EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT between XXXXXX X. XXXXXX, residing at 0000 Xxxxxxxxxxx
Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000 ("Employee"), and INFORMAX, INC., a
Delaware corporation with offices at 0000 Xxxxxxxxx Xxxxxxxxx, 00xx xxxxx, Xxxxx
Xxxxxxxx, Xxxxxxxx 00000 ("InforMax") is entered into as of 1 April 1999, (the
"Effective Date") and sets forth the terms and conditions of Employee's
continued employment by InforMax.
WITNESSETH
WHEREAS, Employee is presently employed by InforMax and is a Senior
Vice President, and Chief Financial Officer of InforMax; and
WHEREAS, InforMax believes that it is in the best interest of InforMax
to assure the continued services of Employee on behalf of InforMax under the
terms and conditions set forth herein; and
NOW THEREFORE, in consideration of the premises and of the mutual
covenants and conditions contained in this Agreement, the parties hereto,
intending to be legally bound, agree as follows:
1. EMPLOYMENT. InforMax hereby employs Employee and Employee hereby
accepts continued employment with InforMax upon the terms and conditions set
forth in this Agreement. Employee's principal titles and responsibilities shall
be that of Senior Vice-President, and Chief Financial Officer reporting to the
Chief Operating Officer ("COO"), as well as to the Chief Executive Officer
("CEO"). Employee shall perform such reasonable duties consistent with these
titles as shall be assigned to him from time to time by the COO and/or the CEO
of the InforMax, with the CEO having superiority.
2. TERM OF AGREEMENT. The term of this Agreement shall commence on the
Effective Date, and, except as otherwise provided herein, shall terminate on
Dec. 31, 2002. The Agreement shall automatically renew for additional terms of
one (1) year unless, not less than ninety (90) days before the next termination
date of the Agreement, either party provides notice in writing to the other that
it does not intend to renew the Agreement.
3. COMPENSATION.
(a) Base Salary. InforMax shall pay, and Employee shall accept,
as compensation for services rendered hereunder an initial annual salary
of $150,000 payable in
semi-monthly installments. In addition, Employee will be eligible for bonuses
commensurate with performance at the sole discretion of the CEO and the Board
of Directors of InforMax.
(b) Stock Options. Employee shall be granted options to purchase
shares of non-voting common stock as described in separate stock option
agreements. All options shall be governed by InforMax's Equity Incentive
Compensation Plan.
(c) Benefit Plans. Employee shall be entitled to participate in
such benefit plan(s) of InforMax now in existence or which may hereafter during
the term of this Agreement become effective for senior executives of InforMax.
Nothing in this Section 3(c) shall be deemed to prevent InforMax from altering
or abolishing any of such plans or benefits provided that all such senior
executives are treated equally.
(d) Vacation. During the term of this Agreement, Employee shall be
entitled to three (3) weeks paid vacation in accordance with the established
policy of InforMax. Employee also shall be entitled to all paid holidays and
personal days given by InforMax.
(e) Expenses. InforMax shall promptly pay or reimburse Employee
upon submission of vouchers or receipts for all reasonable out-of-pocket
expenses for entertainment, travel, meals, hotel accommodations and the like,
incurred by him that are reasonably related to the performance of his duties.
(f) Withholding. Employee acknowledges that InforMax may withhold
from amounts payable to Employee under this Agreement with respect to certain
income, unemployment and social security taxes required to be withheld from the
wages of employees under applicable Federal, State, and local law. No other
taxes, fees, impositions, duties or other charges of any kind shall be deducted
or withheld from amounts payable hereunder, unless otherwise required by law or
agreed to by Employee.
4. TERMINATION OF EMPLOYMENT. Notwithstanding any provisions herein to
the contrary, Employee's employment with InforMax may be terminated prior to the
completion of the term described in Section 2 of this Agreement, subject to the
following terms and conditions:
(a) Termination for Cause. InforMax may terminate Employee's
employment at any time for Cause. For the purpose of this Agreement, the term
"Cause" shall mean Employee's (1) willful misconduct; (2) gross negligence or
incompetence in the performance of his duties for more than five (5) days after
receiving written notice from InforMax on the grounds of purported failure to
perform and corresponding failure by Employee to cure such breach within thirty
(30) days of written notice; (3) willful violation of any law (other than
traffic
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violations or similar offenses) or final cease-and-desist order in performance
of his duties; or (4) material breach of any provision of this Agreement.
(b) Termination Without Cause upon a Change of Control. InforMax
shall pay Employee a sum equal to his annual base salary plus earned commissions
and bonuses for the previous twelve (12) months at the time of a "Change in
Control" upon termination by InforMax or its successor or assignee of Employee's
employment without Cause within 365 days of a "Change in Control". For the
purposes of this Section a "Change of Control" of the Company shall be deemed to
have occurred if (i) any person or entity other than a person currently a
beneficial owner of the Company's securities becomes, after the date hereof, the
beneficial owner of securities of the Company representing 50% or more of the
combined voting power of the Company's then outstanding securities, or (ii) the
Company sells all or substantially all or substantially all of the assets of the
Company.
(c) Termination Without Cause other than upon a Change of Control.
InforMax shall pay Employee a lump-sum cash payment in an amount equal to fifty
percent (50%) of his annual salary plus fifty percent (50%) of his earned
commissions and bonuses for the previous twelve (12) months upon termination by
InforMax of Employee's employment without Cause other than as provided in
Section 4(b) above. The severance payment shall be paid to Employee in cash as
promptly as practicable, but in no event later than thirty (30) days following
the termination of his employment. Employee's Options will continue to vest
until the end of the sixth month after termination without Cause.
(d) Termination by Employee for Breach by InforMax or its Successor
or Assignee. In the event that InforMax or its successor or assignee breaches
this Agreement in any material respect and fails to cure the breach within
thirty (30) days of written notice, Employee may terminate his employment. In
the event of such termination, InforMax or its successor or assignee shall pay
Employee a lump-sum cash payment in an amount equal to fifty percent (50%) of
his annual salary plus fifty percent (50%) of his earned commissions and bonuses
for the previous twelve (12) months. The severance payment shall be paid to
Employee in cash as promptly as practicable, but in no event later than thirty
(30) days following such termination.
(e) Voluntary Termination by Employee without Cause. Any termination
of Employee's employment by resignation, retirement or any other action of
Employee for any reason other than as set forth in Section 4(d) shall be deemed
to be a "Voluntary Termination." Employee shall give InforMax thirty (30) days
notice of a Voluntary Termination.
(f) Payment Upon Termination For Cause or Voluntary Termination.
InforMax's obligation to pay Employee any and all compensation and benefits
shall cease in the event of a Termination for Cause or a Voluntary Termination,
and InforMax shall not be liable for any further payments to Employee hereunder
except for accrued salary, accrued vacation
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days, reimbursement of appropriate expense vouchers, applicable indemnification
obligations and other benefit continuation obligations imposed by law.
5. DEVOTION OF TIME. Except for vacations as provided herein and
absences due to temporary illness or family emergencies, Employee agrees to
devote his business time, best efforts and undivided attention and energies
during the term of this Agreement to the performance of his duties and to
advance InforMax's interests. During the term of this Agreement, Employee shall
not, without the prior written approval of the Board of Directors, or its
designee, be engaged in any other business activity which, in the reasonable
judgment of the Board of Directors, conflicts with the duties of Employee,
whether or not such business activity is pursued for gain, profit, or other
pecuniary advantage; but this restriction shall not be construed as preventing
Employee from investing his assets in such form or manner as will not require
the performance of services of Employee in the operations of the affairs of the
enterprises or companies in which said investments are made. Notwithstanding the
foregoing, services which are neither substantial nor significant, individually
or in the aggregate, shall be permitted with respect to investments of Employee
provided that they shall not have an adverse effect on Employee's duties
hereunder.
6. NON-COMPETITION. Employee agrees that during the period of
Employee's employment by InforMax and for a period of one (1) year after
termination of this Agreement in accordance with sections 4(a), 4(e) or 4(f):
(i) Employee will not solicit business from or perform work for
any of InforMax's past or present clients, or any of InforMax's
prospective clients to whom InforMax has made a written proposal within
six (6) months prior to any termination of Employee's employment with
InforMax, either directly or indirectly, for the benefit of anyone
other than InforMax, or participate or assist in any way in the
solicitation of business from or performance of work for any such
clients, as an independent contractor or consultant to any other entity
unless the business being solicited or the work being performed is not
the Same Business as that in which InforMax is engaged. As used in this
Agreement, the term "Same Business" means any business in which the
InforMax is currently engaged at the time of termination or any
business in which the Board of Directors has approved, in its minutes,
plans to enter.
(ii) Employee will not divert, solicit, or pirate on Employee's
behalf, or on the behalf of any other employer, person, or entity, any
employee of InforMax, or directly or indirectly induce or attempt to
influence any such employee to leave InforMax's employment.
(iii) Employee will not, directly or indirectly, on Employee's
behalf or in the service or on behalf of others, render or be retained
to render services whether as an officer, partner, trustee, consultant,
or employee, for any business engaged in the Same
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Business as InforMax including but not limited to any customer of
InforMax for whom Employee has provided services during Employee's
employment with InforMax, unless the same is provided solely to that
portion or unit of any such business that is not engaged in the Same
Business.
(iv) The business of InforMax is international in scope and the
restrictions of this paragraph shall accordingly apply worldwide.
7. NONDISCLOSURE OF PROPRIETARY INFORMATION. Both during and after the
term of this Agreement, Employee agrees to preserve and protect the
confidentiality of Proprietary Information as defined in Section 8 below. In
addition, Employee will not (i) disclose or disseminate Proprietary Information
to any third party, including employees of InforMax without a need to know, or
(ii) use Proprietary Information for his own benefit or for the benefit of any
third party. If Employee receives information with uncertain confidentiality, he
agrees to treat the information as Proprietary Information until management has
verified to him that such information is neither confidential nor proprietary.
8. DEFINITION OF PROPRIETARY INFORMATION. Proprietary Information is
defined as information regarding InforMax's current and planned business
activities, including (i) information which relates to InforMax's actual or
anticipated products, software, research inventions, processes, techniques,
designs or other technical data; (ii) information regarding administrative,
financial or marketing activities of InforMax; (iii) information received from
InforMax clients and other third parties; and (iv) any materials or documents
containing any of the above information. Proprietary Information does not
include information which is or becomes publicly available without a breach of
this Agreement by Employee or any information that Employee is obligated to
disclose to third parties by law.
9. RETURN OF PROPRIETARY INFORMATION. Upon termination of his
employment with InforMax, Employee agrees to deliver to InforMax all documents
and other tangibles including diskettes and other electronic or other storage
media containing Proprietary Information.
10. TRADE SECRETS. Employee understands and agrees that the covenants,
restrictions and prohibitions against disclosure of Proprietary Information set
forth in this Agreement are in addition to, and not in lieu of, any rights or
remedies which InforMax may have available pursuant to the laws of any
jurisdiction or at common law to prevent disclosure of trade secrets or
proprietary information, and the enforcement by InforMax of its rights and
remedies pursuant to this Agreement shall not be construed as a waiver of any
other rights or available remedies which it may possess in law or equity absent
this Agreement.
11. OWNERSHIP OF WORKS. During the time Employee is employed by
InforMax, InforMax shall own all rights, including all trade secrets and
copyrights, in and to the following works created by Employee whether created on
InforMax's premises or at some other location:
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(i) works which relate to or are derived from the actual or anticipated business
of InforMax and (ii) works which result from or are derived from any task
assigned to Employee or work performed by Employee for InforMax (collectively,
the "Works"). InforMax shall own such Works even if created outside normal
working hours and regardless of whether Employee's own equipment or InforMax's
equipment was used to create the Works. Such Works shall include program codes
and documentation. To the extent that any such Works do not qualify as works
made for hire under U.S. copyright law, this Agreement will constitute an
irrevocable assignment by Employee to InforMax of the ownership of, and all
rights of copyright in, such Works. Employee agrees to give InforMax or its
designees all assistance reasonably required to perfect such rights provided
that following termination of this Agreement, InforMax shall reimburse Employee
for his reasonable time and expense in assisting with such matters.
12. INVENTIONS. If Employee individually or jointly makes or conceives
of any invention, technique, process, or other know-how, whether patentable or
not, in the course of performing services for Employee for InforMax, which
relates in any manner to the actual or anticipated business of InforMax or
results from any task assigned to Employee or work performed by Employee for
InforMax (collectively, "Inventions"), Employee will and hereby does assign to
InforMax his entire right, title and interest in such Inventions. Employee will
disclose any such Inventions to an officer of InforMax and will, upon request,
promptly sign a specific assignment of title to InforMax, and do anything else
reasonably necessary to enable InforMax to secure patents, trade secret or any
other proprietary rights in the United States or foreign countries, provided
that following termination of this Agreement, InforMax shall reimburse Employee
for his reasonable time and expense in assisting with such matters. Any
Inventions Employee has made or conceived before the effective date of this
Agreement are listed and described on Schedule A attached hereto. These items
are excluded from this Agreement.
13. INDEMNIFICATION. InforMax shall indemnify and hold harmless
Employee in his capacity as an officer as provided in the certificate of
incorporation and by-laws of InforMax, as amended from time to time. This
provision shall in no manner limit InforMax's right to amend its certificate of
incorporation or by-laws.
14. ASSIGNABILITY. This Agreement and all rights hereunder are personal
to Employee and shall not be assignable except in accordance with the laws of
descent and distribution, and any purported assignment in violation thereof
shall not be valid or binding on InforMax. This Agreement, however, shall inure
to the benefit of, and be binding upon each successor of InforMax, whether
resulting from a merger or consolidation or to the recipient of all or
substantially all of the assets of InforMax (and such successor shall thereafter
be deemed the same as InforMax for purposes of this Agreement). This Agreement
shall in no way restrict InforMax's right to merge, consolidate, sell all or
substantially all of its assets or engage in any business combination or other
transaction of any nature.
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15. ENTIRE AGREEMENT. This Agreement, including any Schedule A,
supersedes and replaces any and all present, written or oral, agreements of
employment between the parties hereto, and all such agreements are hereby deemed
canceled, revoked, and of no further force or effect.
16. ACKNOWLEDGMENT. The restrictions contained in Section 6 of this
Agreement are considered reasonable by Employee and InforMax, and it is the
desire of both parties that such restrictions and the other provisions of this
Agreement be enforced to the fullest extent permissible under the laws and the
public policies applied in each jurisdiction in which enforcement is sought. A
deletion resulting from any adjudication shall occur only with respect to the
operation of the provision or a portion thereof affected in the particular
jurisdiction in which such adjudication is made, and each court or other body
having jurisdiction with respect to the enforcement of the provisions of Section
6 of this Agreement are hereby empowered to modify by reduction, rather than
deletion, the time periods or other restrictions referred to therein.
17. MODIFICATION. This Agreement constitutes the whole agreement of
employment of Employee by InforMax and there are no terms other than those
stated herein. No variation hereof shall be deemed valid unless in writing and
signed by the parties hereto, and no discharge of the terms hereof shall be
deemed valid unless by full performance by the parties hereto and by a writing
signed by the parties hereto. No waiver by either party of any provision or
condition of this Agreement by him or it to be performed shall be deemed a
waiver of similar or dissimilar provisions and conditions at the same time or
any prior or subsequent time.
18. NOTICES. Any notice, statement, report, request or demand required
or permitted to be given by this Agreement shall be in writing, and shall be
sufficient if addressed and sent by certified mail, return receipt requested, to
the parties at the addresses set forth above or at such other place that either
party may designate by notice to the other.
19. EQUITABLE RELIEF/PAYMENT OF FEES. The parties to this Agreement
agree that each of them shall be entitled, in addition to any other remedies
they may have under this Agreement, at law, or otherwise, to immediate
injunctive and other equitable relief to prevent or curtail any breach of this
Agreement. Each party agrees to indemnify the other party for all reasonable
costs and attorneys' fees incurred in enforcing this Agreement should the first
such party prevail in any litigation over a breach of any provision of this
Agreement.
20. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Maryland (regardless of the laws that might otherwise govern under
applicable principles or conflicts of law) as to all matters, including but not
limited to matters of validity, construction, effect, performance and remedies.
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21. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but which together shall constitute one
and the same instrument.
23. LIMITED AGREEMENT. This Agreement is intended by the parties to
govern only those rights and obligations described herein, and it is not the
parties' intent to abrogate any other rights in favor of Employee or InforMax
provided under Federal or State Law.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth above.
InforMax, Inc.
By: /s/ Xxxx Xxxxxxxxx
---------------------------------
Xxxx Xxxxxxxxx
Chairman, CEO
Employee: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Xxxxxx X. Xxxxxx
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