EXHIBIT 10.42
EMPLOYMENT AGREEMENT
This employment Agreement (the "Agreement") is entered into as of August 10,
1998, by and between Aastrom Biosciences, Inc., a Michigan corporation
("Employer") and XXXXXXX XXXXX ("Employee").
NEW THEREFORE, the parties agree as follows:
1. EMPLOYMENT Employer hereby engages Employee, and Employee hereby
accepts such engagement, upon the terms and conditions set forth herein.
2. DUTIES Employee is engaged as Sr. Vice President Product
Operations. Employee shall perform faithfully and diligently the duties
customarily performed by persons in the position for which employee is engaged,
together with such other reasonable and appropriate duties as Employer shall
designate from time to time. Employee shall devote Employee's full business time
and efforts to the rendition of such services and to the performance of such
duties. As a full-time employee of Employer, Employee shall not be entitled to
provide consulting services or other business or scientific services to any
other party, without the prior written consent of Employer.
3. COMPENSATION
3.1 BASE SALARY During the term of this Agreement, as
compensation for the proper and satisfactory performance of all duties to be
performed by Employee hereunder, Employer shall pay Employees at an annual
salary rate of One Hundred Eighty-Five Thousand Dollars ($185,000), payable in
semi-monthly installments, less required deductions for state and federal
withholding tax, Social Security and all other employee taxes and payroll
deductions. The base salary shall be subject to review and adjustment on an
annual basis.
4. TERM
4.1 COMMENCEMENT The employment relationship pursuant to this
Agreement shall commence on or before August 17th, 1998.
4.2 TERMINATION AT WILL Although Employer and Employee anticipate a
long and mutually rewarding employment relationship, either party may terminate
this Agreement, without cause, upon fourteen (14) days' prior written notice
delivered to the other. It is expressly understood and agreed that the
employment relationship is "at will," and with no agreement for employment for
any specified term, and with no agreement for employment for so long as
Employee performs satisfactorily. Provided, however, before Employer exercises
this right of termination at will, Employer shall first either (i) discuss with
Employee the needs of Employer and why Employee no longer meets those needs, or
(ii) discuss with Employee any concerns or dissatisfactions which Employer has
with Employee's performance, and give to Employee a reasonable opportunity to
remedy those concerns or dissatisfactions, to the reasonable satisfaction of
Employer.
4.3 TERMINATION FOR CAUSE Either party may terminate this
employment relationship immediately upon notice to the other party in the event
of any good cause, such as a default, dishonesty, neglect of duties, failure to
perform by the other party, or death or disability of Employee.
4.4 PAYMENT OF COMPENSATION UPON TERMINATION Upon termination for
cause, Employee shall be entitled to the compensation set forth as "base salary"
herein, prorated to the effective date of such termination as full compensation
for any and all claims of Employee under this Agreement.
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5. FRINGE BENEFITS
5.1 CUSTOMARY FRINGE BENEFITS Employee shall be entitled
to such fringe benefits as Employer customarily makes available to employees
of Employer engaged in the same or similar position as Employee ("Fringe
Benefits"). Such Fringe Benefits may include vacation leave, sick leave, and
health insurance coverage. Employer reserves the right to change the Fringe
Benefits on a prospective basis, at any time, effective upon delivery of
written notice to Employee.
5.2 ACCUMULATION Employee shall not earn and accumulate
unused vacation in excess of Fifteen (15) days. Employee shall not earn and
accumulate sick leave or other Fringe Benefits in excess of an unused amount
equal to twice the amount earned for one year. Further, Employee shall not be
entitled to receive payments in lieu of said Fringe Benefits, other than for
unused vacation leave earned and accumulated at the time the employment
relationship terminates.
6. INVENTION, TRADE SECRETS AND CONFIDENTIALITY
6.1 DEFINITIONS
6.1.1 Invention Defined. As used herein
"Invention" means inventions, discoveries, concepts, and ideas, whether
patentable or copyrightable or not, including but not limited to processes,
methods, formulas, techniques, materials, devices, designs, programs
(including computer programs), computer graphics, apparatus, products, as well
as improvements thereof or know-how related thereto, relating to any present
or anticipated business or activities of Employer.
6.1.2 Trade Secret Defined. As used herein "Trade
Secret" means, without limitation, any document or information relating to
Employer's products, processes or services, including documents and
information relating to Inventions, and to the research, development,
engineering or manufacture of Inventions, and to Employer's purchasing,
customer or supplier lists, which documents or information have been disclosed
to Employee or known to Employee as a consequence of or through Employee's
employment by Employer (including documents, information or Inventions
conceived, originated, discovered or developed by Employee), which is not
generally known in the relevant trade or industry.
6.2 INVENTIONS
6.2.1 Disclosure. Employee shall disclose promptly
to Employer each Invention, whether or not reduced to practice, which is
conceived or learned by Employee (either alone or jointly with others) during
the term of his employment with Employer. Employee shall disclose in
confidence to Employer all patent applications filed by or on behalf of
Employee during the term of his employment and for a period of three (3)
years thereafter. Any disclosure of an Invention, or any patent application,
made within one (1) year after termination of employment shall be presumed to
relate to an Invention made during Employee's term of Employment with
Employer, unless Employee clearly proves otherwise.
6.2.2 Employer Property; Assignment. Employee
acknowledges and agrees that all Inventions which are discovered, conceived,
developed, made, produced or prepared by Employee (alone or in conjunction
with others) during the duration of Employee's employment with Employer shall
be the sole property of Employer. Said property rights of Employer include
without limitation all domestic and foreign patent rights, rights of
registration or other protection under the patent and copyright laws, and all
other rights pertaining to the Inventions. Employee further agrees that all
services, products and Inventions that directly or indirectly result from
engagement with Company shall be deemed "works for hire" as that term is
defined in Title 17 of the United States Codes, and accordingly all rights
associated therewith shall vest in the Company. Notwithstanding the foregoing,
Employee hereby assigns to Employer all of Employee's right, title and
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interest in any such services, products and Inventions, in the event any such
services, products and Inventions shall be determined not to constitute "works
for hire."
6.2.3 Exclusion Notice. The Assignment by Employee of
Inventions under this Agreement does not apply to any Inventions which are owned
or controlled by Employee prior to the commencement of employment of Employee by
Employer (all of which are set forth on Exhibit "A" hereto). Additionally,
Employee is not required to assign an idea or invention where the Invention or
idea meets all of the following criteria; namely if the invention or idea: (i)
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was created or conceived without the use of any of Employer's equipment,
supplies, facilities, or trade secret information, and (ii) was developed
entirely on Employee's own time, and (iii) does not relate to the business of
Employer, and (iv) does not relate to Employer's actual or demonstrably
anticipated research or development, and (v) does not result from any work
performed by Employee for Employer.
6.2.4 Patents and Copyrights; Attorney-in-Fact. Both before
and after termination of this Agreement (and with reasonable compensation paid
by Employer to Employee after termination), Employee agrees to assist the
Employer to apply for, obtain and enforce patents on, and to apply for, obtain
and enforce copyright protection and registration of, the Inventions described
in Section 6.2.2 in any and all countries. To that end, Employee shall (at
Employer's request) without limitation, testify in any proceeding, and execute
any documents and assignments determined to be necessary or convenient for use
in applying for, obtaining, registering and enforcing patent or copyright
protection involving any of the Inventions. Employee hereby irrevocably
appoints Employer, and its duly authorized officers and agents, as Employee's
agent and attorney-in-fact, to act for and in behalf of Employee in filing all
patent applications, applications for copyright protection and registration,
amendments, renewals, and all other appropriate documents in any way related
to the Inventions described in Section 6.2.2.
6.3 TRADE SECRETS
6.3.1 Acknowledgment of Proprietary Interest. Employee
recognizes the proprietary interest of Employer in any Trade Secrets of
Employer. Employee acknowledges and agrees that any and all Trade Secrets of
Employer, whether developed by Employee alone or in conjunction with others or
otherwise, shall be and are the property of Employer.
6.3.2 Covenant Not to Divulge Trade Secrets. Employee
acknowledges and agrees that Employer is entitled to prevent the disclosure of
Trade Secrets of Employer. As a portion of the consideration for the
employment of Employee and for the compensation being paid to Employee by
Employer, Employee agrees at all times during the term of the employment by
Employer and thereafter to hold in strictest confidence, and not to use,
disclose or allow to be disclosed to any person, firm, or corporation, Trade
Secrets of Employer, including Trade Secrets developed by Employee, other than
disclosures to persons engaged by Employer to further the business of
Employer, and other than use in the pursuit of the business of Employer.
6.3.3 Confidential Information of Others. Employee
represents and warrants that if Employee had any confidential information
belonging to others, Employee will not use or disclose to Employer any such
information or documents. Employee represents that his employment with
Employer will not require him to violate any obligation to or confidence with
any other party.
6.4 NO ADVERSE USE Employee will not at any time use Employer's
Trade Secrets or Inventions in any manner which may directly or indirectly have
an adverse effect upon Employer's business, nor will Employee perform any acts
which would tend to reduce Employer's proprietary value in Employer's Trade
Secrets or Inventions.
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6.5 RETURN OF MATERIALS AT TERMINATION In the event of any
termination of Employee's employment, Employee will promptly deliver to Employer
all materials, property, documents, data, and other information belonging to
Employer or pertaining to Trade Secrets or Inventions. Employee shall not take
any materials, property, documents or other information, or any reproduction or
excerpt thereof, belonging to Employer or containing or pertaining to any Trade
Secrets or Inventions.
6.6 REMEDIES UPON BREACH In the event of any breach by Employee
of the provision in this Section 6, Employer shall be entitled, if it so
elects, to institute and prosecute proceedings in any court of competent
jurisdiction, either in law or in equity, to enjoin Employee from violating
any of the terms of this Section 6, to enforce the specific performance by
Employee of any of the terms of this Section 6, and to obtain damages for any
of them, but nothing herein contained shall be construed to prevent such
remedy or combination of remedies as Employer may elect to Invoke. The failure
of Employer to promptly institute legal action upon any breach of this Section
6 shall not constitute a waiver of that or any other breach hereof.
7. COVENANT NOT TO COMPETE Employee agrees that, during Employee's
employment, Employee will not directly or indirectly compete with Employer in
any way, and that Employee will not act as an officer, director, employee,
consultant, shareholder, lender or agent of any other entity which is engaged in
any business of the same nature as, or in competition with, the business in
which Employer is now engaged, or in which Employer becomes engaged during the
term of Employee's employment, or which is involved in science or technology
which is similar to Employer's science or technology.
8. GENERAL PROVISIONS
8.1 ATTORNEYS' FEES In the event of any dispute or breach arising
with respect to this Agreement, the party prevailing in any negotiations or
proceedings for the resolution or enforcement thereof shall be entitled to
recover from the losing party reasonable expenses, attorneys' fees and costs
incurred therein.
8.2 AMENDMENTS No amendment or modification of the terms or
conditions of this Agreement shall be valid unless in writing and signed by both
parties hereto. There shall be no implied-in-fact contracts modifying the terms
of this Agreement.
8.3 ENTIRE AGREEMENT This Agreement constitutes the entire
agreement between the parties with respect to the employment of Employee. This
Agreement supersedes all prior agreements, understandings, negotiations and
representation with respect to the employment relationship.
8.4 SUCCESSORS AND ASSIGNS The Rights and obligations of
Employer under this Agreement shall inure to the benefit of and shall be
binding upon the successors and assigns of Employer. Employee shall not be
entitled to assign any of Employee's rights or obligations under this
Agreement.
8.5 WAIVER Either party's failure to enforce any provision of this
Agreement shall not in any way be construed as a waiver of any such provision,
or prevent that party thereafter from enforcing each and every other provision
of this Agreement.
8.6 SEVERABLE PROVISIONS The provisions of this Agreement are
severable, and if any or more provisions may be determined to be judicially
unenforceable, in whole or in part, the remaining provisions shall nevertheless
be binding and enforceable.
8.7 EMPLOYMENT ELIGIBILITY During the term of this Agreement,
Employee shall maintain citizenship in the United States or documentation to
establish employment eligibility in compliance with the Federal Immigration
Reform and Control Act of 1986.
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9. EMPLOYEE'S REPRESENTATIONS Employee represents and warrants
that Employee (i) is free to enter this Agreement and to perform each of the
terms and covenants contained herein, (ii) is not restricted or prohibited,
contractually or otherwise, from entering into and performing this Agreement,
and (iii) will not be in violation or breach of any other agreement by reason
of Employee's execution and performance of this Agreement.
IN WITNESS THEREOF, the parties have executed this Agreement as of the
date set forth above.
EMPLOYER:
Aastrom Biosciences, Inc.
By: /s/ R. Xxxxxxx Xxxxxxxxx
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R. Xxxxxxx Xxxxxxxxx, Ph.D.
President and Chief Executive Officer
EMPLOYEE:
/s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
Address: 570 Chateaux Brione Dr.
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Xxxxxxxxxx, XX 00000
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EXHIBIT A
List of Prior Inventions
(Section 6.2.3)
None, other than the following:
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