EXHIBIT 10(g)
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EMPLOYMENT AGREEMENT
Employment Agreement effective as of February 10, 1997 between VIROLOGIX
CORPORATION, a Delaware corporation (with its successors and assigns, referred
to as the "Corporation"), and Xxxxx X. Xxxxxxx (referred to as "Golikov").
Preliminary Statement
The Corporation desires to employ Golikov, and Golikov wishes to be
employed by the Corporation, as President of the Corporation upon the terms and
subject to the conditions set forth in this Agreement. The Corporation and
Golikov also wish to enter into the other agreements set forth in this
Agreement, all of which are related to Golikov's employment under this
Agreement.
Agreement
Golikov and the Corporation therefore agree as follows:
1. Employment for Term. The Corporation hereby employs Golikov and Golikov
hereby accepts employment with the Corporation for the period beginning on the
date of this Agreement and ending on February 10, 1999 (the "Initial Term"), or
upon the earlier termination of the Initial Term pursuant to Section 7. This
Agreement shall be automatically renewed for an additional two-year period (the
"Renewal Term"; together with the Initial Term, the "Term") unless either party
notifies the other in writing of its intention not to so renew this Agreement no
less than 60 days prior to the expiration of the Initial Term. The end of the
Term for any reason shall end Golikov's employment under this Agreement, but
shall not terminate Golikov's or the Corporation's other agreements in this
Agreement.
2. Position and Duties. During the Term, Golikov shall serve as the
President of the Corporation or any other or additional positions and titles as
the Board of Directors of the Corporation (the "Board") may determine from time
to time. Golikov agrees that the Board may, in its discretion, change Golikov's
title and position from President to any other title or position as the Board
may determine. During the Term, Golikov shall devote all of his business time
and best efforts to his duties as an employee of the Corporation, provided,
however, that during a period of 60 days from the beginning of the Term, Golikov
may spend reasonable time, but no more than 5 hours per week, to wind up his
business affairs related to (i) Data-Stream Pharmaceuticals, Inc. and (ii)
Muzinich & Company, Inc.
3. Compensation.
(a) Base Salary. The Corporation shall pay Golikov a base salary,
beginning on the first day of the Term and ending on the last day of the Term,
of not less than $100,000 per annum, payable at least monthly on the
Corporation's regular pay cycle for professional employees.
(b) Stock Options. Pursuant to the Corporation's stock option plan,
the Corporation shall grant to Golikov 50,000 options to purchase 50,000 shares
of the Corporation's Common Stock at an exercise price of $6.00. The options
shall vest on a pro rata basis on the first, second, third and fourth
anniversaries of this Agreement. If Golikov elects not to renew this Agreement
for the Renewal Term, the remaining 25,000 "un-vested" options shall be
forfeited. If the Corporation elects not to renew this Agreement for the Renewal
Term, 50% of the remaining 25,000 "un-vested" options shall immediately vest and
50% of such options shall be forfeited.
(c) Other and Additional Compensation. Section establishes the
minimum compensation during the Term and shall not preclude the Board from
awarding Golikov a higher salary or any bonuses or stock options in the
discretion of the Board during the Term at any time.
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4. Sale of Common Stock. During the Term, Golikov agrees that his shares
of the Corporation's Common Stock will be subject to the same "lock-up" (18
months from the date of the closing of initial public offering) as the other
officers of the Corporation.
5. Employee Benefits. During the Term, Golikov shall be entitled to the
employee benefits, including vacation, health and other insurance benefits made
available by the Corporation to any other employee of the Corporation.
6. Expenses. The Corporation shall reimburse Golikov for actual out-
of-pocket expenses incurred by him in the performance of his services for the
Corporation upon the receipt of appropriate documentation of such expenses.
7. Termination.
(a) General. The Term shall end immediately upon Golikov's death.
The Term may also end for Cause or Disability, as defined in Section 7.
(b) Notice of Termination. Promptly after it ends the Term, the
Corporation shall give Golikov notice of the termination, including a statement
of whether the termination was for Cause or Disability (as defined in Section
and 7(b) below). The Corporation's failure to give notice under this Section
shall not, however, affect the validity of the Corporation's termination of the
Term.
8. Severance Benefits.
(a) "Cause" Defined. "Cause" means (i) willful malfeasance or
willful misconduct by Golikov in connection with his employment; (ii) Golikov's
gross negligence in performing any of his duties under this Agreement; (iii)
Golikov's conviction of, or entry of a plea of guilty to, or entry of a plea of
nolo contendere with respect to, any crime other than a traffic violation or
infraction which is a misdemeanor; (iv) Golikov's material breach of any written
policy applicable to all employees adopted by the Corporation; or (v) material
breach by Golikov of any of his agreements in this Agreement.
(b) Disability Defined. "Disability" shall mean Golikov's incapacity
due to physical or mental illness that results in his being unable to
substantially perform his duties hereunder for six consecutive months (or for
six months out of any nine month period). During a period of Disability, Golikov
shall continue to receive his base salary hereunder, provided that if the
Corporation provides Golikov with disability insurance coverage, payments of
Golikov's base salary shall be reduced by the amount of any disability insurance
payments received by Golikov due to such coverage. The Corporation shall give
Golikov written notice of termination which shall take effect thirty (30) days
after the date it is sent to Golikov unless Golikov shall have returned to the
performance of his duties hereunder during such thirty (30) day period
(whereupon such notice shall become void).
(c) Termination Upon Death, Disability, Golikov's Resignation or For
Cause. If the Corporation ends the Term for Cause or Disability, or if Golikov
resigns as an employee of the Corporation, or if Golikov dies, then the
Corporation shall have no obligation to pay Golikov any amount, whether for
salary, benefits, bonuses, or other compensation or expense reimbursements of
any kind, accruing after the end of the Term, and such rights shall, except as
otherwise required by law, be forfeited immediately upon the end of the Term.
(d) Termination for Other Reasons. If the Corporation ends the Term
for reasons other than for cause, Disability, Death or Golikov's resignation,
the Corporation shall continue to be bound to the terms of this Agreement.
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9. Confidentiality, Ownership, and Covenants.
(a) "Corporation Information" and "Inventions" Defined. "Corporation
Information" means all information, knowledge or data of or pertaining to (i)
the Corporation, its employees and all work undertaken on behalf of the
Corporation, and (ii) any other person, firm, corporation or business
organization with which the Corporation may do business during the Term, that is
not in the public domain (and whether relating to methods, processes,
techniques, discoveries, pricing, marketing or any other matters). "Inventions"
collectively refers to any and all inventions, trade secrets, ideas, processes,
formulas, source and object codes, data, programs, other works of authorship,
know-how, improvements, research, discoveries, developments, designs, and
techniques regarding any of the foregoing.
(b) Confidentiality. (i) Golikov hereby recognizes that the value of
all trade secrets and other proprietary data and all other information of the
Corporation not in the public domain disclosed by the Corporation in the course
of his employment with the Corporation is attributable substantially to the fact
that such confidential information is maintained by the Corporation in strict
confidentiality and secrecy and would be unavailable to others without the
expenditure of substantial time, effort or money. Golikov therefore, except as
provided in the next two sentences, covenants and agrees that all Corporation
Information shall be kept secret and confidential at all times during and after
the end of the Term and shall not be used or divulged by him outside the scope
of his employment as contemplated by this Agreement, except as the Corporation
may otherwise expressly authorize by action of the Board. In the event that
Golikov is requested in a judicial, administrative or governmental proceeding to
disclose any of the Corporation Information, Golikov will promptly so notify the
Corporation so that the Corporation may seek a protective order or other
appropriate remedy and/or waive compliance with this Agreement. If disclosure of
any of the Corporation Information is required, Golikov may furnish the material
so required to be furnished, but Golikov will furnish only that portion of the
Corporation Information that legally is required.
(ii) Golikov also hereby agrees to keep the terms of this Agreement
confidential.
(c) Ownership. Golikov hereby assigns to the Corporation all of
Golikov's right (including patent rights, copyrights, trade secret rights, and
all other rights throughout the world), title and interest in and to Inventions,
whether or not patentable or registrable under copyright or similar statutes,
made or conceived or reduced to practice or learned by Golikov, either alone or
jointly with others, during the course of the performance of services for the
Corporation. Golikov shall also assign to, or as directed by, the Corporation,
all of Golikov's right, title and interest in and to any and all Inventions, the
full title to which is required to be in the United States government by a
contract between the Corporation and the United States government or any of its
agencies. The Corporation shall have all right, title and interest in all
research and work product produced by Golikov as an employee of the Corporation,
including, but not limited to, all research materials and lab books. The
provisions of Sections 8(a), 8(b) and this Section 8(c) are not intended to
supersede or limit the effect of any prior confidentiality or proprietary rights
agreements previously executed by Golikov.
(d) Non-Competition Period Defined. "Non-Competition Period" means
the period beginning at the end of the Term and ending one (1) year after the
end of the Term.
(e) Covenants Regarding the Term and Non-Competition Period. Golikov
acknowledges and agrees that his services pursuant to this Agreement are unique
and extraordinary; that the Corporation will be dependent upon Golikov for the
research and development of antibiotics, vaccines and anti-infectives; and that
he will have access to and control of confidential
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information of the Corporation. Golikov further acknowledges that the business
of the Corporation is national in scope and cannot be confined to any particular
geographic area of the United States. For the foregoing reasons and to induce
the Corporation to enter this Agreement, Golikov covenants and agrees that
during the Term and the Non-Competition Period Golikov shall not unless with
written consent of the Corporation:
(i) engage in the business of research and development of the Core
Technology, as defined in the License and Research Support Agreement
between the Corporation and The Rockefeller University, or any other
products or processes in which the Corporation is engaged in during the
Term or in any other business conducted by the Corporation during the Term
(collectively the "Prohibited Activity") in the United States or elsewhere
for his own account;
(ii) become interested in any individual, corporation, partnership or
other business entity (a "Person") engaged in any Prohibited Activity in
the United States, directly or indirectly, as an individual, partner,
shareholder, officer, director, principal, agent, employee, trustee,
consultant or in any other relationship or capacity; provided, however,
that Golikov may own directly or indirectly, solely as an investment,
securities of any Person which are traded on any national securities
exchange if Golikov (x) is not a controlling person of, or a member of a
group which controls, such person or (y) does not, directly or indirectly,
own 5% or more of any class of securities of such person;
(iii) directly or indirectly hire, engage or retain any person which at
any time during the Term or Non-Competition Period was a supplier, client
or customer of the Corporation, or directly or indirectly solicit, entice
or induce any such person to become, a supplier, client or customer of any
other person engaged in any Prohibited Activity; or
(iv) directly or indirectly hire, employ or retain any person who
at any time was an employee of the Corporation or directly or
indirectly solicit, entice, induce or encourage any such person to
become employed by any other person.
(f) Remedies. Golikov hereby acknowledges that the covenants and
agreements contained in Section 8 are reasonable and valid in all respects and
that the Corporation is entering into this Agreement, inter alia, on such
acknowledgment. If Golikov breaches, or threatens to commit a breach, of any of
the Restrictive Covenants, the Corporation shall have the following rights and
remedies, each of which rights and remedies shall be independent of the other
and severally enforceable, and all of which rights and remedies shall be in
addition to, and not in lieu of, any other rights and remedies available to the
Corporation under law or in equity: (i) the right and remedy to have the
Restrictive Covenants specifically enforced by any court having equity
jurisdiction, it being acknowledged and agreed that any such breach or
threatened breach will cause irreparable injury to the Corporation and that
money damages will not provide an adequate remedy to the Corporation; (ii) the
right and remedy to require Golikov to account for and pay over to the
Corporation all compensation, profits, monies, accruals, increments or other
benefits (collectively, "Benefits") derived or received by Golikov as the result
of any transactions constituting a breach of any of the Restrictive Covenants,
and Golikov shall account for and pay over such Benefits to the Corporation;
(iii) if any court determines that any of the Restrictive Covenants, or any part
thereof, is invalid or unenforceable, the remainder of the Restrictive Covenants
shall not thereby be affected and shall be given full effect, without regard to
the invalid portions; and (iv) if any court construes any of the Restrictive
Covenants, or any part thereof, to be unenforceable because of the duration of
such provision or the area covered thereby, such court shall have the power to
reduce the duration or area of such provision and, in its reduced form, such
provision shall then be enforceable and shall be enforced.
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(g) Jurisdiction. The parties intend to and hereby confer
jurisdiction to enforce the Restrictive Covenants upon the courts of any
jurisdiction within the geographical scope of such Covenants. If the courts of
any one or more such jurisdictions hold the Restrictive Covenants wholly
unenforceable by reason of the breadth of such scope or otherwise, it is the
intention of the parties that such determination not bar or in any way affect
the Corporation's right to the relief provided above in the courts of any other
jurisdiction, within the geographical scope of such Covenants, as to breaches of
such Covenants in such other respective jurisdictions such Covenants as they
relate to each jurisdiction being, for this purpose, severable into diverse and
independent covenants.
10. Successors and Assigns.
(a) Golikov. This Agreement is a personal contract, and the rights
and interests that the Agreement accords to Golikov may not be sold,
transferred, assigned, pledged, encumbered, or hypothecated by him. All rights
and benefits of Golikov shall be for the sole personal benefit of Golikov, and
no other person shall acquire any right, title or interest under this Agreement
by reason of any sale, assignment, transfer, claim or judgment or bankruptcy
proceedings against Golikov. Except as so provided, this Agreement shall inure
to the benefit of and be binding upon Golikov and his personal representatives,
distributees and legatees.
(b) The Corporation. This Agreement shall be binding upon the
Corporation and inure to the benefit of the Corporation and of its successors
and assigns, including (but not limited to) any corporation that may acquire all
or substantially all of the Corporation's assets or business or into or with
which the Corporation may be consolidated or merged. This Agreement shall
continue in full force and effect in the event that the Corporation sells all or
substantially all of its assets, merges or consolidates, otherwise combines or
affiliates with another business, dissolves and liquidates, or otherwise sells
or disposes of substantially all of its assets. The Corporation's obligations
under this Agreement shall cease, however, if the successor to, the purchaser or
acquiror either of the Corporation or of all or substantially all of its assets,
or the entity with which the Corporation has affiliated, shall assume in writing
the Corporation's obligations under this Agreement (and deliver an executed copy
of such assumption to Golikov), in which case such successor or purchaser, but
not the Corporation, shall thereafter be the only party obligated to perform the
obligations that remain to be performed on the part of the Corporation under
this Agreement.
11. Entire Agreement. This Agreement represents the entire agreement
between the parties concerning Golikov's employment with the Corporation and
supersedes all prior negotiations, discussions, understandings and agreements,
whether written or oral, between Golikov and the Corporation relating to the
subject matter of this Agreement.
12. Amendment or Modification, Waiver. No provision of this Agreement may
be amended or waived unless such amendment or waiver is agreed to in writing
signed by Golikov and by a duly authorized officer of the Corporation. No waiver
by any party to this Agreement of any breach by another party of any condition
or provision of this Agreement to be performed by such other party shall be
deemed a waiver of a similar or dissimilar condition or provision at the same
time, any prior time or any subsequent time.
13. Notices. Any notice to be given under this Agreement shall be in
writing and delivered personally or sent by overnight courier or registered or
certified mail, postage prepaid, return receipt requested, addressed to the
party concerned at the address indicated below, or to such other address of
which such party subsequently may give notice in writing:
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If to Golikov: Xxxxx X. Xxxxxxx
0000 Xxxxxxxxxx Xxx
Xxxxx, XX 00000
If to the Corporation: Virologix Corporation
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxx X. Xxxxxx
with a copy to: Xxxxxxxxx & Xxxxxx
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Any notice delivered personally or by overnight courier shall be deemed given on
the date delivered and any notice sent by registered or certified mail, postage
prepaid, return receipt requested, shall be deemed given on the date mailed.
14. Severability. If any provision of this Agreement or the application of
any such provision to any party or circumstances shall be determined by any
court of competent jurisdiction to be invalid and unenforceable to any extent,
the remainder of this Agreement or the application of such provision to such
person or circumstances other than those to which it is so determined to be
invalid and unenforceable shall not be affected, and each provision of this
Agreement shall be validated and shall be enforced to the fullest extent
permitted by law. If for any reason any provision of this Agreement containing
restrictions is held to cover an area or to be for a length of time that is
unreasonable or in any other way is construed to be too broad or to any extent
invalid, such provision shall not be determined to be entirely null, void and of
no effect; instead, it is the intention and desire of both the Corporation and
Golikov that, to the extent that the provision is or would be valid or
enforceable under applicable law, any court of competent jurisdiction shall
construe and interpret or reform this Agreement to provide for a restriction
having the maximum enforceable area, time period and such other constraints or
conditions (although not greater than those contained currently contained in
this Agreement) as shall be valid and enforceable under the applicable law.
15. Survivorship. The respective rights and obligations of the parties
hereunder shall survive any termination of this Agreement to the extent
necessary to the intended preservation of such rights and obligations.
16. Headings. All descriptive headings of sections and paragraphs in this
Agreement are intended solely for convenience of reference, and no provision of
this Agreement is to be construed by reference to the heading of any section or
paragraph.
17. Withholding Taxes. All salary, benefits, reimbursements and any other
payments to Golikov under this Agreement shall be subject to all applicable
payroll and withholding taxes and deductions required by any law, rule or
regulation of and federal, state or local authority.
18. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together constitute one and same instrument.
19. Applicable Law: Jurisdiction. The laws of the State of New York shall
govern the interpretation, validity and performance of the terms of this
Agreement, without reference to rules relating to conflicts of law. Any suit,
action or proceeding against Golikov with respect to this Agreement, or any
judgment entered by any court in respect thereof, may be brought in any court of
competent jurisdiction in the State of New York, as the Corporation may
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elect in its sole discretion, and Golikov hereby submits to the nonexclusive
jurisdiction of such courts for the purpose of any such suit, action, proceeding
or judgment.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
VIROLOGIX CORPORATION
By: /s/ Xxxxxx Xxxxxx
---------------------------
Xxxxxx Xxxxxx, President
/s/ Xxxxx X. Xxxxxxx
---------------------------
Xxxxx X. Xxxxxxx
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