purchase, merger or otherwise, directly or indirectly,
acquires all or substantially all of the assets or business of the Company. The Company will
require any successor (whether direct or indirect, by purchase, merger or otherwise) to all or
substantially all of the business or assets of the Company expressly to assume and to agree to
perform this Agreement in the same manner and to the same extent that the Company would be required
to perform it if no such succession had taken place; provided, however, that no such
assumption will relieve the Company of its obligations hereunder. As used in this Agreement, the
“Company” will mean the Company as hereinbefore defined and any successor to its business and/or
assets as aforesaid which assumes and agrees to perform this Agreement by operation of law or
otherwise.
(b) None of the rights of Executive to receive any form of compensation payable pursuant to
this Agreement will be assignable or transferable except through a testamentary disposition or by
the laws of descent and distribution upon the death of Executive. Any attempted assignment,
transfer, conveyance, or other disposition (other than as aforesaid) of any interest in the rights
of Executive to receive any form of compensation to be made by the Company pursuant to this
Agreement will be void.
11.10 Headings. The headings of the sections hereof are inserted for convenience only and
will not be deemed to constitute a part hereof nor to affect the meaning thereof.
11.11 Construction. The language in all parts of this Agreement will in all cases be
construed simply, according to its fair meaning, and not strictly for or against any of the parties
hereto. Without limitation, there will be no presumption against any party on the ground that such
party was responsible for drafting this Agreement or any part thereof.
15
11.12 Choice of Law. All questions concerning the construction, validity, interpretation of
this Agreement will be governed by the laws of the State of Maryland as applicable to contracts
made and wholly performed within the State of Maryland by residents of that State.
11.13 Arbitration. The parties recognize that litigation in federal or state courts or before
federal or state administrative agencies of disputes arising out of the Executive’s employment with
the Company or out of this Agreement, or the Executive’s termination of employment or termination
of this Agreement, may not be in the best interests of either the Executive or the Company, and may
result in unnecessary costs, delays, complexities, and uncertainty. The parties agree that any
dispute between the parties arising out of or relating to the negotiation, execution, performance
or termination of this Agreement or the Executive’s employment, including, but not limited to, any
claim arising out of this Agreement, claims under Title VII of the Civil Rights Act of 1964, as
amended, the Civil Rights Act of 1991, the Age Discrimination in Employment Act of 1967, the
Americans with Disabilities Act of 1990, Section 1981 of the Civil Rights Act of 1966, as amended,
the Family Medical Leave Act, the Executive Retirement Income Security Act, and any similar
federal, state or local law, statute, regulation, or any common law doctrine, whether that dispute
arises during or after employment, but excluding claims under or relating to Section 9 or 10 of
this Agreement or relating to any separate agreements between the parties (including the
Proprietary Information and Inventions Agreement) which do not specify arbitration as the exclusive
remedy, shall be settled by binding arbitration in accordance with the National Rules for the
Resolution of Employment Disputes of the American Arbitration Association. The location for the
arbitration shall be the Washington, D.C. metropolitan area. Any award made by such panel shall be
final, binding and conclusive on the parties for all purposes, and judgment upon the award rendered
by the arbitrators may be entered in any court having jurisdiction thereof. The arbitrators’ fees
and expenses and all administrative fees and expenses associated with the filing of the arbitration
shall be borne by the Company; provided however, that at the Executive’s option, Executive may
voluntarily pay up to one-half the costs and fees. The parties acknowledge and agree that their
obligations to arbitrate under this Section survive the termination of this Agreement and continue
after the termination of the employment relationship between Executive and the Company. The parties
each further agree that the arbitration provisions of this Agreement shall provide each party with
its exclusive remedy, and each party expressly waives any right it might have to seek redress in
any other forum, except as otherwise expressly provided in this Agreement. By election arbitration
as the means for final settlement of all claims, the parties hereby waive their respective rights
to, and agree not to, xxx each other in any action in a Federal, State or local court with respect
to such claims, but may seek to enforce in court an arbitration award rendered pursuant to
this Agreement. The parties specifically agree to waive their respective rights to a trial by
jury, and further agree that no demand, request or motion will be made for trial by jury.
16
In Witness Whereof, the parties have executed this Agreement on the day and year first
above written.
/s/ Xxxxxxxxx Xxxx |
||
Name: Xxxxxxxxx Xxxx |
||
Title: President & CEO |
||
/s/ Xxxx X. Xxxxxxxxxx |
||
Xxxx X. Xxxxxxxxxx |
17
Exhibit A
Proprietary Information And Inventions Agreement
18
EMPLOYEE PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
In consideration of my employment or continued employment by Micromet, Inc., its subsidiaries,
parents, affiliates, successors and assigns (together, the “Company”) and the compensation now and
hereafter paid to me, I hereby enter into this Proprietary Information and Inventions Agreement
(the “Agreement”) and agree as follows:
1. Nondisclosure.
1.1 Recognition of the Company’s Rights; Nondisclosure. I understand and acknowledge that my
employment by the Company creates a relationship of confidence and trust with respect to the
Company’s Proprietary Information (defined below) and that the Company has a protectable interest
therein. At all times during my employment and thereafter, I will hold in strictest confidence and
will not disclose, use, lecture upon or publish any of the Company’s Proprietary Information,
except as such disclosure, use or publication may be required in connection with my work for the
Company, or unless an officer of the Company expressly authorizes such in writing. I will obtain
the Company’s written approval before publishing or submitting for publication any material
(written, verbal, or otherwise) that relates to my work at the Company and/or incorporates any
Proprietary Information. I hereby assign to the Company any rights I may have or acquire in such
Proprietary Information and recognize that all Proprietary Information will be the sole property of
the Company and its assigns. I will take all reasonable precautions to prevent the inadvertent or
accidental disclosure of Proprietary Information.
1.2 Proprietary Information. The term “Proprietary Information” will mean any and all
confidential and/or proprietary knowledge, data or information of the Company, its affiliates,
parents and subsidiaries, whether having existed, now existing, or to be developed during my
employment. By way of illustration but not limitation, “Proprietary Information” includes
(a) trade secrets, inventions, mask works, ideas, processes, formulas, source and object codes,
data, programs, other works of authorship, know-how, improvements, discoveries, developments,
designs and techniques and any other proprietary technology and all Proprietary Rights therein
(hereinafter collectively referred to as “Inventions”); (b) information regarding research,
development, new products, marketing and selling, business plans, budgets and unpublished financial
statements, licenses, prices and costs, margins, discounts, credit terms, pricing and billing
policies, quoting procedures, methods of obtaining business, forecasts, future plans and potential
strategies, financial projections and business strategies, operational plans, financing and
capital-raising plans, activities and agreements, internal services and operational manuals,
methods of conducting the Company business, suppliers and supplier information, and purchasing; (c)
information regarding customers and potential customers of the Company, including customer lists,
names, representatives, their needs or desires with respect to the types of products or services
offered by the Company, proposals, bids, contracts and their contents and parties, the type and
quantity of products and services provided or sought to be provided to customers and potential
customers of the Company and other non-public information relating to customers and potential
customers; (d) information regarding any of the Company’s business partners and their services,
including names; representatives, proposals, bids, contracts and their contents and parties, the
type and quantity of products and services received by the Company, and other non-public
information relating to business partners; (e) information regarding personnel, employee lists,
compensation, and employee skills; and (f) any other non-public information which a competitor of
the Company could use to the competitive disadvantage of the Company. Notwithstanding the
foregoing, it is understood that, at all such times, I am free to use information which is
generally known in the trade or industry through no breach of this agreement or other act or
omission by me, and I am free to discuss the terms and conditions of my employment with others to
the extent permitted by law.
1.3 Third Party Information. I understand, in addition, that the Company has received and in
the future will receive from third parties their confidential and/or proprietary knowledge, data,
or information (“Third Party Information”). During my employment and thereafter, I will hold Third
Party Information in the strictest confidence and will not disclose to anyone (other than the
Company personnel who need to know such information in connection with their work for the Company)
or use, except in connection with my work for the Company, Third Party Information unless expressly
authorized by an officer of the Company in writing.
A-1.
1.4 Term of Nondisclosure Restrictions. I understand that Proprietary Information and Third
Party Information is never to be used or disclosed by me, as provided in this Section 1. If,
however, a court decides that this Section 1 or any of its provisions is unenforceable for lack of
reasonable temporal limitation and the Agreement or its restriction(s) cannot otherwise be
enforced, I agree and the Company agrees that the two (2) year period after the date my employment
ends will be the temporal limitation relevant to the contested restriction, provided, however, that
this sentence will not apply to trade secrets protected without temporal limitation under
applicable law.
1.5 No Improper Use of Information of Prior Employers and Others. During my employment by the
Company I will not improperly use or disclose any confidential information or trade secrets, if
any, of any former employer or any other person to whom I have an obligation of confidentiality,
and I will not bring onto the premises of the Company any unpublished documents or any property
belonging to any former employer or any other person to whom I have an obligation of
confidentiality unless consented to in writing by that former employer or person.
2. Assignment of Inventions.
2.1 Proprietary Rights. The term “Proprietary Rights” will mean all trade secrets, patents,
copyrights, trade marks, mask works and other intellectual property rights throughout the world.
2.2 Prior Inventions. Inventions, if any, patented or unpatented, which I made prior to the
commencement of my employment with the Company are excluded from the scope of this Agreement. To
preclude any possible uncertainty, I have set forth on Exhibit A (Previous Inventions) attached
hereto a complete list of all Inventions that I have, alone or jointly with others, conceived,
developed or reduced to practice or caused to be conceived, developed or reduced to practice prior
to the commencement of my employment with the Company, that I consider to be my property or the
property of third parties, and that I wish to have excluded from the scope of this Agreement
(collectively referred to as “Prior Inventions”). If disclosure of any such Prior Invention would
cause me to violate any prior confidentiality agreement, I understand that I am not to list such
Prior Inventions in Exhibit A but am only to disclose a cursory name for each such invention, a
listing of the party(ies) to whom it belongs and the fact that full disclosure as to such
inventions has not been made for that reason. A space is provided on Exhibit A for such purpose.
If no such disclosure is attached, I represent that there are no Prior Inventions. If, in the
course of my employment with the Company, I incorporate a Prior Invention into a Company product,
process or machine, the Company is hereby granted and shall have a nonexclusive, royalty-free,
irrevocable, perpetual, fully-paid, worldwide license (with rights to sublicense through multiple
tiers of sublicensees) to make, have made, modify, make derivative works of, publicly perform,
publicly perform, use, sell, import, and exercise any and all present and future rights in such
Prior Invention. Notwithstanding the foregoing, I agree that I will not incorporate, or permit to
be incorporated, Prior Inventions in any Company Inventions without the Company’s prior written
consent.
2.3 Assignment of Inventions. Subject to Subsections 2.4 and 2.6, I hereby assign and agree
to assign in the future (when any such Inventions or Proprietary Rights are first reduced to
practice or first fixed in a tangible medium, as applicable) to the Company all my right, title and
interest in and to any and all Inventions (and all Proprietary Rights with respect thereto) whether
or not patentable or registrable under copyright or similar statutes, made or conceived or reduced
to practice or learned by me, either alone or jointly with others, during the period of my
employment with the Company. Inventions assigned to the Company, or to a third party as directed
by the Company pursuant to this Section 2, are hereinafter referred to as “Company Inventions.”
2.4 Unassigned or Nonassignable Inventions. I recognize that this Agreement will not be
deemed to require assignment of any Invention that I developed entirely on my own time without
using the Company’s equipment, supplies, facilities, trade secrets, or Proprietary Information,
except for those Inventions that either (i) relate to the Company’s actual or anticipated business,
research or development, or (ii) result from or are connected with work performed by me for the
Company. In addition, this Agreement does not apply to any Invention which qualifies fully for
protection from assignment to the Company under any specifically applicable state law, regulation,
rule, or public policy (“Specific Inventions Law”).
2.5 Obligation to Keep Company Informed. During the period of my employment and for six (6)
months after termination of my employment with the Company, I will promptly disclose to the Company
fully and
in writing all Inventions authored, conceived or reduced to practice by me, either alone or
jointly with others. In
A-2.
addition, I will promptly disclose to the Company all patent applications
filed by me or on my behalf within a year after termination of employment. At the time of each
such disclosure, I will advise the Company in writing of any Inventions that I believe fully
qualify for protection under the provisions of a Specific Inventions Law; and I will at that time
provide to the Company in writing all evidence necessary to substantiate that belief. The Company
will keep in confidence and will not use for any purpose or disclose to third parties without my
consent any confidential information disclosed in writing to the Company pursuant to this Agreement
relating to Inventions that qualify fully for protection under a Specific Inventions Law. I will
preserve the confidentiality of any Invention that does not fully qualify for protection under a
Specific Inventions Law.
2.6 Government or Third Party. I also agree to assign all my right, title and interest in and
to any particular the Company Invention to a third party, including without limitation the United
States, as directed by the Company.
2.7 Works for Hire. I acknowledge that all original works of authorship which are made by me
(solely or jointly with others) within the scope of my employment and which are protectable by
copyright are “works made for hire,” pursuant to United States Copyright Act (17 U.S.C., Section
101).
2.8 Enforcement of Proprietary Rights. I will assist the Company in every proper way to
obtain, and from time to time enforce, United States and foreign Proprietary Rights relating to the
Company Inventions in any and all countries. To that end I will execute, verify and deliver such
documents and perform such other acts (including appearances as a witness) as the Company may
reasonably request for use in applying for, obtaining, perfecting, evidencing, sustaining and
enforcing such Proprietary Rights and the assignment thereof. In addition, I will execute, verify
and deliver assignments of such Proprietary Rights to the Company or its designee. My obligation
to assist the Company with respect to Proprietary Rights relating to such the Company Inventions in
any and all countries will continue beyond the termination of my employment, but the Company will
compensate me at a reasonable rate after my termination for the time actually spent by me at the
Company’s request on such assistance.
In the event the Company is unable for any reason, after reasonable effort, to secure my signature
on any document needed in connection with the actions specified in the preceding paragraph, I
hereby irrevocably designate and appoint the Company and its duly authorized officers and agents as
my agent and attorney in fact, which appointment is coupled with an interest, to act for and in my
behalf to execute, verify and file any such documents and to do all other lawfully permitted acts
to further the purposes of the preceding paragraph with the same legal force and effect as if
executed by me. I hereby waive and quitclaim to the Company any and all claims, of any nature
whatsoever, which I now or may hereafter have for infringement of any Proprietary Rights assigned
hereunder to the Company.
3. Records. I agree to keep and maintain adequate and current records (in the form of
notes, sketches, drawings and in any other form that may be required by the Company) of all
Proprietary Information developed by me and all Inventions made by me during the period of my
employment at the Company, which records will be available to and remain the sole property of the
Company at all times.
4. Duty Of Loyalty During Employment. I agree that during the period of my employment by
the Company I will not, without the Company’s express written consent, directly or indirectly
engage in any employment or business activity which is directly or indirectly competitive with, or
would otherwise conflict with, my employment by the Company.
5. Reasonableness Of Restrictions.
5.1 I agree that I have read this entire Agreement and understand it. I agree that this
Agreement does not prevent me from earning a living or pursuing my career. I agree that the
restrictions contained in this Agreement are reasonable, proper, and necessitated by the Company’s
legitimate business interests. I represent and agree that I am entering into this Agreement freely
and with knowledge of its contents with the intent to be bound by the Agreement and the
restrictions contained in it.
A-3.
5.2 In the event that a court finds this Agreement, or any of its restrictions, to be
ambiguous, unenforceable, or invalid, I and the Company agree that the court will read the
Agreement as a whole and interpret the restriction(s) at issue to be enforceable and valid to the
maximum extent allowed by law.
5.3 If the court declines to enforce this Agreement in the manner provided in subsection 5.2,
I and the Company agree that this Agreement will be automatically modified to provide the Company
with the maximum protection of its business interests allowed by law and I agree to be bound by
this Agreement as modified.
6. No Conflicting Agreement or Obligation. I represent that my performance of all the
terms of this Agreement and as an employee of the Company does not and will not breach any
agreement to keep in confidence information acquired by me in confidence or in trust prior to my
employment by the Company. I have not entered into, and I agree I will not enter into, any
agreement either written or oral in conflict herewith.
7. Return of the Company Property. When I leave the employ of the Company, I will deliver
to the Company any and all drawings, notes, memoranda, specifications, devices, formulas, and
documents, together with all copies thereof, and any other material containing or disclosing any
Company Inventions, Third Party Information or Proprietary Information of the Company. I further
agree that any property situated on the Company’s premises and owned by the Company, including
disks and other storage media, filing cabinets or other work areas, is subject to inspection by the
Company personnel at any time with or without notice. Prior to leaving, I will cooperate with the
Company in completing and signing the Company’s termination statement if requested to do so by the
Company.
8. Notices. Any notices required or permitted hereunder will be given to the appropriate
party at the address specified below or at such other address as the party will specify in writing.
Such notice will be deemed given upon personal delivery to the appropriate address or if sent by
certified or registered mail, three (3) days after the date of mailing.
9. Notification of New Employer. In the event that I leave the employ of the Company, I
hereby consent to the notification of my new employer of my rights and obligations under this
Agreement.
10. General Provisions
10.1 Governing Law. All questions concerning the construction, validity, interpretation of
this Agreement will be governed by and construed according to the laws of the State of Maryland as
applicable to contracts made and wholly performed within the State of Maryland by residents of the
State of Maryland. I hereby expressly consent to the personal jurisdiction and venue of the state
and federal courts located in Xxxxxxxxxx County, Maryland for any lawsuit filed there against me by
Company arising from or related to this Agreement.
10.2 Severability. In case any one or more of the provisions, subsections, or sentences
contained in this Agreement will, for any reason, be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability will not affect the other
provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or
unenforceable provision had never been contained herein. If moreover, any one or more of the
provisions contained in this Agreement will for any reason be held to be excessively broad as to
duration, geographical scope, activity or subject, it will be construed by limiting and reducing
it, so as to be enforceable to the extent compatible with the applicable law as it will then
appear.
10.3 Successors and Assigns. This Agreement is for my benefit and the benefit of the Company,
its successors, assigns, parent corporations, subsidiaries, affiliates, and purchasers, and will be
binding upon my heirs, executors, administrators and other legal representatives.
10.4 Survival. The provisions of this Agreement will survive the termination of my
employment, regardless of the reason, and the assignment of this Agreement by the Company to any
successor in interest or other assignee.
10.5 Employment Status. I agree and understand that nothing in this Agreement will change my
employment status or confer any right with respect to continuation of employment by the Company,
nor will it
interfere in any way with my right or the Company’s right to terminate my employment at any
time, with or without cause or advance notice.
A-4.
10.6 Waiver. No waiver by the Company of any breach of this Agreement will be a waiver of any
preceding or succeeding breach. No waiver by the Company of any right under this Agreement will be
construed as a waiver of any other right. The Company will not be required to give notice to
enforce strict adherence to all terms of this Agreement.
10.7 Advice of Counsel. I ACKNOWLEDGE THAT, IN EXECUTING THIS AGREEMENT, I HAVE HAD THE
OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND I HAVE READ AND UNDERSTOOD ALL OF
THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT WILL NOT BE CONSTRUED AGAINST ANY PARTY
BY REASON OF THE DRAFTING OR PREPARATION HEREOF.
10.8 Entire Agreement. The obligations pursuant to Sections 1 and 2 (except Subsection 2.7)
of this Agreement will apply to any time during which I was previously engaged, or am in the future
engaged, by the Company as a consultant if no other agreement governs nondisclosure and assignment
of inventions during such period. This Agreement is the final, complete and exclusive agreement of
the parties with respect to the subject matter hereof and supersedes and merges all prior
discussions between us. No modification of or amendment to this Agreement, nor any waiver of any
rights under this Agreement, will be effective unless in writing and signed by the party to be
charged. Any subsequent change or changes in my duties, salary or compensation will not affect the
validity or scope of this Agreement.
I have read this agreement carefully and understand its terms. I have completely filled out
Exhibit A to this Agreement.
Dated:
| (Signature) | ||||
| (Printed Name) | ||||
| Accepted and Agreed To: | ||||
| Micromet, inc. | ||||
By: |
||||
Title: |
||||
A-5.
Exhibit A
Previous Inventions
TO:
|
Micromet, Inc. | |
FROM: |
||
DATE: |
||
SUBJECT:
|
Previous Inventions |
1. Except as listed in Section 2 below, the following is a complete list of all inventions or
improvements relevant to the subject matter of my employment by [Company] (the “Company”) that have
been made or conceived or first reduced to practice by me alone or jointly with others prior to my
engagement by the Company:
| o | No inventions or improvements. | ||
| o | See below: | ||
o Additional sheets attached.
2. Due to a prior confidentiality agreement, I cannot complete the disclosure under Section 1 above
with respect to inventions or improvements generally listed below, the proprietary rights and duty
of confidentiality with respect to which I owe to the following party(ies):
| Invention or Improvement | Party(ies) | Relationship | ||||||||||
1. |
||||||||||||
2. |
||||||||||||
3. |
||||||||||||
o Additional sheets attached.
A-6.
Exhibit B
RELEASE AGREEMENT
This Release of Claims (Release”) is made as of by and between Xxxx X. Xxxxxxxxxx
(“the Executive”) and Micromet, Inc. (the “Company”) (together, the “Parties”).
1. In consideration for Executive’s execution of this Release, the Company will make a
severance payment to Executive in the amount of $ , subject to standard payroll
deductions and withholdings. This payment will be made in a lump sum on the first business day
which occurs at least eight days following the Company’s receipt of Executive’s executed Agreement.
If Executive timely elects and remains eligible for continued coverage under COBRA, or applicable
state coverage continuation laws, the Company will pay that portion of Executive’s heath coverage
premiums it was paying prior to the Separation Date for ___ months or for the continuation period,
whichever is shorter.
2. Executive hereby releases, acquits and forever discharges the Company, its parents and
subsidiaries, and their officers, directors, agents, servants, employees, stockholders, successors,
assigns and affiliates, of and from any and all claims, liabilities, demands, causes of action,
costs, expenses, attorneys fees, damages, indemnities and obligations of every kind and nature, in
law, equity, or otherwise, which were known or through reasonable diligence should have been known,
arising out of or in any way related to Releases, events, acts or conduct at any time prior to the
date Executive executes this Settlement Release, including, but not limited to: all such claims
and demands directly or indirectly arising out of or in any way connected with Executive’s
employment with the Company, including but not limited to, claims of intentional and negligent
infliction of emotional distress, any and all tort claims for personal injury, claims or demands
related to salary, bonuses, commissions, stock, stock options, or any other ownership interests in
the Company, vacation pay, fringe benefits, expense reimbursements, severance pay, or any other
form of compensation; claims pursuant to any federal, state or local law or cause of action
including, but not limited to, any and all claims and causes of action that the Company, its
parents and subsidiaries, and its and their respective officers, directors, agents, servants,
employees, attorneys, shareholders, successors, assigns or affiliates:
| • | has violated its personnel policies, handbooks, contracts of employment, or covenants of good faith and fair dealing; | ||
| • | has discriminated against him on the basis of age, race, color, sex (including sexual harassment), national origin, ancestry, disability, religion, sexual orientation, marital status, parental status, source of income, entitlement to benefits, any union activities or other protected category in violation of any local, state or federal law, constitution, ordinance, or regulation, including but not limited to: Title VII of the Civil Rights Act of 1964, as amended; 42 U.S.C. § 1981, as amended; the Equal Pay Act; the Americans With Disabilities Act; the Family and Medical Leave Act; the Employee Retirement Income Security Act; Section 510; and the National Labor Relations Act; |
| • | has violated any statute, public policy or common law (including but not limited to claims for retaliatory discharge; negligent hiring, retention or supervision; defamation; intentional or negligent infliction of emotional distress and/or mental anguish; intentional interference with contract; negligence; detrimental reliance; loss of consortium to him or any member of his/her family and/or promissory estoppel). |
Excluded from this Release are any claims which cannot be waived by law. Executive is waiving,
however, his/her right to any monetary recovery should any governmental agency or entity, such as
the EEOC or the DOL, pursue any claims on his/her behalf. Executive acknowledges that you he/she
is knowingly and voluntarily waiving and releasing any rights he/she may have under the ADEA, as
amended. Executive also acknowledges that (i) the consideration given to his/her in exchange for
the waiver and release in this Release is in addition to anything of value to which he/she was
already entitled, and (ii) that he/she has been paid for all time worked, have received all the
leave, leaves of absence and leave benefits and protections for which he/she is eligible, and have
not suffered any on-the-job injury for which he/she has not already filed a claim. Executive
further acknowledges that he/she has been advised by this writing that: (a) his/her waiver and
release do not apply to any rights or claims that may arise after the execution date of this
Release; (b) he/she has been advised hereby that he/she has the right to consult with an attorney
prior to executing this Release; (c) he/she has twenty-one (21) days to consider this Release
(although Executive may choose to voluntarily execute this Release earlier and if he/she does
he/she will sign the Consideration Period waiver below); (d) he/she has seven (7) days following
his/her execution of this Release to revoke the Release; and (e) this Release shall not be
effective until the date upon which the revocation period has expired unexercised, which shall be
the eighth day after Executive executes this Release.
3. On or before the last day of Executive’s employment, Executive agrees to return to the
Company all Company documents (and all copies thereof) and other Company property that Executive
has had in his/her possession at any time, including, but not limited to, Company files, notes,
drawings, records, business plans and forecasts, financial information, specifications,
computer-recorded information, tangible property (including, but not limited to, computers), credit
cards, entry cards, identification badges and keys; and, any materials of any kind that contain or
embody any proprietary or confidential information of the Company (and all reproductions thereof).
Executive shall coordinate the return of Company property with [name/title].
4. Executive further agrees that both during and after Executive’s employment Executive
acknowledges his/her continuing obligations under his/her Proprietary Information, Inventions and
Non-Competition Agreement not to use or disclose any confidential or proprietary information of the
Company and to refrain from certain solicitation and competitive activities.
5. It is understood that Executive shall hold the provisions of this Release in strictest
confidence and shall not publicize or disclose it in any manner whatsoever; provided, however,
that: (a) Executive may disclose this Release to his/her immediate family; (b) Executive may
disclose this Release in confidence to his/her attorney, accountant, auditor, tax preparer, and
financial advisor; and (c) Executive may disclose this Release insofar as such disclosure may be
required by law.
6. Executive agrees not to disparage the Company, and the Company’s attorneys, directors,
managers, partners, employees, agents and affiliates, in any manner likely to be harmful to them or
their business, business reputation or personal reputation; provided that Executive may respond
accurately and fully to any question, inquiry or request for information when required by legal
process.
7. This Release does not constitute an admission by the Company of any wrongful action or
violation of any federal, state, or local statute, or common law rights, including those relating
to the provisions of any law or statute concerning employment actions, or of any other possible or
claimed violation of law or rights.
8. Executive agrees that upon any breach of this Release Executive will forfeit all amounts
paid or owing to Executive under this Release. Executive further acknowledges that it may be
impossible to assess the damages caused by violation of the terms of paragraphs 3, 4, 5 and 6 of
this Release and further agree that any threatened or actual violation or breach of those
paragraphs of this Release will constitute immediate and irreparable injury to the Company.
Executive therefore agrees that any such breach of this Release is a material breach of this
Release, and, in addition to any and all other damages and remedies available to the Company upon
Executive’s breach of this Release, the Company shall be entitled to an injunction to prevent
Executive from violating or breaching this Release. Executive agrees that if the Company is
successful in whole or part in any legal or equitable action against Executive under this Release,
Executive agree to pay all of the costs, including reasonable attorney’s fees, incurred by the
Company in enforcing the terms of this Release.
9. This Release constitutes the complete, final and exclusive embodiment of the entire Release
between the Parties with regard to this subject matter. It is entered into without reliance on any
promise or representation, written or oral, other than those expressly contained herein, and it
supersedes any other such promises, warranties or representations. This Release may not be
modified or amended except in a writing signed by both Executive and a duly authorized officer of
the Company. This Release will bind the heirs, personal representatives, successors and assigns of
the Parties, and inure to the benefit of the Parties, their heirs, successors and assigns. If any
provision of this Release is determined to be invalid or unenforceable, in whole or in part, this
determination will not affect any other provision of this Release and the provision in question
will be modified by the court so as to be rendered enforceable. This Release will be deemed to
have been entered into and will be construed and enforced in accordance with the laws of the State
of Maryland as applied to contracts made and to be performed entirely within Maryland.
In Witness Whereof, the Parties have duly authorized and caused this Agreement to be
executed as follows:
| Micromet, Inc. | Xxxx X. Xxxxxxxxxx, an Individual | |||||
By: |
||||||
| Name | ||||||
| Title | ||||||
Date:
|
Date: | |||||
Exhibit C
DEATH BENEFITS RECIPIENTS
Primary Beneficiary:
|
Amount of Payment pursuant to Section 7.5 | |
[ ]
|
[___]% | |
| Secondary Beneficiary (if Primary Beneficiary pre-deceased): | ||
[ ]
|
[___]% | |
[ ]
|
[___]% | |
-i-
