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EXHIBIT 10.6
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of August 27, 1991 between ONCOGENE SCIENCE,
INC., a Delaware corporation having a place of business at 000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxx, Xxx Xxxx 00000 (the "Company"), and Xxxxxx X. Xxxxxxxx,
who resides at 0 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxxxxx 00000 ("Executive").
W I T N E S S E T H:
WHEREAS, the Company desires to engage Executive to perform services for
the Company and any subsidiary or affiliate of the Company, and Executive
desires to perform such services, on the terms and conditions hereinafter set
forth;
NOW, THEREFORE, the Company and Executive, in consideration of the mutual
promises contained herein and other good and valuable consideration, the
receipt, adequacy and sufficiency of which are hereby acknowledged, hereby agree
as follows:
1. TERM
The Company hereby employs Executive, and Executive hereby accepts such
employment, upon the terms and conditions hereinafter set forth. Executive shall
perform the duties required of him hereunder during the period commencing upon
closing of the acquisition of Applied bioTechnology, Inc. by Oncogene Science,
Inc. and ending on September 30, 1994; provided, however, that on September 30,
1994, and on each September 30 thereafter, such period shall be automatically
extended by one additional year unless at least 60 days prior to any such
September 30 either party shall deliver to the other written notice that such
period will not be extended, in which case this Agreement will terminate upon
the expiration of the existing term of this Agreement, including any previous
extension. The period during which Executive shall perform the services required
of him hereunder (as same may be extended as provided in this Section 1 or
reduced as hereinafter provided) is hereinafter referred to as the "Employment
Period."
2. DUTIES
(a) Executive shall serve, at the pleasure of the Board of Directors of the
Company, as Executive Vice President and Chief Operating Officer for Oncogene
Science, Inc. Executive shall also serve as President and a Director of Applied
bioTechnology, Inc. which will be a wholly-owned subsidiary of Oncogene Science,
Inc. In his capacities as Executive Vice President and Chief Operating Officer
for Oncogene Science, Inc. and President of Applied bioTechnology, Inc.,
Executive shall perform for the Company, and any subsidiary or affiliate of the
Company, such duties generally associated with such positions as well as such
other duties consistent with such positions as may be prescribed from time to
time by the President of Oncogene Science, Inc.
(b) Executive agrees to devote his full time, labor, energies and attention
to the performance of his duties hereunder, subject to the provisions of
Paragraph 10(a) hereof.
(c) Executive agrees not to become involved in any personal investment or
business matters which may detract from the performance of his duties or
otherwise adversely affect the Company or any subsidiary or affiliate of the
Company.
3. PLACE OF PERFORMANCE
In connection with his employment by the Company, Executive shall
proportion his time between the Company's headquarters in Uniondale, New York
and offices of its subsidiary, Applied biotechnology, Inc. in Cambridge,
Massachusetts as required. Executive shall also be available to travel at such
times and to such places as may be reasonably necessary in connection with the
performance of his duties hereunder.
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4. COMPENSATION
(a) Base Salary. During the Employment Period, Executive shall receive a
minimum base salary at the annual rate of $160,000 plus such other amounts, if
any, as the Board of Directors of the Company, in its sole discretion, may from
time to time determine. Executive's base salary shall be reviewed annually;
provided, however, that in no event shall Executive's base salary be reduced
below an annual rate of $160,000. Executive's salary shall be payable in
bi-weekly installments or at such other frequency as the Company may from time
to time determine for its senior executive officers as a group.
(b) Incentive Compensation Plan. In addition to his base salary, Executive
will participate in a Management Incentive Compensation Plan, a discretionary
bonus award program to be approved annually by the Board of Directors, and in
any other bonus or incentive compensation plan in which senior executive
employees are entitled to participate.
5. STOCK OPTIONS
Executive shall be eligible to receive stock options as the Board of
Directors of the Company shall determine in its sole discretion.
6. EXPENSES
During the Employment Period, Executive shall be entitled to reimbursement for
all reasonable out-of-pocket expenses necessarily incurred in performing
services hereunder within the limits of authority which may be established from
time to time by the Board of Directors, provided that Executive properly
accounts for such expenses in accordance with Company policy.
7. EMPLOYEE BENEFITS
(a) Vacation. Executive shall be entitled to four weeks paid vacation per
calendar year which may be taken at such time or times as Executive may elect,
subject to the needs of the Company's business. Executive shall also be entitled
to all paid holidays given by the Company to its senior executive officers.
(b) Savings Plan. To the extent permitted by the Company's Savings and
Investment Plan, as amended (the "Savings Plan"), Executive may roll-over into
the Savings Plan amounts held for his account pursuant to any plan established
pursuant to Section 401(k) of the Code.
(c) Other Benefits. Executive shall be entitled to participate in such
term life insurance, basic medical, major medical, dental and other employee
benefit plans established by the Company from time to time and generally made
available to employees at levels similar to Executive's for which he meets the
eligibility requirements.
8. TERMINATION
(a) The Company may terminate this Agreement at any time after the first
anniversary of the date of commencement of the Employment Period, and for any
reason whatsoever (or for no reason), by giving not less than 30 days' prior
written notice to Executive. In the event this Agreement is terminated by the
Company other than for a reason set forth in Paragraph 8(b) hereof, (i)
Executive shall be entitled to receive his base salary at the rate in effect on
the date notice of termination is given through the effective date of such
termination and any Annual Award or other bonus payment granted through such
date which has not yet been paid and (ii) Executive shall continue to receive
his base salary and all benefits at the rate in effect on the date notice of
termination is given (x) for the nine months immediately succeeding the
effective date of such termination in the case of a termination which takes
effect between the first and second anniversaries of the date of commencement of
the Employment Period; and (y) for the six months immediately succeeding the
effective date of such termination in the case of a termination which takes
effect between the second and third anniversaries of the date of commencement of
the Employment Period.
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(b) Notwithstanding anything herein contained to the contrary, if after the
date hereof and prior to the end of the Employment Period, (i) either (A)
Executive shall be physically or mentally incapacitated or disabled or otherwise
unable fully to discharge his duties hereunder ("Disabled") for a period of
ninety (90) consecutive days or for an aggregate of 90 days within any period of
twelve consecutive months, (B) Executive shall be convicted of a felony or other
crime involving moral turpitude, (C) Executive shall commit any act or omit to
take any action in bad faith and to the detriment of the Company or any
subsidiary or affiliate of the Company, or (D) Executive shall breach any
material term of this Agreement and fail to correct such breach within ten (10)
days after receiving notice of the same, then, and in each such case, the
Company shall have the right to give notice of termination of Executive's
services hereunder as of a date to be specified in such notice (which date may
be the date such notice is given), and this Agreement shall terminate on the
date so specified; or (ii) Executive shall die, then this Agreement shall
terminate on the date of Executive's death. If this Agreement is terminated by
the Company for any of the reasons set forth in this Paragraph 8(b), Executive
or his estate, as the case may be, shall be entitled to receive his base salary
at the rate in effect on the date notice of termination is given or the date of
Executive's death, as the case may be, to the date on which termination shall
take effect and any Annual Award or other bonus payment granted through such
date which has not been paid; Provided, however, that if Executive is Disabled,
the amount payable to Executive pursuant to this Paragraph 8(b) shall be reduced
by an amount equal to the amounts, if any, to which he is entitled with respect
to such period pursuant to any insurance or other plan established by the
Company in which he is a participant.
9. CONFIDENTIALITY
(a) Beginning on the date hereof, and at any time hereafter, executive
shall treat as confidential any proprietary, confidential or secret information
relating to the business or interests of the Company or any subsidiary or
affiliate of the Company, including, without limitation, the organizational
structure, operations, business plans or technical projects of the Company or
any subsidiary or affiliate of the Company, and any research datum or result,
invention, trade secret, customer list, process or other work product developed
by or for the Company or any subsidiary or affiliate of the Company, whether on
the premises of the Company or elsewhere ("Confidential Information"). Beginning
on the date hereof, and at any time hereafter, Executive shall not disclose,
utilize or make accessible in any manner or in any form any Confidential
Information other than in connection with performing the services required of
him under this Agreement, without the prior written consent of the Company.
Notwithstanding the foregoing, the provisions of this Paragraph 9(a) shall not
apply to any proprietary, confidential or secret information or other research
datum or result, invention, trade secret, customer list or work product which
is, at the commencement of this Agreement or at some later date, publicly known
under circumstances involving no breach of this Agreement or is lawfully and in
good faith made available to Executive by a third party under no obligation of
confidentiality with respect thereto.
(b) Executive hereby agrees that any and all information, inventions and
discoveries, whether or not patentable, that he conceives and/or creates during
the Employment Period and any extensions thereof, and which are a direct or
indirect result of work performed hereunder, shall be the sole and exclusive
property of the Company. Executive hereby assigns to the Company any and all
right, title and interest which he has or may acquire in the same. Executive
further agrees that he will promptly execute any and all applications,
assignments or other instruments which an officer of the Company or the Board of
Directors of the Company shall deem necessary or useful in order to apply for
and obtain Letters Patent in the United States and all foreign countries for
said information, inventions and discoveries and in order to assign and convey
to the Company the sole and exclusive right, title and interest in and to said
information, inventions, discoveries, patent applications and patents thereon.
The Company will bear the cost of preparation of all such patent applications
and assignments, and the cost of prosecution of all such patent applications in
the United States patent office and in the patent offices of foreign countries.
(c) All documents, records, apparatus, equipment and other physical
property furnished to Executive by the Company or produced by Executive or
others in connection with his employment shall be and remain the sole property
of the Company. Executive will return and deliver such property to the Company
as and when requested by the Company.
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(d) Executive agrees that the provisions of this Paragraph 9 shall survive
the termination of this employment and of this agreement.
10. NON-COMPETITION
(a) Executive agrees that, during the period he is employed by the Company
or any subsidiary or affiliate of the Company, under this Agreement or
otherwise, he will not engage in, or otherwise directly or indirectly be
employed by, or act as a consultant, advisor or lender to, or be a director,
officer, employee, stockholder, owner or partner of, any other business or
organization, whether or not such business or organization now is or shall then
be competing with the Company or any parent, subsidiary or affiliate of the
Company; provided, however, that Executive shall not be prohibited either from
managing his own personal investments on his own personal time or from serving
on up to two (2) outside boards of directors or advisory boards, so long as such
activities do not (i) involve a business or organization which competes with the
Company or any subsidiary or affiliate of the Company, (ii) interfere or
conflict with the performance of his duties as an employee of the Company or any
subsidiary or affiliate of the Company, (iii) otherwise result in a breach of
any of the provisions of this Agreement, or (iv) in the case of serving as a
director or advisory board member of other companies, such activities for all
such companies do not require, in the aggregate, more than ten (10) days per
year, including travel time.
Executive further agrees that (y) if his employment with the Company is
terminated by the Company pursuant to Paragraphs 8(a) or 8(b)(i) hereof, or (z)
resigns or otherwise fails or refuses to perform the services required of him
under this Agreement other than as a result of a breach of this Agreement by the
Company (which breach is not cured within thirty (30) days after receiving
notice thereof), then during the two-year period commencing on the date he
ceases to be employed by any of the Company or any subsidiary or affiliate of
the Company, under this Agreement or otherwise, Executive shall not directly or
indirectly compete with or be engaged in the same business as the Company or any
subsidiary or affiliate of the Company, or be employed by, or act as consultant,
advisor or lender to, or be a director, officer, employee, stockholder, owner or
partner of, any business or organization which, at the time of such cessation,
directly or indirectly competes with or is engaged in the same business as the
Company or any subsidiary or affiliate of the Company; provided, however, that
if Executive's employment with the Company is terminated pursuant to Paragraphs
8(a) or 8(b)(i)(A) hereof, Executive's obligations pursuant to this sentence
shall continue only so long as the Company pays Executive compensation at the
same rate compensation was being paid to him pursuant to Paragraph 4 of this
Agreement at the time of such termination. Notwithstanding anything contained
herein to the contrary, the provisions of this Paragraph 10(a) will not be
deemed breached merely because Executive owns not more than 1% of the
outstanding common stock of a corporation if, at the time of its acquisition by
Executive, such stock is listed on a national securities exchange, is reported
on NASDAQ, or is regularly traded in the over-the-counter market by a member of
a national securities exchange.
(b) Executive agrees that for a period of three years from the termination
of this Agreement he will not, directly or indirectly, employ or solicit the
employment or engagement by others of any employees of, or consultants hired by,
the Company, or any subsidiary or affiliate of the Company, without the prior
written consent of the Company, unless such person ceased to be employed or
engaged by the Company or its subsidiary or affiliate at least four (4) months
prior to the solicitation.
(c) The obligations of Executive pursuant to this Paragraph 10 shall
survive the termination of this Agreement.
11. EQUITABLE RELIEF
Executive acknowledges that the restrictions contained in Paragraphs 9 and
10 of this Agreement are reasonable in view of the nature of the business in
which the Company is engaged and the knowledge he will obtain concerning the
Company's business (and the business of any subsidiary or affiliate of the
Company), and that any breach of his obligations under Paragraphs 9 and 10
hereof will cause the Company irreparable harm for which the Company will have
no adequate remedy at law. As a result, the Company shall be entitled to the
issuance by a court of competent jurisdiction of an injunction, restraining
order or other equitable relief
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in favor of itself restraining Executive from committing or continuing any such
violation, and Executive consents to such an injunction, restraining order or
other equitable relief. Any right to obtain an injunction, restraining order or
other equitable relief hereunder will not be deemed a waiver of any right to
assert any other remedy the Company may have under this Agreement or otherwise
at law or in equity.
12. REPRESENTATIONS AND WARRANTIES
Executive represents and warrants to the Company that (i) Executive is
under no contractual or other restriction or obligation which is inconsistent
with the execution of this Agreement, the performance of his duties hereunder or
the other rights of the Company and any subsidiary or affiliate of the Company
hereunder, and (ii) Executive is under no physical or mental disability that
would hinder the performance by him of his duties under this Agreement.
13. ASSIGNMENT
Under no circumstances shall Executive sign, pledge or otherwise dispose of
any of his rights or obligations under this Agreement, and any such attempted
assignment, pledge or disposition shall be void and shall, at the Company's
option, relieve the Company of all its obligations under this Agreement. The
Company may assign any of its rights or obligations under this Agreement to any
parent, subsidiary, affiliate or successor, but shall remain liable in the case
of any assignment to a parent or subsidiary.
14. ENTIRE AGREEMENT
This Agreement represents the entire agreement between the Company and
Executive with respect to the subject matter hereof and there have been no oral
or other agreements of any kind whatsoever as a condition precedent or
inducement to the signing of this Agreement or otherwise concerning this
Agreement or the subject matter hereof.
15. WAIVERS
Any waiver of any breach of any terms or conditions of this Agreement shall
not operate as a waiver of any other breach of such terms or conditions or any
other term or condition, nor shall any failure to enforce any provision hereof
on any one occasion operate as a waiver of such provision or of any other
provision hereof or a waiver of the right to enforce such provision or any other
provision on any subsequent occasion.
16. AMENDMENTS
This Agreement may not be amended, nor shall any waiver, change,
modification, consent or discharge be effected, except by an instrument in
writing executed by or on behalf of the party against whom enforcement of any
such amendment, waiver, change, modification, consent or discharge is sought.
17. SEVERABILITY
(a) If any provision of this Agreement shall be held or deemed to be
invalid, inoperative or unenforceable as written, it shall be construed, to the
greatest extent possible, in a manner which shall render it valid and
enforceable and any limitation on the scope or duration of any such provision
necessary to make it valid and enforceable shall be deemed to be part thereof.
(b) If any provision of this Agreement shall be held or deemed to be
invalid, inoperative or unenforceable as applied to any particular case in any
jurisdiction or jurisdictions, or in all jurisdictions or in all cases, because
of the conflict or any provision with any constitution or statute or rule of
public policy or for any other reason, such circumstance shall not have the
effect of rendering the provision or provisions in question invalid, inoperative
or unenforceable in any other jurisdiction or in any other case or circumstance
or of rendering any other provision or provisions herein contained invalid,
inoperative or unenforceable to the extent that such other provisions are not
themselves actually in conflict with such constitution, statute or rule of
public policy, but this Agreement shall be reformed and construed in any such
jurisdiction or case as if such
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invalid, inoperative or unenforceable provision had never been contained herein,
and such provision reformed so that it would be valid, operative and enforceable
to the maximum extent permitted in such jurisdiction or in such case.
18. GOVERNING LAW
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York without giving effect to rules
governing conflict of laws.
19. NOTICES
Any notice or other communication required or permitted by this Agreement
shall be in writing and personally delivered or mailed by certified mail, return
receipt requested, addressed to the parties at their addresses set forth above,
or to such other addresses as one party may specify to the other party, from
time to time, in writing. Any notice or other communication given by certified
mail shall be deemed given at the time of certification thereof, except for a
notice changing a party's address which shall be deemed given at the time of
receipt thereof.
20. 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 will constitute one
and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
and year first above written.
ONCOGENE SCIENCE, INC.
By: /s/ XXXX X. XXXXXXXX
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/s/ XXXXXX X. XXXXXXXX
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Xxxxxx X. Xxxxxxxx
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