EMPLOYMENT AGREEMENT
AGREEMENT dated as of September 4, 1998 between UNIVEC, Inc., a
Delaware corporation (the "Company"), having its principal office at 000
Xxxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxx 00000, and Xxxx Xxxxxxxxxx, an individual
(the "Employee") residing at 0 Xxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx 00000.
WHEREAS, the Employee has been employed by the Company as Chairman of
the Board and Chief Executive since August 1992, and since January 1, 1997, the
Employee has been employed by the Company pursuant to the terms of an Employment
Agreement dated as of January 1, 1997 (the "1997 Agreement"), that provides for
the employment of the Employee until March 28, 2000;
WHEREAS, the Company desires to extend the term of the employment of
the Employee and Employee agrees to continue his employment with the Company
until March 28, 2003, on the terms and conditions herein provided;
NOW THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
1. Employment and Duties. During the term of this Agreement, the
Employee shall serve as the Company's Chairman of the Board and Chief Executive
Officer, and in such capacity shall be the principal executive officer of the
Company.
2. Term. Subject to the termination provisions of Section 5 hereof,
Employee's employment by the Company hereunder is for a term commencing on the
date hereof and ending on March 28, 2003 (the "Employment Term").
3. Compensation. (a) During the Employment Term, the Company shall pay
the Employee for his services hereunder at a base salary of $192,000 per annum
plus a 10% per annum increase. The base salary shall be paid to the Employee in
appropriate installments in accordance with the Company's usual and customary
payroll practices for its executive officers.
(b) In consideration for the Employee entering into
this agreement extending the term of his employment with the Company until March
28, 2003, the Company agrees to grant the Employee stock options to purchase an
aggregate of 2,130,000 shares of its common stock, $.001 par value, pursuant to
its Amended 1996 Stock Option Plan (the "Plan"), which options shall be
exercisable at any time on or before March 28, 2003, at an exercise price of
$1.75 per share (the "New Options"). Employee agrees to surrender for
cancellation the 2,130,000 performance stock options previously granted to him
pursuant to the Plan as a condition to the grant of the New Options.
4. Benefits. During the term hereof, the Company shall continue to
reimburse the Employee for automobile lease payments under the vehicle lease
with Jaguar Credit Corporation (the "Vehicle Lease") or alternatively, to
provide the Employee with an automobile allowance of $10,800 per annum. If at
the expiration of the Vehicle Lease the Employee elects to exercise the purchase
option set forth therein, the Company will pay the Employee an amount equal to
the fair market value of the leased vehicle so as to enable him to exercise said
purchase option. The Company also will provide the Employee during the term
hereof with life, disability and health insurance benefits with coverages no
less favorable than those in effect on the date hereof. Employee also shall be
entitled to participate in any and all benefit plans of the Company made
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available to executive officers of the Company. The Company also shall make
available to the Employee a membership in a country club.
5. Reimbursement. During the Employment Term, the Company shall
reimburse the Employee for all reasonable and necessary business expenses
incurred and paid directly by him in the performance of his duties hereunder,
upon submission to the Company of reasonably detailed expense reports and
appropriate vouchers and/or receipts prepared in accordance with the applicable
provisions and regulations of the Internal Revenue Code of 1986, as amended.
6. Termination. Notwithstanding any provision of this Agreement to the
contrary, the Employee's employment hereunder shall terminate immediately upon
the death of the Employee. Except as otherwise specifically provided herein or
as accrued for services performed through the date of termination, all of
Employee's rights to compensation hereunder shall cease to exist effective upon
the date of termination.
7. Developments. The Employee agrees promptly to disclose in writing to
the Company any invention or discovery made by him during his employment with
the Company, whether during or after working hours, that relates to (i) any
disposable medical devices for drug delivery, including but not limited to
hypodermic needles, (ii) inventions developed for the Company through projects
participated in by Employee and (iii) processes, including equipment used to
produce items covered by clauses (i) and (ii) (the items referred to in clauses
(i), (ii) and (iii) being hereinafter referred to collectively as "Covered
Inventions"), and such inventions and discoveries shall be the Company's sole
property. Upon the Company's request, whether during or after the term of his
employment, Employee shall execute and assign to the Company all applications
for letters patent and copyrights of the United States and such foreign
countries as the Company may designate
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relating to Covered Inventions, and Employee shall execute and deliver to the
Company such other instruments as the Company deems necessary to vest in the
Company the sole ownership of all exclusive rights in and to such inventions and
discoveries, as well as the patents and/or copyrights. If services in connection
with applications for patents and/or copyrights are performed by Employee at the
Company's request after the termination of his employment, the Company shall pay
him reasonable compensation for such services rendered after termination of this
Agreement.
8. Non-Competition. During the Employment Term and for a period of
twelve (12) months after the termination of this Agreement, however occasioned,
Employee shall not within the United States, Canada, Mexico or Japan, directly
or indirectly, as principal, agent, stockholder, joint venturer, investor,
employee, consultant, officer, director, partner, adviser, guarantor or in any
other capacity, render services or provide advice relating to, or otherwise
engage in or assist others in engaging in, any Competitive Business, or own or
control any interest in any entity which is so engaged. As used herein,
"Competitive Business" means the design, manufacture, marketing, sale or
distribution of any Covered Inventions. Anything to the contrary in the
foregoing notwithstanding, (A) if at the expiration of the term hereof, the
Company does not offer to extend the term of the Employee's employment with the
Company, whether pursuant to a written employment agreement or otherwise, on
terms not less favorable to the Employee than those set forth herein, then the
restriction set forth above shall not apply following the expiration of the term
of this Agreement, and (B)Employee may own, beneficially or legally, up to one
percent (1%) of the outstanding securities of any organization registered under
Section 12 of the Securities Exchange Act of 1934, as amended, or which are
otherwise publicly traded.
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9. Non-Solicitation. The Employee agrees that he will not during the
term of this Agreement and for a period of one (1) year following the
termination of his employment with the Company for any reason, directly or
indirectly, solicit or contact any employee of the Company with a view to
encouraging such employee to leave the employ of the Company for the purpose of
being hired by him, or any employer affiliated with him, or any competitor of
the Company.
10. Confidentiality. Executive agrees that he will not, during the term
of this Agreement and thereafter, use or disclose to any individual, firm,
corporation, partnership, business trust, or other business entity (any of the
foregoing being hereinafter referred to as a "Person") any confidential or
proprietary information of the Company for any reason or purpose whatsoever, nor
shall he make use of any such confidential or proprietary information for his
own purpose or for the benefit of any Person other than the Company, including
but not limited to any and all patents (issued or pending), designs, drawings,
blueprints, manufacturing processes, specifications, test data, graphics, charts
and all other technical information, currently in existence or subsequently
developed, relating to the Company's research and development activities and
marketing strategy, or information relating to the Company's costs, pricing
practices, customer lists or financial data; except that nothing herein shall be
construed to prohibit him from complying with legal process or using or
disclosing such information if it shall have become public knowledge other than
by or as a result of disclosure by a Person not having a right to make such
disclosure.
11. Specific Performance. Employee acknowledges that the covenants set
forth in Paragraphs 7, 8, 9 and 10 are reasonable and necessary for the
protection of the Company and that his violation of any of the such provisions
shall cause the Company immediate and irreparable harm and he agrees that in
such event, an injunction restraining him from such violation or threatened
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violations may be entered against him in addition to any other remedy available
to the Company. Employee waives any right which he may otherwise have to assert
in any such proceeding that the Company has an adequate remedy at law.
12. Assignment. This Agreement shall be binding and inure to the
benefit of the Company, its successors and permitted assigns and to the
Employee, his heirs and personal representatives. However, neither this
Agreement nor any of the rights of the parties hereunder may be transferred or
assigned by either party hereto, except that if the Company merges or
consolidates with or into or sells or otherwise transfers substantially all its
assets to another corporation which assumes the Company's obligations under this
Agreement, the Company may assign its rights hereunder to that corporation. Any
other attempted transfer or assignment in violation of this paragraph shall be
void. Since this is a contract for personal services, only the Employee is
deemed capable of performing the services contemplated hereunder.
13. Waiver. The failure of a party to insist upon strict adherence to
any term of this Agreement on any occasion shall not be considered a waiver
thereof or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement. Any waiver of any
breach of any provision of this Agreement shall not constitute a waiver of any
other breach of such provision or any other provision hereof.
14. Notices. Any demand, notice or other communication under this
Agreement shall be in writing and shall be deemed duly given, and received by
the addressee at the address stated above (or at such other address as may be
specified by a party in a written notice delivered in accordance with the
provisions of this Paragraph) upon receipt, duly evidenced if (i) mailed by
certified or registered mail, return receipt requested, with postage prepaid
(ii) deposited with a
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recognized overnight courier service such as Federal Express, UPS or Express
Mail, (iii) by hand delivery, or (iv) upon the receipt of actual written notice.
15. Indemnification. Employee shall be entitled throughout the term of
this Agreement and thereafter to indemnification in respect of any actions or
omissions as an officer of the Company (or any successor pursuant to Paragraph
11 hereof) to the fullest extent permitted by the Delaware General Corporation
Law or other applicable law.
16. Entire Agreement. This Agreement constitutes the entire agreement
between the parties as of the date hereof with respect to Employee's employment
by the Company, superseding all prior or contemporaneous understandings or
agreements, oral or written, including the 1997 Agreement, which is hereby
terminated effective as of the date hereof. This Agreement may not be modified
or amended, except by subsequent written agreement of the parties which
specifically states that it is intended to be a modification, amendment or
supplement to this Agreement, and is signed by all of the parties hereto. No
course of dealing or custom shall be referred to as modifying any of the terms
and conditions of this Agreement.
17. Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York applicable to contracts
made and to be performed wholly within that State, and any action, suit or
proceeding which shall be permitted by this Agreement, or by action of law,
shall be commenced in any court having jurisdiction in New York County, or in
the United States District Court for the Southern District of New York, and the
parties hereto hereby waive any objection to jurisdiction or venue in any such
action, suit or proceeding commenced in such courts.
18. Arbitration. Except as specifically provided in Paragraph 11 of
this Agreement, any and all claims, disputes and other matters in question with
respect to, arising out of, under or
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in connection with this Agreement, including without limitation, the validity,
interpretation, performance and breach hereof, or the rights and privileges
provided by, or responsibilities and obligations under this Agreement, shall be
finally decided by arbitration in the City of New York before three (3)
arbitrators in accordance with the Rules of the American Arbitration Association
then in effect, unless the parties mutually agree otherwise. This Agreement to
arbitrate shall be specifically enforceable under the prevailing arbitration
law. The award rendered by the arbitrators shall be final, and judgment may be
entered upon it in accordance with applicable law in any court having
jurisdiction thereof. The parties agree that the arbitrators will have full
authority to award the costs of the arbitration, including attorneys' fees.
19. Severability. In the event any provision of this Agreement is held
invalid or unenforceable by any court of competent jurisdiction, such holding
shall not invalidate or render unenforceable any other provision hereof. Such
invalid or unenforceable provision shall be amended, if possible, in order to
accomplish the purposes of this Agreement.
20. Headings. The headings of the various sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed to
be a part of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
UNIVEC, INC.
By: /s/ Xxxx X. Gold
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Xx. Xxxx X. Gold
President
/s/ Xxxx Xxxxxxxxxx
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Xxxx Xxxxxxxxxx
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