EXHIBIT 10.3
EMPLOYMENT AGREEMENTS
Attached are the employee agreements for the following persons:
Xxxxxxx Xxxxxx
Xxxxxxx Honour
Xxxxx Honour
Xxxx Xxx
Xxxxxxx Xxxxxx (2 agreements)
Xxxxx Stylebo
Xxxx Xxxxxxxx
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated November 1, 2000 ("Agreement") between Phage
Therapeutics, Inc., a Washington corporation ("Company") and Xxxxxxx X. Xxxxxx,
PhD, a resident of Redmond, WA ("Employee").
WITNESSETH
WHEREAS, the Company wishes to employ Employee in the position of Vice
President, Pharmaceutical Development; and
WHEREAS, the Employee wishes to enter into the employ of the Company to fulfill
the responsibilities of the position of Vice President, Pharmaceutical
Development;
NOW THEREFORE, in consideration of the foregoing and of the respective
covenants, obligations and agreements of the parties contained in this
Agreement, the parties, intending to be legally bound, hereby agree as follows:
1. EMPLOYMENT
The Company shall employ Employee, and Employee shall accept such employment,
upon the terms and conditions set forth in Agreement. Employee's employment with
the Company shall be subject to the Company's general employment policies and
practices. The Company reserves the right to modify such policies and practices
from time to time.
2. DUTIES
Employee shall be employed as Vice President, Pharmaceutical Development. During
the term of this Agreement, Employee shall devote his full time, attention and
efforts to the conduct of the business of the Company and the performance of his
duties under this Agreement. Employee shall not engage in any other business
activity, whether or not such activity is pursued for gain, profit or other
pecuniary advantage; provided that Employee shall not be prevented from
investing his personal assets in such form or manner as will not require any
services on the part of Employee in the operation of the affairs of the entities
in which such investments are made.
3. TERM
Subject to the terms and conditions set forth in this Agreement, Company shall
employ Employee and Employee shall serve the Company in the position of Vice
President, Pharmaceutical Development for a period commencing November 1, 2000
("Commencement Date") and continuing through the first anniversary of the
Commencement Date, unless such employment is sooner terminated as provided
herein. During this one (1) year period, Employee's compensation and other
benefits may be adjusted annually, or more often, without the necessity of an
amendment of this Agreement. The Employee's term of employment shall be extended
for additional one (1) year periods and on such terms and at such levels of
compensation as shall be mutually agreed to in writing by Company and Employee,
unless otherwise terminated under this Agreement.
4. COMPENSATION
For all services rendered by Employee under this Agreement, the Company agrees
to pay Employee and Employee agrees to accept the following:
4.1 Salary. An annual salary of $84,000 ("Salary"), which shall be payable at
the times and in the manner set by the Company's standard payroll policy. Such
Salary shall be reviewed one (1) month prior to the anniversary of the
Commencement Date each year, and any increase in the amount under this Agreement
for the twelve (12) month period following the Commencement Date anniversary
date shall be determined at such time by the Board of Directors of the Company,
or a compensation committee formed by the Board of Directors.
4.2 Bonuses. Employee shall additionally be entitled to such cash and/or stock
bonuses and stock options as determined from time to time by the Board of
Directors of the Company, or their designated representatives(s). Cash bonuses,
if any, shall be paid subject to achievement of specific performance milestones
agreed to by both the Company and Employee.
5. CONTINUING EDUCATION
In the event that performance of Employee's responsibilities and duties within
the Company shall require or recommend certification, licensure, or continuing
education to maintain licensure, then Company shall upon notice, allow time
during business hours for the required activity and shall reimburse Employee for
reasonable expenses associated therewith including at least any registration
fees, license fees, travel, lodging and per diem fees.
6. WORKING FACILITIES
Employee shall be furnished with such facilities, services, and supplies as are
suitable and adequate for the performance of this duties under this Agreement.
7. EXPENSES
Employee shall be reimbursed by the Company for his reasonable expenses incurred
in connection with his employment and which are related to and in furtherance of
the Company's business, in accordance with the general policy of the Company
regarding reimbursement of expenses.
8. BENEFITS
Employee shall be entitled to all rights and benefits for which Employee is
eligible under any employee-benefits plan, including pension, stock or stock
option, profit sharing, health (including medical and dental), and life and
disability insurance plan, which the Company provides for its employees
generally. The Company reserves the right to change the benefits offered to
employees at any time.
9. TERMINATION
Employee's employment with the Company shall be terminated upon the occurrence
of any of the following events:
9.1 Death of Employee. In lieu of any other benefits which may be payable by the
Company with respect to death, in the event of such death, the Salary payable
hereunder shall continue to be paid at the then current rate for three (3)
months after the termination of employment. In the event of the death of the
Employee during the term of this Agreement, the sums payable hereunder shall be
paid to his personal representative;
9.2 Mutual agreement of termination in writing between the Company and Employee;
9.3 Disability of Employee that prevents him from performing the material and
substantial duties of his position for a period of two (2) months. In such
event, at the Company's option, the Company shall give Employee not less than 30
days' written notice of termination of employment. Employee shall continue to
render services to the Company (unless disabled) and shall be paid his full
salary as in effect at such time up to the date of termination. Nothing in this
Agreement, however, shall limit or diminish the Company's obligations towards
Employee with respect to the Americans with Disabilities Act of 1990, as
amended, the Family and Medical Leave Act of 1993, as amended, or any similar
state laws.
9.4 Written notice by either party to the other terminating the employment of
Employee as follows:
a. Notice of resignation by Employee to the Company, at least 30
days in advance;
b. Notice of termination of employment by the Company to Employee
with cause. For purposes of this Agreement, the Company shall
have "Cause" to terminate Employee's employment under this
Agreement upon Employee's: (a) willful breach of any of
Employee's material obligations under this Agreement, which
breach shall not have been remedied by Employee within ten (10)
days after the Company shall have given written notice to
Employee of such breach, or which such breach shall have been
repeated after lapse of such ten-day notice period; (b)
commission of an act which the Board of Directors of the Company
shall reasonably have found to have involved willful misconduct
or gross negligence on the part of Employee in the conduct of his
duties under this Agreement which materially injures the Company
or any of its subsidiaries or affiliates; (c) conviction of (or
pleading nolo contendere to) any felony or any misdemeanour
involving moral turpitude which might, in the reasonable judgment
of the Board of Directors of the Company, cause embarrassment to
the Company or any of its subsidiaries or affiliates; (d)
commission of a material act of personal dishonesty or breach of
fiduciary duty involving personal profit in connection with the
Employee's employment by the Company; or (e) habitual
absenteeism, chronic alcoholism, drug abuse or other form of
addiction which, in the reasonable judgment of the Board of
Directors, impairs Employee's ability to perform his duties or
injures the Company.
c. Notice of termination of employment by the Company to Employee
without cause or for good reason. For purposes of this Agreement,
the Company will have terminated Employee's employment with
Company under the Agreement without cause or for "Good Reason"
upon Company's: (a) financial inability to meet its financial
obligations; (b) desire to terminate Employee's employment for
reasons other than for Cause as defined above in Section 9.4.c;
(c) contemplation, consideration or execution of a financial or
business agreement or transaction that obligates Company to
reduce costs or staff or Employee's employment; (d) termination
of Employee's employment within 120 days of the date of a Change
of Control of the Company; or (e) failure to comply with the
terms fo this Agreement. In the event of termination of
Employee's employment under this Agreement by Employer without
cause or for Good Reason, Employer shall pay within ten (10) days
of such termination a severance payment equal to the compensation
that would have been paid to Employee for an additional three (3)
month period, at the same rate of pay per month as if Employee's
employment would not have been terminated. Employee's fringe
benefits and other benefits that were provided Employee under
Section 8 of this Agreement will be continued to the benefit of
Employee during the three month period of compensation after
termination without cause or for Good Reason.
Notwithstanding any termination of this Agreement pursuant to Section 9,
Employee shall remain bound by the provisions of Sections 10 and 11 below.
10. INVENTIONS
"Inventions" made or conceived entirely or partially by Employee while employed
by the Company shall be the exclusive property of the Company. For the purposes
of this Agreement, the term, "Inventions" includes, without limitation, all
creations, whether or not patentable or copyrightable, and all ideas, reports,
or other creative works including, without limitation, therapies, genetic
engineering tools and methods, gene expression systems and diagnostics and
therapeutic products derived therefrom, which related to the existing or
proposed business of the Company or to any other business or research or
development effort conducted by the Company. All of Employee's Inventions,
whether or not copyrightable or patentable, will be works for hire. Employee
will promptly disclose each Inventions to the Company in writing and cooperate
with the Company to patent or copyright all Inventions by executing all
documents tendered by the Company for the purpose of patenting or copyrighting
Employee's Inventions. This provision shall be construed in conformity with
Chapter 49.44 of the Revised Code of Washington. This provision does not apply
to an Invention for which no equipment, supplies, facilities, or trade secret
information of the Company was used and which was developed entirely on
Employee's own time unless (i) the Invention relates directly to the business of
the Company, or to the Company's actual or demonstrably anticipated research or
development, or (ii) the Invention results from any work performed by Employee
for the Company.
11. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION AND RESTRICTIVE COVENANTS
11.1 Confidential Information. During the course of his employment, Employee
will acquire knowledge of trade secrets and other proprietary information of the
Company ("Confidential Information") and may contribute to Confidential
Information through inventions, discoveries, improvements or some other manner.
Confidential Information includes, but is not limited to, nonpublic information
relating to the Company's business, operations, customers or technology,
including customer lists, vendor lists, pricing or financial information
concerning the Company and its vendors and customers, trade secrets, data,
documentation, concepts techniques, processes, know-how, marketing information,
designs, customer information, cost data, price lists, and pricing policies.
Confidential Information does not include information that is already public
knowledge or which can be obtained by reference to public sources. Employee
recognizes that all Confidential Information is the property of the Company and
agrees that, except as required by the duties of Employee's employment with the
Company, Employee shall never, directly or indirectly, use, publish, disseminate
or otherwise disclose any Confidential Information obtained during Employee's
employment with the Company without the prior written consent of the Company.
Employee acknowledges and agrees that the terms of this Section shall survive
the termination of his employment with the Company.
11.2 Non-Competition. Employee further acknowledges that his position with the
Company will give him a close knowledge of its policies, business and trade
secrets, and that Employee's continued and exclusive service to the Company
under this Agreement is of a high degree of importance and confidentiality.
Employee agrees that for a period of one year after the termination of
Employee's employment with the Company, Employee will not, directly or
indirectly, be employed by, engage in, consult with, or own an equity interest
in any entity or activities competitive with the business engaged in by the
Company during Employee's employment under this Agreement, without the written
consent of the Company.
11.3 Solicitation. During the term of his employment with the Company and for
the period of one year thereafter, Employee shall not: (i) seek to persuade,
directly or indirectly, any employee of the Company to discontinue that
individual's employment with the Company, or seek to persuade any such employee
to become employed in any activity similar to or competitive with the activities
of the Company, or (ii) directly or indirectly solicit from any person or entity
who was a customer of the Company and with whom Employee had business dealings
on behalf of the Company during the one-year period prior to the termination of
Employee's employment any business which is competitive with the business
activities of the Company, or cause or authorize such solicitation, for or on
behalf of Employee or any third party.
11.4 Unfair Competition. Employee agrees that the provisions of Section 10 and
11 of this Agreement are reasonably necessary to protect the rights of the
Company and to prevent unfair competition. The provisions of Sections 10 and 11
shall apply if Employee's employment is terminated at the end of the term of
this Agreement or otherwise. The period of the covenants contained in Sections
10 and 11 shall be extended by any period of time during which Employee is in
violation of said covenants, if any.
11.5 Severability. The parties agree that the covenants set forth in Sections 10
and 11 of this Agreement, including, without limitation, the scope, duration,
and geographic extent of such restrictions, are fair and reasonably necessary
for the protection of the Company's legitimate business interest. In the event a
court or arbitrator should decline to enforce any of such provisions, they shall
be deemed to be modified to restrict Employee to the maximum extent which the
court or arbitrator shall find enforceable.
11.6 Records. Upon termination of this Agreement, all documents, records, files,
notebooks, and similar repositories containing the information described in
Sections 10 and 11 of this Agreement, including all copies, then in Employee's
possession, whether prepared by Employee or others, shall be immediately
returned to the Company by Employee.
12. INJUNCTIVE RELIEF
Employee acknowledges that the breach or threatened breach of the nondisclosure,
non-competition or other agreements contained in this Agreement would give rise
to irreparable injury to the Company, which injury would be inadequately
compensable in money damages. The Company may, therefore, seek and obtain a
restraining order or injunction prohibiting the breach or threatened breach of
any provision, requirement or covenant of this Agreement, in addition to and not
in limitation of any other legal remedies that may be available.
13. MISCELLANEOUS
13.1 Entire Agreement. This Agreement contains the entire agreement between the
Company and Employee relating to the subject matter of this Agreement. No
modification of this Agreement shall be valid unless made in writing and signed
by both parties.
13.2 Notice. Any notice required or permitted to be give under this Agreement
shall be sufficient if in writing and delivered personally or sent by registered
or certified mail, receipt return requested, to Employee at his residence or to
the Company at its principal office.
13.3 Waiver. No waiver by the Company or Employee of any default or breach of
any term, condition or covenant of this Agreement shall be deemed to be a wavier
of any subsequent default or breach of the same or any other term, condition or
covenant contained in this Agreement.
13.4 Assignment and Successors. The rights and obligations of Employee under
this Agreement are personal and may not be assigned to any other person. This
Agreement will bind and benefit any successor of the Company, whether by merger,
sale of assets, reorganization or other form of acquisition, disposition or
business reorganization. In the event of Employee's death, any benefits due or
to become due under this Agreement shall become a part of Employee's estate and
shall be distributed to his personal representative.
13.5 Attorney's Fees. In the event of any dispute relating to interpretation or
enforcement of this Agreement, the prevailing party shall be entitled to recover
its reasonable attorneys' fees and costs, whether or not a lawsuit, arbitration
or other legal action is commenced.
13.6 Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Washington.
This Agreement is effective as of the date first above written.
PHAGE THERAPEUTICS, INC. (COMPANY):
By: /s/ Xxxxxxx X. Honour/s/
----------------------------
Its: President & CEO
--------------------
EMPLOYEE (EMPLOYEE):
/s/ Xxxxxxx X. Xxxxxx /s/
-------------------------
Signature
Feb. 21, 2001
-------------
Date
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated November 1, 2000 ("Agreement") between Phage
Therapeutics, Inc., a Washington corporation ("Company") and Xxxxxxx X. Honour,
PhD, a resident of Kenmore, WA ("Employee").
WITNESSETH
WHEREAS, the Company wishes to employ Employee in the position of President &
CEO; and
WHEREAS, the Employee wishes to enter into the employ of the Company to fulfill
the responsibilities of the position of President & CEO;
NOW THEREFORE, in consideration of the foregoing and of the respective
covenants, obligations and agreements of the parties contained in this
Agreement, the parties, intending to be legally bound, hereby agree as follows:
1. EMPLOYMENT
The Company shall employ Employee, and Employee shall accept such employment,
upon the terms and conditions set forth in Agreement. Employee's employment with
the Company shall be subject to the Company's general employment policies and
practices. The Company reserves the right to modify such policies and practices
from time to time.
2. DUTIES
Employee shall be employed as President & CEO. During the term of this
Agreement, Employee shall devote his full time, attention and efforts to the
conduct of the business of the Company and the performance of his duties under
this Agreement. Employee shall not engage in any other business activity,
whether or not such activity is pursued for gain, profit or other pecuniary
advantage; provided that Employee shall not be prevented from investing his
personal assets in such form or manner as will not require any services on the
part of Employee in the operation of the affairs of the entities in which such
investments are made.
3. TERM
Subject to the terms and conditions set forth in this Agreement, Company shall
employ Employee and Employee shall serve the Company in the position of
President & CEO for a period commencing November 1, 2000 ("Commencement Date")
and continuing through the first anniversary of the Commencement Date, unless
such employment is sooner terminated as provided herein. During this one (1)
year period, Employee's compensation and other benefits may be adjusted
annually, or more often, without the necessity of an amendment of this
Agreement. The Employee's term of employment shall be extended for additional
one (1) year periods and on such terms and at such levels of compensation as
shall be mutually agreed to in writing by Company and Employee, unless otherwise
terminated under this Agreement.
4. COMPENSATION
For all services rendered by Employee under this Agreement, the Company agrees
to pay Employee and Employee agrees to accept the following:
4.1 Salary. An annual salary of $120,000 ("Salary"), which shall be payable at
the times and in the manner set by the Company's standard payroll policy. Such
Salary shall be reviewed one (1) month prior to the anniversary of the
Commencement Date each year, and any increase in the amount under this Agreement
for the twelve (12) month period following the Commencement Date anniversary
date shall be determined at such time by the Board of Directors of the Company,
or a compensation committee formed by the Board of Directors.
4.2 Bonuses. Employee shall additionally be entitled to such cash and/or stock
bonuses and stock options as determined from time to time by the Board of
Directors of the Company, or their designated representatives(s). Cash bonuses,
if any, shall be paid subject to achievement of specific performance milestones
agreed to by both the Company and Employee.
5. CONTINUING EDUCATION
In the event that performance of Employee's responsibilities and duties within
the Company shall require or recommend certification, licensure, or continuing
education to maintain licensure, then Company shall upon notice, allow time
during business hours for the required activity and shall reimburse Employee for
reasonable expenses associated therewith including at least any registration
fees, license fees, travel, lodging and per diem fees.
6. WORKING FACILITIES
Employee shall be furnished with such facilities, services, and supplies as are
suitable and adequate for the performance of this duties under this Agreement.
7. EXPENSES
Employee shall be reimbursed by the Company for his reasonable expenses incurred
in connection with his employment and which are related to and in furtherance of
the Company's business, in accordance with the general policy of the Company
regarding reimbursement of expenses.
8. BENEFITS
Employee shall be entitled to all rights and benefits for which Employee is
eligible under any employee-benefits plan, including pension, stock or stock
option, profit sharing, health (including medical and dental), and life and
disability insurance plan, which the Company provides for its employees
generally. The Company reserves the right to change the benefits offered to
employees at any time.
9. TERMINATION
Employee's employment with the Company shall be terminated upon the occurrence
of any of the following events:
9.1 Death of Employee. In lieu of any other benefits which may be payable by the
Company with respect to death, in the event of such death, the Salary payable
hereunder shall continue to be paid at the then current rate for three (3)
months after the termination of employment. In the event of the death of the
Employee during the term of this Agreement, the sums payable hereunder shall be
paid to his personal representative;
9.2 Mutual agreement of termination in writing between the Company and Employee;
9.3 Disability of Employee that prevents him from performing the material and
substantial duties of his position for a period of two (2) months. In such
event, at the Company's option, the Company shall give Employee not less than 30
days' written notice of termination of employment. Employee shall continue to
render services to the Company (unless disabled) and shall be paid his full
salary as in effect at such time up to the date of termination. Nothing in this
Agreement, however, shall limit or diminish the Company's obligations towards
Employee with respect to the Americans with Disabilities Act of 1990, as
amended, the Family and Medical Leave Act of 1993, as amended, or any similar
state laws.
9.4 Written notice by either party to the other terminating the employment of
Employee as follows:
a. Notice of resignation by Employee to the Company, at least 30
days in advance;
b. Notice of termination of employment by the Company to Employee
with cause. For purposes of this Agreement, the Company shall
have "Cause" to terminate Employee's employment under this
Agreement upon Employee's: (a) willful breach of any of
Employee's material obligations under this Agreement, which
breach shall not have been remedied by Employee within ten (10)
days after the Company shall have given written notice to
Employee of such breach, or which such breach shall have been
repeated after lapse of such ten-day notice period; (b)
commission of an act which the Board of Directors of the Company
shall reasonably have found to have involved willful misconduct
or gross negligence on the part of Employee in the conduct of his
duties under this Agreement which materially injures the Company
or any of its subsidiaries or affiliates; (c) conviction of (or
pleading nolo contendere to) any felony or any misdemeanour
involving moral turpitude which might, in the reasonable judgment
of the Board of Directors of the Company, cause embarrassment to
the Company or any of its subsidiaries or affiliates; (d)
commission of a material act of personal dishonesty or breach of
fiduciary duty involving personal profit in connection with the
Employee's employment by the Company; or (e) habitual
absenteeism, chronic alcoholism, drug abuse or other form of
addiction which, in the reasonable judgment of the Board of
Directors, impairs Employee's ability to perform his duties or
injures the Company.
c. Notice of termination of employment by the Company to Employee
without cause or for good reason. For purposes of this Agreement,
the Company will have terminated Employee's employment with
Company under the Agreement without cause or for "Good Reason"
upon Company's: (a) financial inability to meet its financial
obligations; (b) desire to terminate Employee's employment for
reasons other than for Cause as defined above in Section 9.4.c;
(c) contemplation, consideration or execution of a financial or
business agreement or transaction that obligates Company to
reduce costs or staff or Employee's employment; (d) termination
of Employee's employment within 120 days of the date of a Change
of Control of the Company; or (e) failure to comply with the
terms fo this Agreement. In the event of termination of
Employee's employment under this Agreement by Employer without
cause or for Good Reason, Employer shall pay within ten (10) days
of such termination a severance payment equal to the compensation
that would have been paid to Employee for an additional three (3)
month period, at the same rate of pay per month as if Employee's
employment would not have been terminated. Employee's fringe
benefits and other benefits that were provided Employee under
Section 8 of this Agreement will be continued to the benefit of
Employee during the three month period of compensation after
termination without cause or for Good Reason.
Notwithstanding any termination of this Agreement pursuant to Section 9,
Employee shall remain bound by the provisions of Sections 10 and 11 below.
10. INVENTIONS
"Inventions" made or conceived entirely or partially by Employee while employed
by the Company shall be the exclusive property of the Company. For the purposes
of this Agreement, the term, "Inventions" includes, without limitation, all
creations, whether or not patentable or copyrightable, and all ideas, reports,
or other creative works including, without limitation, therapies, genetic
engineering tools and methods, gene expression systems and diagnostics and
therapeutic products derived therefrom, which related to the existing or
proposed business of the Company or to any other business or research or
development effort conducted by the Company. All of Employee's Inventions,
whether or not copyrightable or patentable, will be works for hire. Employee
will promptly disclose each Inventions to the Company in writing and cooperate
with the Company to patent or copyright all Inventions by executing all
documents tendered by the Company for the purpose of patenting or copyrighting
Employee's Inventions. This provision shall be construed in conformity with
Chapter 49.44 of the Revised Code of Washington. This provision does not apply
to an Invention for which no equipment, supplies, facilities, or trade secret
information of the Company was used and which was developed entirely on
Employee's own time unless (i) the Invention relates directly to the business of
the Company, or to the Company's actual or demonstrably anticipated research or
development, or (ii) the Invention results from any work performed by Employee
for the Company.
11. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION AND RESTRICTIVE COVENANTS
11.1 Confidential Information. During the course of his employment, Employee
will acquire knowledge of trade secrets and other proprietary information of the
Company ("Confidential Information") and may contribute to Confidential
Information through inventions, discoveries, improvements or some other manner.
Confidential Information includes, but is not limited to, nonpublic information
relating to the Company's business, operations, customers or technology,
including customer lists, vendor lists, pricing or financial information
concerning the Company and its vendors and customers, trade secrets, data,
documentation, concepts techniques, processes, know-how, marketing information,
designs, customer information, cost data, price lists, and pricing policies.
Confidential Information does not include information that is already public
knowledge or which can be obtained by reference to public sources. Employee
recognizes that all Confidential Information is the property of the Company and
agrees that, except as required by the duties of Employee's employment with the
Company, Employee shall never, directly or indirectly, use, publish, disseminate
or otherwise disclose any Confidential Information obtained during Employee's
employment with the Company without the prior written consent of the Company.
Employee acknowledges and agrees that the terms of this Section shall survive
the termination of his employment with the Company.
11.2 Non-Competition. Employee further acknowledges that his position with the
Company will give him a close knowledge of its policies, business and trade
secrets, and that Employee's continued and exclusive service to the Company
under this Agreement is of a high degree of importance and confidentiality.
Employee agrees that for a period of one year after the termination of
Employee's employment with the Company, Employee will not, directly or
indirectly, be employed by, engage in, consult with, or own an equity interest
in any entity or activities competitive with the business engaged in by the
Company during Employee's employment under this Agreement, without the written
consent of the Company.
11.3 Solicitation. During the term of his employment with the Company and for
the period of one year thereafter, Employee shall not: (i) seek to persuade,
directly or indirectly, any employee of the Company to discontinue that
individual's employment with the Company, or seek to persuade any such employee
to become employed in any activity similar to or competitive with the activities
of the Company, or (ii) directly or indirectly solicit from any person or entity
who was a customer of the Company and with whom Employee had business dealings
on behalf of the Company during the one-year period prior to the termination of
Employee's employment any business which is competitive with the business
activities of the Company, or cause or authorize such solicitation, for or on
behalf of Employee or any third party.
11.4 Unfair Competition. Employee agrees that the provisions of Section 10 and
11 of this Agreement are reasonably necessary to protect the rights of the
Company and to prevent unfair competition. The provisions of Sections 10 and 11
shall apply if Employee's employment is terminated at the end of the term of
this Agreement or otherwise. The period of the covenants contained in Sections
10 and 11 shall be extended by any period of time during which Employee is in
violation of said covenants, if any.
11.5 Severability. The parties agree that the covenants set forth in Sections 10
and 11 of this Agreement, including, without limitation, the scope, duration,
and geographic extent of such restrictions, are fair and reasonably necessary
for the protection of the Company's legitimate business interest. In the event a
court or arbitrator should decline to enforce any of such provisions, they shall
be deemed to be modified to restrict Employee to the maximum extent which the
court or arbitrator shall find enforceable.
11.6 Records. Upon termination of this Agreement, all documents, records, files,
notebooks, and similar repositories containing the information described in
Sections 10 and 11 of this Agreement, including all copies, then in Employee's
possession, whether prepared by Employee or others, shall be immediately
returned to the Company by Employee.
12. INJUNCTIVE RELIEF
Employee acknowledges that the breach or threatened breach of the nondisclosure,
non-competition or other agreements contained in this Agreement would give rise
to irreparable injury to the Company, which injury would be inadequately
compensable in money damages. The Company may, therefore, seek and obtain a
restraining order or injunction prohibiting the breach or threatened breach of
any provision, requirement or covenant of this Agreement, in addition to and not
in limitation of any other legal remedies that may be available.
13. MISCELLANEOUS
13.1 Entire Agreement. This Agreement contains the entire agreement between the
Company and Employee relating to the subject matter of this Agreement. No
modification of this Agreement shall be valid unless made in writing and signed
by both parties.
13.2 Notice. Any notice required or permitted to be give under this Agreement
shall be sufficient if in writing and delivered personally or sent by registered
or certified mail, receipt return requested, to Employee at his residence or to
the Company at its principal office.
13.3 Waiver. No waiver by the Company or Employee of any default or breach of
any term, condition or covenant of this Agreement shall be deemed to be a wavier
of any subsequent default or breach of the same or any other term, condition or
covenant contained in this Agreement.
13.4 Assignment and Successors. The rights and obligations of Employee under
this Agreement are personal and may not be assigned to any other person. This
Agreement will bind and benefit any successor of the Company, whether by merger,
sale of assets, reorganization or other form of acquisition, disposition or
business reorganization. In the event of Employee's death, any benefits due or
to become due under this Agreement shall become a part of Employee's estate and
shall be distributed to his personal representative.
13.5 Attorney's Fees. In the event of any dispute relating to interpretation or
enforcement of this Agreement, the prevailing party shall be entitled to recover
its reasonable attorneys' fees and costs, whether or not a lawsuit, arbitration
or other legal action is commenced.
13.6 Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Washington.
This Agreement is effective as of the date first above written.
PHAGE THERAPEUTICS, INC. (COMPANY):
By: /s/ Xxxxxx Xxxxx/s/
-----------------------
Its: Director
-------------
EMPLOYEE (EMPLOYEE):
/s/ Xxxxxxx Honour /s/
----------------------
Signature
Feb. 21, 2001
-------------
Date
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated November 1, 2000 ("Agreement") between Phage
Therapeutics, Inc., a Washington corporation ("Company") and Xxxxx Honour, MS,
LAC, a resident of Seattle, WA ("Employee").
WITNESSETH
WHEREAS, the Company wishes to employ Employee in the position of Manager, Data
Base Management Systems; and
WHEREAS, the Employee wishes to enter into the employ of the Company to fulfill
the responsibilities of the position of Manager, Data Base Management Systems;
NOW THEREFORE, in consideration of the foregoing and of the respective
covenants, obligations and agreements of the parties contained in this
Agreement, the parties, intending to be legally bound, hereby agree as follows:
1. EMPLOYMENT
The Company shall employ Employee, and Employee shall accept such employment,
upon the terms and conditions set forth in Agreement. Employee's employment with
the Company shall be subject to the Company's general employment policies and
practices. The Company reserves the right to modify such policies and practices
from time to time.
2. DUTIES
Employee shall be employed as Manager, Data Base Management Systems. During the
term of this Agreement, Employee shall devote his full time, attention and
efforts to the conduct of the business of the Company and the performance of his
duties under this Agreement. Employee shall not engage in any other business
activity, whether or not such activity is pursued for gain, profit or other
pecuniary advantage; provided that Employee shall not be prevented from
investing his personal assets in such form or manner as will not require any
services on the part of Employee in the operation of the affairs of the entities
in which such investments are made.
3. TERM
Subject to the terms and conditions set forth in this Agreement, Company shall
employ Employee and Employee shall serve the Company in the position of Manager,
Data Base Management Systems for a period commencing November 1, 2000
("Commencement Date") and continuing through the first anniversary of the
Commencement Date, unless such employment is sooner terminated as provided
herein. During this one (1) year period, Employee's compensation and other
benefits may be adjusted annually, or more often, without the necessity of an
amendment of this Agreement. The Employee's term of employment shall be extended
for additional one (1) year periods and on such terms and at such levels of
compensation as shall be mutually agreed to in writing by Company and Employee,
unless otherwise terminated under this Agreement.
4. COMPENSATION
For all services rendered by Employee under this Agreement, the Company agrees
to pay Employee and Employee agrees to accept the following:
4.1 Wage. An hourly wage of $25.00 ("Wage"), which shall be payable at the times
and in the manner set by the Company's standard payroll policy. Such Salary
shall be reviewed one (1) month prior to the anniversary of the Commencement
Date each year, and any increase in the amount under this Agreement for the
twelve (12) month period following the Commencement Date anniversary date shall
be determined at such time by the Board of Directors of the Company, or a
compensation committee formed by the Board of Directors.
4.2 Bonuses. Employee shall additionally be entitled to such cash and/or stock
bonuses and stock options as determined from time to time by the Board of
Directors of the Company, or their designated representatives(s). Cash bonuses,
if any, shall be paid subject to achievement of specific performance milestones
agreed to by both the Company and Employee.
5. CONTINUING EDUCATION
In the event that performance of Employee's responsibilities and duties within
the Company shall require or recommend certification, licensure, or continuing
education to maintain licensure, then Company shall upon notice, allow time
during business hours for the required activity and shall reimburse Employee for
reasonable expenses associated therewith including at least any registration
fees, license fees, travel, lodging and per diem fees.
6. WORKING FACILITIES
Employee shall be furnished with such facilities, services, and supplies as are
suitable and adequate for the performance of this duties under this Agreement.
7. EXPENSES
Employee shall be reimbursed by the Company for his reasonable expenses incurred
in connection with his employment and which are related to and in furtherance of
the Company's business, in accordance with the general policy of the Company
regarding reimbursement of expenses.
8. BENEFITS
Employee shall be entitled to all rights and benefits for which Employee is
eligible under any employee-benefits plan, including pension, stock or stock
option, profit sharing, health (including medical and dental), and life and
disability insurance plan, which the Company provides for its employees
generally. The Company reserves the right to change the benefits offered to
employees at any time.
9. TERMINATION
Employee's employment with the Company shall be terminated upon the occurrence
of any of the following events:
9.1 Death of Employee. In lieu of any other benefits which may be payable by the
Company with respect to death, in the event of such death, the Salary payable
hereunder shall continue to be paid at the then current rate for three (3)
months after the termination of employment. In the event of the death of the
Employee during the term of this Agreement, the sums payable hereunder shall be
paid to his personal representative;
9.2 Mutual agreement of termination in writing between the Company and Employee;
9.3 Disability of Employee that prevents him from performing the material and
substantial duties of his position for a period of two (2) months. In such
event, at the Company's option, the Company shall give Employee not less than 30
days' written notice of termination of employment. Employee shall continue to
render services to the Company (unless disabled) and shall be paid his full
salary as in effect at such time up to the date of termination. Nothing in this
Agreement, however, shall limit or diminish the Company's obligations towards
Employee with respect to the Americans with Disabilities Act of 1990, as
amended, the Family and Medical Leave Act of 1993, as amended, or any similar
state laws.
9.4 Written notice by either party to the other terminating the employment of
Employee as follows:
a. Notice of resignation by Employee to the Company, at least 30
days in advance;
b. Notice of termination of employment by the Company to Employee
with cause. For purposes of this Agreement, the Company shall
have "Cause" to terminate Employee's employment under this
Agreement upon Employee's: (a) willful breach of any of
Employee's material obligations under this Agreement, which
breach shall not have been remedied by Employee within ten (10)
days after the Company shall have given written notice to
Employee of such breach, or which such breach shall have been
repeated after lapse of such ten-day notice period; (b)
commission of an act which the Board of Directors of the Company
shall reasonably have found to have involved willful misconduct
or gross negligence on the part of Employee in the conduct of his
duties under this Agreement which materially injures the Company
or any of its subsidiaries or affiliates; (c) conviction of (or
pleading nolo contendere to) any felony or any misdemeanour
involving moral turpitude which might, in the reasonable judgment
of the Board of Directors of the Company, cause embarrassment to
the Company or any of its subsidiaries or affiliates; (d)
commission of a material act of personal dishonesty or breach of
fiduciary duty involving personal profit in connection with the
Employee's employment by the Company; or (e) habitual
absenteeism, chronic alcoholism, drug abuse or other form of
addiction which, in the reasonable judgment of the Board of
Directors, impairs Employee's ability to perform his duties or
injures the Company.
c. Notice of termination of employment by the Company to Employee
without cause or for good reason. For purposes of this Agreement,
the Company will have terminated Employee's employment with
Company under the Agreement without cause or for "Good Reason"
upon Company's: (a) financial inability to meet its financial
obligations; (b) desire to terminate Employee's employment for
reasons other than for Cause as defined above in Section 9.4.c;
(c) contemplation, consideration or execution of a financial or
business agreement or transaction that obligates Company to
reduce costs or staff or Employee's employment; (d) termination
of Employee's employment within 120 days of the date of a Change
of Control of the Company; or (e) failure to comply with the
terms fo this Agreement. In the event of termination of
Employee's employment under this Agreement by Employer without
cause or for Good Reason, Employer shall pay within ten (10) days
of such termination a severance payment equal to the compensation
that would have been paid to Employee for an additional three (3)
month period, at the same rate of pay per month as if Employee's
employment would not have been terminated. Employee's fringe
benefits and other benefits that were provided Employee under
Section 8 of this Agreement will be continued to the benefit of
Employee during the three month period of compensation after
termination without cause or for Good Reason.
Notwithstanding any termination of this Agreement pursuant to Section 9,
Employee shall remain bound by the provisions of Sections 10 and 11 below.
10. INVENTIONS
"Inventions" made or conceived entirely or partially by Employee while employed
by the Company shall be the exclusive property of the Company. For the purposes
of this Agreement, the term, "Inventions" includes, without limitation, all
creations, whether or not patentable or copyrightable, and all ideas, reports,
or other creative works including, without limitation, therapies, genetic
engineering tools and methods, gene expression systems and diagnostics and
therapeutic products derived therefrom, which related to the existing or
proposed business of the Company or to any other business or research or
development effort conducted by the Company. All of Employee's Inventions,
whether or not copyrightable or patentable, will be works for hire. Employee
will promptly disclose each Inventions to the Company in writing and cooperate
with the Company to patent or copyright all Inventions by executing all
documents tendered by the Company for the purpose of patenting or copyrighting
Employee's Inventions. This provision shall be construed in conformity with
Chapter 49.44 of the Revised Code of Washington. This provision does not apply
to an Invention for which no equipment, supplies, facilities, or trade secret
information of the Company was used and which was developed entirely on
Employee's own time unless (i) the Invention relates directly to the business of
the Company, or to the Company's actual or demonstrably anticipated research or
development, or (ii) the Invention results from any work performed by Employee
for the Company.
11. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION AND RESTRICTIVE COVENANTS
11.1 Confidential Information. During the course of his employment, Employee
will acquire knowledge of trade secrets and other proprietary information of the
Company ("Confidential Information") and may contribute to Confidential
Information through inventions, discoveries, improvements or some other manner.
Confidential Information includes, but is not limited to, nonpublic information
relating to the Company's business, operations, customers or technology,
including customer lists, vendor lists, pricing or financial information
concerning the Company and its vendors and customers, trade secrets, data,
documentation, concepts techniques, processes, know-how, marketing information,
designs, customer information, cost data, price lists, and pricing policies.
Confidential Information does not include information that is already public
knowledge or which can be obtained by reference to public sources. Employee
recognizes that all Confidential Information is the property of the Company and
agrees that, except as required by the duties of Employee's employment with the
Company, Employee shall never, directly or indirectly, use, publish, disseminate
or otherwise disclose any Confidential Information obtained during Employee's
employment with the Company without the prior written consent of the Company.
Employee acknowledges and agrees that the terms of this Section shall survive
the termination of his employment with the Company.
11.2 Non-Competition. Employee further acknowledges that his position with the
Company will give him a close knowledge of its policies, business and trade
secrets, and that Employee's continued and exclusive service to the Company
under this Agreement is of a high degree of importance and confidentiality.
Employee agrees that for a period of one year after the termination of
Employee's employment with the Company, Employee will not, directly or
indirectly, be employed by, engage in, consult with, or own an equity interest
in any entity or activities competitive with the business engaged in by the
Company during Employee's employment under this Agreement, without the written
consent of the Company.
11.3 Solicitation. During the term of his employment with the Company and for
the period of one year thereafter, Employee shall not: (i) seek to persuade,
directly or indirectly, any employee of the Company to discontinue that
individual's employment with the Company, or seek to persuade any such employee
to become employed in any activity similar to or competitive with the activities
of the Company, or (ii) directly or indirectly solicit from any person or entity
who was a customer of the Company and with whom Employee had business dealings
on behalf of the Company during the one-year period prior to the termination of
Employee's employment any business which is competitive with the business
activities of the Company, or cause or authorize such solicitation, for or on
behalf of Employee or any third party.
11.4 Unfair Competition. Employee agrees that the provisions of Section 10 and
11 of this Agreement are reasonably necessary to protect the rights of the
Company and to prevent unfair competition. The provisions of Sections 10 and 11
shall apply if Employee's employment is terminated at the end of the term of
this Agreement or otherwise. The period of the covenants contained in Sections
10 and 11 shall be extended by any period of time during which Employee is in
violation of said covenants, if any.
11.5 Severability. The parties agree that the covenants set forth in Sections 10
and 11 of this Agreement, including, without limitation, the scope, duration,
and geographic extent of such restrictions, are fair and reasonably necessary
for the protection of the Company's legitimate business interest. In the event a
court or arbitrator should decline to enforce any of such provisions, they shall
be deemed to be modified to restrict Employee to the maximum extent which the
court or arbitrator shall find enforceable.
11.6 Records. Upon termination of this Agreement, all documents, records, files,
notebooks, and similar repositories containing the information described in
Sections 10 and 11 of this Agreement, including all copies, then in Employee's
possession, whether prepared by Employee or others, shall be immediately
returned to the Company by Employee.
12. INJUNCTIVE RELIEF
Employee acknowledges that the breach or threatened breach of the nondisclosure,
non-competition or other agreements contained in this Agreement would give rise
to irreparable injury to the Company, which injury would be inadequately
compensable in money damages. The Company may, therefore, seek and obtain a
restraining order or injunction prohibiting the breach or threatened breach of
any provision, requirement or covenant of this Agreement, in addition to and not
in limitation of any other legal remedies that may be available.
13. MISCELLANEOUS
13.1 Entire Agreement. This Agreement contains the entire agreement between the
Company and Employee relating to the subject matter of this Agreement. No
modification of this Agreement shall be valid unless made in writing and signed
by both parties.
13.2 Notice. Any notice required or permitted to be give under this Agreement
shall be sufficient if in writing and delivered personally or sent by registered
or certified mail, receipt return requested, to Employee at his residence or to
the Company at its principal office.
13.3 Waiver. No waiver by the Company or Employee of any default or breach of
any term, condition or covenant of this Agreement shall be deemed to be a wavier
of any subsequent default or breach of the same or any other term, condition or
covenant contained in this Agreement.
13.4 Assignment and Successors. The rights and obligations of Employee under
this Agreement are personal and may not be assigned to any other person. This
Agreement will bind and benefit any successor of the Company, whether by merger,
sale of assets, reorganization or other form of acquisition, disposition or
business reorganization. In the event of Employee's death, any benefits due or
to become due under this Agreement shall become a part of Employee's estate and
shall be distributed to his personal representative.
13.5 Attorney's Fees. In the event of any dispute relating to interpretation or
enforcement of this Agreement, the prevailing party shall be entitled to recover
its reasonable attorneys' fees and costs, whether or not a lawsuit, arbitration
or other legal action is commenced.
13.6 Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Washington.
This Agreement is effective as of the date first above written.
PHAGE THERAPEUTICS, INC. (COMPANY):
By: /s/ Xxxxxxx X. Honour/s/
----------------------------
Its: President & CEO
--------------------
EMPLOYEE (EMPLOYEE):
/s/ Xxxxx Honour /s/
--------------------
Signature
Feb. 21, 2001
-------------
Date
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated November 1, 2000 ("Agreement") between Phage
Therapeutics, Inc., a Washington corporation ("Company") and Xxxxxxx Xxx, MS,
MBA, a resident of Seattle, WA ("Employee").
WITNESSETH
WHEREAS, the Company wishes to employ Employee in the position of Senior
Scientist; and
WHEREAS, the Employee wishes to enter into the employ of the Company to fulfill
the responsibilities of the position of Senior Scientist;
NOW THEREFORE, in consideration of the foregoing and of the respective
covenants, obligations and agreements of the parties contained in this
Agreement, the parties, intending to be legally bound, hereby agree as follows:
1. EMPLOYMENT
The Company shall employ Employee, and Employee shall accept such employment,
upon the terms and conditions set forth in Agreement. Employee's employment with
the Company shall be subject to the Company's general employment policies and
practices. The Company reserves the right to modify such policies and practices
from time to time.
2. DUTIES
Employee shall be employed as Senior Scientist. During the term of this
Agreement, Employee shall devote his full time, attention and efforts to the
conduct of the business of the Company and the performance of his duties under
this Agreement. Employee shall not engage in any other business activity,
whether or not such activity is pursued for gain, profit or other pecuniary
advantage; provided that Employee shall not be prevented from investing his
personal assets in such form or manner as will not require any services on the
part of Employee in the operation of the affairs of the entities in which such
investments are made.
3. TERM
Subject to the terms and conditions set forth in this Agreement, Company shall
employ Employee and Employee shall serve the Company in the position of Senior
Scientist for a period commencing November 1, 2000 ("Commencement Date") and
continuing through the first anniversary of the Commencement Date, unless such
employment is sooner terminated as provided herein. During this one (1) year
period, Employee's compensation and other benefits may be adjusted annually, or
more often, without the necessity of an amendment of this Agreement. The
Employee's term of employment shall be extended for additional one (1) year
periods and on such terms and at such levels of compensation as shall be
mutually agreed to in writing by Company and Employee, unless otherwise
terminated under this Agreement.
4. COMPENSATION
For all services rendered by Employee under this Agreement, the Company agrees
to pay Employee and Employee agrees to accept the following:
4.1 Salary. An annual salary of $60,000 ("Salary"), which shall be payable at
the times and in the manner set by the Company's standard payroll policy. Such
Salary shall be reviewed one (1) month prior to the anniversary of the
Commencement Date each year, and any increase in the amount under this Agreement
for the twelve (12) month period following the Commencement Date anniversary
date shall be determined at such time by the Board of Directors of the Company,
or a compensation committee formed by the Board of Directors.
4.2 Bonuses. Employee shall additionally be entitled to such cash and/or stock
bonuses and stock options as determined from time to time by the Board of
Directors of the Company, or their designated representatives(s). Cash bonuses,
if any, shall be paid subject to achievement of specific performance milestones
agreed to by both the Company and Employee.
5. CONTINUING EDUCATION
In the event that performance of Employee's responsibilities and duties within
the Company shall require or recommend certification, licensure, or continuing
education to maintain licensure, then Company shall upon notice, allow time
during business hours for the required activity and shall reimburse Employee for
reasonable expenses associated therewith including at least any registration
fees, license fees, travel, lodging and per diem fees.
6. WORKING FACILITIES
Employee shall be furnished with such facilities, services, and supplies as are
suitable and adequate for the performance of this duties under this Agreement.
7. EXPENSES
Employee shall be reimbursed by the Company for his reasonable expenses incurred
in connection with his employment and which are related to and in furtherance of
the Company's business, in accordance with the general policy of the Company
regarding reimbursement of expenses.
8. BENEFITS
Employee shall be entitled to all rights and benefits for which Employee is
eligible under any employee-benefits plan, including pension, stock or stock
option, profit sharing, health (including medical and dental), and life and
disability insurance plan, which the Company provides for its employees
generally. The Company reserves the right to change the benefits offered to
employees at any time.
9. TERMINATION
Employee's employment with the Company shall be terminated upon the occurrence
of any of the following events:
9.1 Death of Employee. In lieu of any other benefits which may be payable by the
Company with respect to death, in the event of such death, the Salary payable
hereunder shall continue to be paid at the then current rate for three (3)
months after the termination of employment. In the event of the death of the
Employee during the term of this Agreement, the sums payable hereunder shall be
paid to his personal representative;
9.2 Mutual agreement of termination in writing between the Company and Employee;
9.3 Disability of Employee that prevents him from performing the material and
substantial duties of his position for a period of two (2) months. In such
event, at the Company's option, the Company shall give Employee not less than 30
days' written notice of termination of employment. Employee shall continue to
render services to the Company (unless disabled) and shall be paid his full
salary as in effect at such time up to the date of termination. Nothing in this
Agreement, however, shall limit or diminish the Company's obligations towards
Employee with respect to the Americans with Disabilities Act of 1990, as
amended, the Family and Medical Leave Act of 1993, as amended, or any similar
state laws.
9.4 Written notice by either party to the other terminating the employment of
Employee as follows:
a. Notice of resignation by Employee to the Company, at least 30
days in advance;
b. Notice of termination of employment by the Company to Employee
with cause. For purposes of this Agreement, the Company shall
have "Cause" to terminate Employee's employment under this
Agreement upon Employee's: (a) willful breach of any of
Employee's material obligations under this Agreement, which
breach shall not have been remedied by Employee within ten (10)
days after the Company shall have given written notice to
Employee of such breach, or which such breach shall have been
repeated after lapse of such ten-day notice period; (b)
commission of an act which the Board of Directors of the Company
shall reasonably have found to have involved willful misconduct
or gross negligence on the part of Employee in the conduct of his
duties under this Agreement which materially injures the Company
or any of its subsidiaries or affiliates; (c) conviction of (or
pleading nolo contendere to) any felony or any misdemeanour
involving moral turpitude which might, in the reasonable judgment
of the Board of Directors of the Company, cause embarrassment to
the Company or any of its subsidiaries or affiliates; (d)
commission of a material act of personal dishonesty or breach of
fiduciary duty involving personal profit in connection with the
Employee's employment by the Company; or (e) habitual
absenteeism, chronic alcoholism, drug abuse or other form of
addiction which, in the reasonable judgment of the Board of
Directors, impairs Employee's ability to perform his duties or
injures the Company.
c. Notice of termination of employment by the Company to Employee
without cause or for good reason. For purposes of this Agreement,
the Company will have terminated Employee's employment with
Company under the Agreement without cause or for "Good Reason"
upon Company's: (a) financial inability to meet its financial
obligations; (b) desire to terminate Employee's employment for
reasons other than for Cause as defined above in Section 9.4.c;
(c) contemplation, consideration or execution of a financial or
business agreement or transaction that obligates Company to
reduce costs or staff or Employee's employment; (d) termination
of Employee's employment within 120 days of the date of a Change
of Control of the Company; or (e) failure to comply with the
terms fo this Agreement. In the event of termination of
Employee's employment under this Agreement by Employer without
cause or for Good Reason, Employer shall pay within ten (10) days
of such termination a severance payment equal to the compensation
that would have been paid to Employee for an additional three (3)
month period, at the same rate of pay per month as if Employee's
employment would not have been terminated. Employee's fringe
benefits and other benefits that were provided Employee under
Section 8 of this Agreement will be continued to the benefit of
Employee during the three month period of compensation after
termination without cause or for Good Reason.
Notwithstanding any termination of this Agreement pursuant to Section 9,
Employee shall remain bound by the provisions of Sections 10 and 11 below.
10. INVENTIONS
"Inventions" made or conceived entirely or partially by Employee while employed
by the Company shall be the exclusive property of the Company. For the purposes
of this Agreement, the term, "Inventions" includes, without limitation, all
creations, whether or not patentable or copyrightable, and all ideas, reports,
or other creative works including, without limitation, therapies, genetic
engineering tools and methods, gene expression systems and diagnostics and
therapeutic products derived therefrom, which related to the existing or
proposed business of the Company or to any other business or research or
development effort conducted by the Company. All of Employee's Inventions,
whether or not copyrightable or patentable, will be works for hire. Employee
will promptly disclose each Inventions to the Company in writing and cooperate
with the Company to patent or copyright all Inventions by executing all
documents tendered by the Company for the purpose of patenting or copyrighting
Employee's Inventions. This provision shall be construed in conformity with
Chapter 49.44 of the Revised Code of Washington. This provision does not apply
to an Invention for which no equipment, supplies, facilities, or trade secret
information of the Company was used and which was developed entirely on
Employee's own time unless (i) the Invention relates directly to the business of
the Company, or to the Company's actual or demonstrably anticipated research or
development, or (ii) the Invention results from any work performed by Employee
for the Company.
11. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION AND RESTRICTIVE COVENANTS
11.1 Confidential Information. During the course of his employment, Employee
will acquire knowledge of trade secrets and other proprietary information of the
Company ("Confidential Information") and may contribute to Confidential
Information through inventions, discoveries, improvements or some other manner.
Confidential Information includes, but is not limited to, nonpublic information
relating to the Company's business, operations, customers or technology,
including customer lists, vendor lists, pricing or financial information
concerning the Company and its vendors and customers, trade secrets, data,
documentation, concepts techniques, processes, know-how, marketing information,
designs, customer information, cost data, price lists, and pricing policies.
Confidential Information does not include information that is already public
knowledge or which can be obtained by reference to public sources. Employee
recognizes that all Confidential Information is the property of the Company and
agrees that, except as required by the duties of Employee's employment with the
Company, Employee shall never, directly or indirectly, use, publish, disseminate
or otherwise disclose any Confidential Information obtained during Employee's
employment with the Company without the prior written consent of the Company.
Employee acknowledges and agrees that the terms of this Section shall survive
the termination of his employment with the Company.
11.2 Non-Competition. Employee further acknowledges that his position with the
Company will give him a close knowledge of its policies, business and trade
secrets, and that Employee's continued and exclusive service to the Company
under this Agreement is of a high degree of importance and confidentiality.
Employee agrees that for a period of one year after the termination of
Employee's employment with the Company, Employee will not, directly or
indirectly, be employed by, engage in, consult with, or own an equity interest
in any entity or activities competitive with the business engaged in by the
Company during Employee's employment under this Agreement, without the written
consent of the Company.
11.3 Solicitation. During the term of his employment with the Company and for
the period of one year thereafter, Employee shall not: (i) seek to persuade,
directly or indirectly, any employee of the Company to discontinue that
individual's employment with the Company, or seek to persuade any such employee
to become employed in any activity similar to or competitive with the activities
of the Company, or (ii) directly or indirectly solicit from any person or entity
who was a customer of the Company and with whom Employee had business dealings
on behalf of the Company during the one-year period prior to the termination of
Employee's employment any business which is competitive with the business
activities of the Company, or cause or authorize such solicitation, for or on
behalf of Employee or any third party.
11.4 Unfair Competition. Employee agrees that the provisions of Section 10 and
11 of this Agreement are reasonably necessary to protect the rights of the
Company and to prevent unfair competition. The provisions of Sections 10 and 11
shall apply if Employee's employment is terminated at the end of the term of
this Agreement or otherwise. The period of the covenants contained in Sections
10 and 11 shall be extended by any period of time during which Employee is in
violation of said covenants, if any.
11.5 Severability. The parties agree that the covenants set forth in Sections 10
and 11 of this Agreement, including, without limitation, the scope, duration,
and geographic extent of such restrictions, are fair and reasonably necessary
for the protection of the Company's legitimate business interest. In the event a
court or arbitrator should decline to enforce any of such provisions, they shall
be deemed to be modified to restrict Employee to the maximum extent which the
court or arbitrator shall find enforceable.
11.6 Records. Upon termination of this Agreement, all documents, records, files,
notebooks, and similar repositories containing the information described in
Sections 10 and 11 of this Agreement, including all copies, then in Employee's
possession, whether prepared by Employee or others, shall be immediately
returned to the Company by Employee.
12. INJUNCTIVE RELIEF
Employee acknowledges that the breach or threatened breach of the nondisclosure,
non-competition or other agreements contained in this Agreement would give rise
to irreparable injury to the Company, which injury would be inadequately
compensable in money damages. The Company may, therefore, seek and obtain a
restraining order or injunction prohibiting the breach or threatened breach of
any provision, requirement or covenant of this Agreement, in addition to and not
in limitation of any other legal remedies that may be available.
13. MISCELLANEOUS
13.1 Entire Agreement. This Agreement contains the entire agreement between the
Company and Employee relating to the subject matter of this Agreement. No
modification of this Agreement shall be valid unless made in writing and signed
by both parties.
13.2 Notice. Any notice required or permitted to be give under this Agreement
shall be sufficient if in writing and delivered personally or sent by registered
or certified mail, receipt return requested, to Employee at his residence or to
the Company at its principal office.
13.3 Waiver. No waiver by the Company or Employee of any default or breach of
any term, condition or covenant of this Agreement shall be deemed to be a wavier
of any subsequent default or breach of the same or any other term, condition or
covenant contained in this Agreement.
13.4 Assignment and Successors. The rights and obligations of Employee under
this Agreement are personal and may not be assigned to any other person. This
Agreement will bind and benefit any successor of the Company, whether by merger,
sale of assets, reorganization or other form of acquisition, disposition or
business reorganization. In the event of Employee's death, any benefits due or
to become due under this Agreement shall become a part of Employee's estate and
shall be distributed to his personal representative.
13.5 Attorney's Fees. In the event of any dispute relating to interpretation or
enforcement of this Agreement, the prevailing party shall be entitled to recover
its reasonable attorneys' fees and costs, whether or not a lawsuit, arbitration
or other legal action is commenced.
13.6 Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Washington.
This Agreement is effective as of the date first above written.
PHAGE THERAPEUTICS, INC. (COMPANY):
By: /s/ Xxxxxxx X. Honour/s/
----------------------------
Its: President & CEO
--------------------
EMPLOYEE (EMPLOYEE):
/s/ Xxxx Xxx /s/
----------------
Signature
Feb. 21, 2001
-------------
Date
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated November 1, 2000 ("Agreement") between Phage
Therapeutics, Inc., a Washington corporation ("Company") and Xxxxxxx X. Xxxxxx,
MBA, a resident of Kenmore, WA ("Employee").
WITNESSETH
WHEREAS, the Company wishes to employ Employee in the position of Controller;
and
WHEREAS, the Employee wishes to enter into the employ of the Company to fulfill
the responsibilities of the position of Controller;
NOW THEREFORE, in consideration of the foregoing and of the respective
covenants, obligations and agreements of the parties contained in this
Agreement, the parties, intending to be legally bound, hereby agree as follows:
1. EMPLOYMENT
The Company shall employ Employee, and Employee shall accept such employment,
upon the terms and conditions set forth in Agreement. Employee's employment with
the Company shall be subject to the Company's general employment policies and
practices. The Company reserves the right to modify such policies and practices
from time to time.
2. DUTIES
Employee shall be employed as Controller. During the term of this Agreement,
Employee shall devote his full time, attention and efforts to the conduct of the
business of the Company and the performance of his duties under this Agreement.
Employee shall not engage in any other business activity, whether or not such
activity is pursued for gain, profit or other pecuniary advantage; provided that
Employee shall not be prevented from investing his personal assets in such form
or manner as will not require any services on the part of Employee in the
operation of the affairs of the entities in which such investments are made.
3. TERM
Subject to the terms and conditions set forth in this Agreement, Company shall
employ Employee and Employee shall serve the Company in the position of
Controller for a period commencing November 1, 2000 ("Commencement Date") and
continuing through the first anniversary of the Commencement Date, unless such
employment is sooner terminated as provided herein. During this one (1) year
period, Employee's compensation and other benefits may be adjusted annually, or
more often, without the necessity of an amendment of this Agreement. The
Employee's term of employment shall be extended for additional one (1) year
periods and on such terms and at such levels of compensation as shall be
mutually agreed to in writing by Company and Employee, unless otherwise
terminated under this Agreement.
4. COMPENSATION
For all services rendered by Employee under this Agreement, the Company agrees
to pay Employee and Employee agrees to accept the following:
4.1 Salary. An annual salary of $84,000 ("Salary"), which shall be payable at
the times and in the manner set by the Company's standard payroll policy. Such
Salary shall be reviewed one (1) month prior to the anniversary of the
Commencement Date each year, and any increase in the amount under this Agreement
for the twelve (12) month period following the Commencement Date anniversary
date shall be determined at such time by the Board of Directors of the Company,
or a compensation committee formed by the Board of Directors.
4.2 Bonuses. Employee shall additionally be entitled to such cash and/or stock
bonuses and stock options as determined from time to time by the Board of
Directors of the Company, or their designated representatives(s). Cash bonuses,
if any, shall be paid subject to achievement of specific performance milestones
agreed to by both the Company and Employee.
5. CONTINUING EDUCATION
In the event that performance of Employee's responsibilities and duties within
the Company shall require or recommend certification, licensure, or continuing
education to maintain licensure, then Company shall upon notice, allow time
during business hours for the required activity and shall reimburse Employee for
reasonable expenses associated therewith including at least any registration
fees, license fees, travel, lodging and per diem fees.
6. WORKING FACILITIES
Employee shall be furnished with such facilities, services, and supplies as are
suitable and adequate for the performance of this duties under this Agreement.
7. EXPENSES
Employee shall be reimbursed by the Company for his reasonable expenses incurred
in connection with his employment and which are related to and in furtherance of
the Company's business, in accordance with the general policy of the Company
regarding reimbursement of expenses.
8. BENEFITS
Employee shall be entitled to all rights and benefits for which Employee is
eligible under any employee-benefits plan, including pension, stock or stock
option, profit sharing, health (including medical and dental), and life and
disability insurance plan, which the Company provides for its employees
generally. The Company reserves the right to change the benefits offered to
employees at any time.
9. TERMINATION
Employee's employment with the Company shall be terminated upon the occurrence
of any of the following events:
9.1 Death of Employee. In lieu of any other benefits which may be payable by the
Company with respect to death, in the event of such death, the Salary payable
hereunder shall continue to be paid at the then current rate for three (3)
months after the termination of employment. In the event of the death of the
Employee during the term of this Agreement, the sums payable hereunder shall be
paid to his personal representative;
9.2 Mutual agreement of termination in writing between the Company and Employee;
9.3 Disability of Employee that prevents him from performing the material and
substantial duties of his position for a period of two (2) months. In such
event, at the Company's option, the Company shall give Employee not less than 30
days' written notice of termination of employment. Employee shall continue to
render services to the Company (unless disabled) and shall be paid his full
salary as in effect at such time up to the date of termination. Nothing in this
Agreement, however, shall limit or diminish the Company's obligations towards
Employee with respect to the Americans with Disabilities Act of 1990, as
amended, the Family and Medical Leave Act of 1993, as amended, or any similar
state laws.
9.4 Written notice by either party to the other terminating the employment of
Employee as follows:
a. Notice of resignation by Employee to the Company, at least 30
days in advance;
b. Notice of termination of employment by the Company to Employee
with cause. For purposes of this Agreement, the Company shall
have "Cause" to terminate Employee's employment under this
Agreement upon Employee's: (a) willful breach of any of
Employee's material obligations under this Agreement, which
breach shall not have been remedied by Employee within ten (10)
days after the Company shall have given written notice to
Employee of such breach, or which such breach shall have been
repeated after lapse of such ten-day notice period; (b)
commission of an act which the Board of Directors of the Company
shall reasonably have found to have involved willful misconduct
or gross negligence on the part of Employee in the conduct of his
duties under this Agreement which materially injures the Company
or any of its subsidiaries or affiliates; (c) conviction of (or
pleading nolo contendere to) any felony or any misdemeanour
involving moral turpitude which might, in the reasonable judgment
of the Board of Directors of the Company, cause embarrassment to
the Company or any of its subsidiaries or affiliates; (d)
commission of a material act of personal dishonesty or breach of
fiduciary duty involving personal profit in connection with the
Employee's employment by the Company; or (e) habitual
absenteeism, chronic alcoholism, drug abuse or other form of
addiction which, in the reasonable judgment of the Board of
Directors, impairs Employee's ability to perform his duties or
injures the Company.
c. Notice of termination of employment by the Company to Employee
without cause or for good reason. For purposes of this Agreement,
the Company will have terminated Employee's employment with
Company under the Agreement without cause or for "Good Reason"
upon Company's: (a) financial inability to meet its financial
obligations; (b) desire to terminate Employee's employment for
reasons other than for Cause as defined above in Section 9.4.c;
(c) contemplation, consideration or execution of a financial or
business agreement or transaction that obligates Company to
reduce costs or staff or Employee's employment; (d) termination
of Employee's employment within 120 days of the date of a Change
of Control of the Company; or (e) failure to comply with the
terms fo this Agreement. In the event of termination of
Employee's employment under this Agreement by Employer without
cause or for Good Reason, Employer shall pay within ten (10) days
of such termination a severance payment equal to the compensation
that would have been paid to Employee for an additional three (3)
month period, at the same rate of pay per month as if Employee's
employment would not have been terminated. Employee's fringe
benefits and other benefits that were provided Employee under
Section 8 of this Agreement will be continued to the benefit of
Employee during the three month period of compensation after
termination without cause or for Good Reason.
Notwithstanding any termination of this Agreement pursuant to Section 9,
Employee shall remain bound by the provisions of Sections 10 and 11 below.
10. INVENTIONS
"Inventions" made or conceived entirely or partially by Employee while employed
by the Company shall be the exclusive property of the Company. For the purposes
of this Agreement, the term, "Inventions" includes, without limitation, all
creations, whether or not patentable or copyrightable, and all ideas, reports,
or other creative works including, without limitation, therapies, genetic
engineering tools and methods, gene expression systems and diagnostics and
therapeutic products derived therefrom, which related to the existing or
proposed business of the Company or to any other business or research or
development effort conducted by the Company. All of Employee's Inventions,
whether or not copyrightable or patentable, will be works for hire. Employee
will promptly disclose each Inventions to the Company in writing and cooperate
with the Company to patent or copyright all Inventions by executing all
documents tendered by the Company for the purpose of patenting or copyrighting
Employee's Inventions. This provision shall be construed in conformity with
Chapter 49.44 of the Revised Code of Washington. This provision does not apply
to an Invention for which no equipment, supplies, facilities, or trade secret
information of the Company was used and which was developed entirely on
Employee's own time unless (i) the Invention relates directly to the business of
the Company, or to the Company's actual or demonstrably anticipated research or
development, or (ii) the Invention results from any work performed by Employee
for the Company.
11. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION AND RESTRICTIVE COVENANTS
11.1 Confidential Information. During the course of his employment, Employee
will acquire knowledge of trade secrets and other proprietary information of the
Company ("Confidential Information") and may contribute to Confidential
Information through inventions, discoveries, improvements or some other manner.
Confidential Information includes, but is not limited to, nonpublic information
relating to the Company's business, operations, customers or technology,
including customer lists, vendor lists, pricing or financial information
concerning the Company and its vendors and customers, trade secrets, data,
documentation, concepts techniques, processes, know-how, marketing information,
designs, customer information, cost data, price lists, and pricing policies.
Confidential Information does not include information that is already public
knowledge or which can be obtained by reference to public sources. Employee
recognizes that all Confidential Information is the property of the Company and
agrees that, except as required by the duties of Employee's employment with the
Company, Employee shall never, directly or indirectly, use, publish, disseminate
or otherwise disclose any Confidential Information obtained during Employee's
employment with the Company without the prior written consent of the Company.
Employee acknowledges and agrees that the terms of this Section shall survive
the termination of his employment with the Company.
11.2 Non-Competition. Employee further acknowledges that his position with the
Company will give him a close knowledge of its policies, business and trade
secrets, and that Employee's continued and exclusive service to the Company
under this Agreement is of a high degree of importance and confidentiality.
Employee agrees that for a period of one year after the termination of
Employee's employment with the Company, Employee will not, directly or
indirectly, be employed by, engage in, consult with, or own an equity interest
in any entity or activities competitive with the business engaged in by the
Company during Employee's employment under this Agreement, without the written
consent of the Company.
11.3 Solicitation. During the term of his employment with the Company and for
the period of one year thereafter, Employee shall not: (i) seek to persuade,
directly or indirectly, any employee of the Company to discontinue that
individual's employment with the Company, or seek to persuade any such employee
to become employed in any activity similar to or competitive with the activities
of the Company, or (ii) directly or indirectly solicit from any person or entity
who was a customer of the Company and with whom Employee had business dealings
on behalf of the Company during the one-year period prior to the termination of
Employee's employment any business which is competitive with the business
activities of the Company, or cause or authorize such solicitation, for or on
behalf of Employee or any third party.
11.4 Unfair Competition. Employee agrees that the provisions of Section 10 and
11 of this Agreement are reasonably necessary to protect the rights of the
Company and to prevent unfair competition. The provisions of Sections 10 and 11
shall apply if Employee's employment is terminated at the end of the term of
this Agreement or otherwise. The period of the covenants contained in Sections
10 and 11 shall be extended by any period of time during which Employee is in
violation of said covenants, if any.
11.5 Severability. The parties agree that the covenants set forth in Sections 10
and 11 of this Agreement, including, without limitation, the scope, duration,
and geographic extent of such restrictions, are fair and reasonably necessary
for the protection of the Company's legitimate business interest. In the event a
court or arbitrator should decline to enforce any of such provisions, they shall
be deemed to be modified to restrict Employee to the maximum extent which the
court or arbitrator shall find enforceable.
11.6 Records. Upon termination of this Agreement, all documents, records, files,
notebooks, and similar repositories containing the information described in
Sections 10 and 11 of this Agreement, including all copies, then in Employee's
possession, whether prepared by Employee or others, shall be immediately
returned to the Company by Employee.
12. INJUNCTIVE RELIEF
Employee acknowledges that the breach or threatened breach of the nondisclosure,
non-competition or other agreements contained in this Agreement would give rise
to irreparable injury to the Company, which injury would be inadequately
compensable in money damages. The Company may, therefore, seek and obtain a
restraining order or injunction prohibiting the breach or threatened breach of
any provision, requirement or covenant of this Agreement, in addition to and not
in limitation of any other legal remedies that may be available.
13. MISCELLANEOUS
13.1 Entire Agreement. This Agreement contains the entire agreement between the
Company and Employee relating to the subject matter of this Agreement. No
modification of this Agreement shall be valid unless made in writing and signed
by both parties.
13.2 Notice. Any notice required or permitted to be give under this Agreement
shall be sufficient if in writing and delivered personally or sent by registered
or certified mail, receipt return requested, to Employee at his residence or to
the Company at its principal office.
13.3 Waiver. No waiver by the Company or Employee of any default or breach of
any term, condition or covenant of this Agreement shall be deemed to be a wavier
of any subsequent default or breach of the same or any other term, condition or
covenant contained in this Agreement.
13.4 Assignment and Successors. The rights and obligations of Employee under
this Agreement are personal and may not be assigned to any other person. This
Agreement will bind and benefit any successor of the Company, whether by merger,
sale of assets, reorganization or other form of acquisition, disposition or
business reorganization. In the event of Employee's death, any benefits due or
to become due under this Agreement shall become a part of Employee's estate and
shall be distributed to his personal representative.
13.5 Attorney's Fees. In the event of any dispute relating to interpretation or
enforcement of this Agreement, the prevailing party shall be entitled to recover
its reasonable attorneys' fees and costs, whether or not a lawsuit, arbitration
or other legal action is commenced.
13.6 Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Washington.
This Agreement is effective as of the date first above written.
PHAGE THERAPEUTICS, INC. (COMPANY):
By: /s/ Xxxxxxx X. Honour/s/
----------------------------
Its: President & CEO
--------------------
EMPLOYEE (EMPLOYEE):
/s/ Xxxxxxx X. Xxxxxx /s/
-------------------------
Signature
Feb. 21, 2001
-------------
Date
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated November 1, 2000 ("Agreement") between Phage
Therapeutics, Inc., a Washington corporation ("Company") and Xxxxxxx X. Xxxxxx,
a resident of Kenmore, WA ("Employee").
WITNESSETH
WHEREAS, the Company wishes to employ Employee in the position of Facilities
Manager; and
WHEREAS, the Employee wishes to enter into the employ of the Company to fulfill
the responsibilities of the position of Facilities Manager;
NOW THEREFORE, in consideration of the foregoing and of the respective
covenants, obligations and agreements of the parties contained in this
Agreement, the parties, intending to be legally bound, hereby agree as follows:
1. EMPLOYMENT
The Company shall employ Employee, and Employee shall accept such employment,
upon the terms and conditions set forth in Agreement. Employee's employment with
the Company shall be subject to the Company's general employment policies and
practices. The Company reserves the right to modify such policies and practices
from time to time.
2. DUTIES
Employee shall be employed as Facilities Manager. During the term of this
Agreement, Employee shall devote his full time, attention and efforts to the
conduct of the business of the Company and the performance of his duties under
this Agreement. Employee shall not engage in any other business activity,
whether or not such activity is pursued for gain, profit or other pecuniary
advantage; provided that Employee shall not be prevented from investing his
personal assets in such form or manner as will not require any services on the
part of Employee in the operation of the affairs of the entities in which such
investments are made.
3. TERM
Subject to the terms and conditions set forth in this Agreement, Company shall
employ Employee and Employee shall serve the Company in the position of
Facilities Manager for a period commencing November 1, 2000 ("Commencement
Date") and continuing through the first anniversary of the Commencement Date,
unless such employment is sooner terminated as provided herein. During this one
(1) year period, Employee's compensation and other benefits may be adjusted
annually, or more often, without the necessity of an amendment of this
Agreement. The Employee's term of employment shall be extended for additional
one (1) year periods and on such terms and at such levels of compensation as
shall be mutually agreed to in writing by Company and Employee, unless otherwise
terminated under this Agreement.
4. COMPENSATION
For all services rendered by Employee under this Agreement, the Company agrees
to pay Employee and Employee agrees to accept the following:
4.1 Wage. An hourly wage of $17.00 ("Wage"), which shall be payable at the times
and in the manner set by the Company's standard payroll policy. Such Salary
shall be reviewed one (1) month prior to the anniversary of the Commencement
Date each year, and any increase in the amount under this Agreement for the
twelve (12) month period following the Commencement Date anniversary date shall
be determined at such time by the Board of Directors of the Company, or a
compensation committee formed by the Board of Directors.
4.2 Bonuses. Employee shall additionally be entitled to such cash and/or stock
bonuses and stock options as determined from time to time by the Board of
Directors of the Company, or their designated representatives(s). Cash bonuses,
if any, shall be paid subject to achievement of specific performance milestones
agreed to by both the Company and Employee.
5. CONTINUING EDUCATION
In the event that performance of Employee's responsibilities and duties within
the Company shall require or recommend certification, licensure, or continuing
education to maintain licensure, then Company shall upon notice, allow time
during business hours for the required activity and shall reimburse Employee for
reasonable expenses associated therewith including at least any registration
fees, license fees, travel, lodging and per diem fees.
6. WORKING FACILITIES
Employee shall be furnished with such facilities, services, and supplies as are
suitable and adequate for the performance of this duties under this Agreement.
7. EXPENSES
Employee shall be reimbursed by the Company for his reasonable expenses incurred
in connection with his employment and which are related to and in furtherance of
the Company's business, in accordance with the general policy of the Company
regarding reimbursement of expenses.
8. BENEFITS
Employee shall be entitled to all rights and benefits for which Employee is
eligible under any employee-benefits plan, including pension, stock or stock
option, profit sharing, health (including medical and dental), and life and
disability insurance plan, which the Company provides for its employees
generally. The Company reserves the right to change the benefits offered to
employees at any time.
9. TERMINATION
Employee's employment with the Company shall be terminated upon the occurrence
of any of the following events:
9.1 Death of Employee. In lieu of any other benefits which may be payable by the
Company with respect to death, in the event of such death, the Salary payable
hereunder shall continue to be paid at the then current rate for three (3)
months after the termination of employment. In the event of the death of the
Employee during the term of this Agreement, the sums payable hereunder shall be
paid to his personal representative;
9.2 Mutual agreement of termination in writing between the Company and Employee;
9.3 Disability of Employee that prevents him from performing the material and
substantial duties of his position for a period of two (2) months. In such
event, at the Company's option, the Company shall give Employee not less than 30
days' written notice of termination of employment. Employee shall continue to
render services to the Company (unless disabled) and shall be paid his full
salary as in effect at such time up to the date of termination. Nothing in this
Agreement, however, shall limit or diminish the Company's obligations towards
Employee with respect to the Americans with Disabilities Act of 1990, as
amended, the Family and Medical Leave Act of 1993, as amended, or any similar
state laws.
9.4 Written notice by either party to the other terminating the employment of
Employee as follows:
a. Notice of resignation by Employee to the Company, at least 30
days in advance;
b. Notice of termination of employment by the Company to Employee
with cause. For purposes of this Agreement, the Company shall
have "Cause" to terminate Employee's employment under this
Agreement upon Employee's: (a) willful breach of any of
Employee's material obligations under this Agreement, which
breach shall not have been remedied by Employee within ten (10)
days after the Company shall have given written notice to
Employee of such breach, or which such breach shall have been
repeated after lapse of such ten-day notice period; (b)
commission of an act which the Board of Directors of the Company
shall reasonably have found to have involved willful misconduct
or gross negligence on the part of Employee in the conduct of his
duties under this Agreement which materially injures the Company
or any of its subsidiaries or affiliates; (c) conviction of (or
pleading nolo contendere to) any felony or any misdemeanour
involving moral turpitude which might, in the reasonable judgment
of the Board of Directors of the Company, cause embarrassment to
the Company or any of its subsidiaries or affiliates; (d)
commission of a material act of personal dishonesty or breach of
fiduciary duty involving personal profit in connection with the
Employee's employment by the Company; or (e) habitual
absenteeism, chronic alcoholism, drug abuse or other form of
addiction which, in the reasonable judgment of the Board of
Directors, impairs Employee's ability to perform his duties or
injures the Company.
c. Notice of termination of employment by the Company to Employee
without cause or for good reason. For purposes of this Agreement,
the Company will have terminated Employee's employment with
Company under the Agreement without cause or for "Good Reason"
upon Company's: (a) financial inability to meet its financial
obligations; (b) desire to terminate Employee's employment for
reasons other than for Cause as defined above in Section 9.4.c;
(c) contemplation, consideration or execution of a financial or
business agreement or transaction that obligates Company to
reduce costs or staff or Employee's employment; (d) termination
of Employee's employment within 120 days of the date of a Change
of Control of the Company; or (e) failure to comply with the
terms fo this Agreement. In the event of termination of
Employee's employment under this Agreement by Employer without
cause or for Good Reason, Employer shall pay within ten (10) days
of such termination a severance payment equal to the compensation
that would have been paid to Employee for an additional three (3)
month period, at the same rate of pay per month as if Employee's
employment would not have been terminated. Employee's fringe
benefits and other benefits that were provided Employee under
Section 8 of this Agreement will be continued to the benefit of
Employee during the three month period of compensation after
termination without cause or for Good Reason.
Notwithstanding any termination of this Agreement pursuant to Section 9,
Employee shall remain bound by the provisions of Sections 10 and 11 below.
10. INVENTIONS
"Inventions" made or conceived entirely or partially by Employee while employed
by the Company shall be the exclusive property of the Company. For the purposes
of this Agreement, the term, "Inventions" includes, without limitation, all
creations, whether or not patentable or copyrightable, and all ideas, reports,
or other creative works including, without limitation, therapies, genetic
engineering tools and methods, gene expression systems and diagnostics and
therapeutic products derived therefrom, which related to the existing or
proposed business of the Company or to any other business or research or
development effort conducted by the Company. All of Employee's Inventions,
whether or not copyrightable or patentable, will be works for hire. Employee
will promptly disclose each Inventions to the Company in writing and cooperate
with the Company to patent or copyright all Inventions by executing all
documents tendered by the Company for the purpose of patenting or copyrighting
Employee's Inventions. This provision shall be construed in conformity with
Chapter 49.44 of the Revised Code of Washington. This provision does not apply
to an Invention for which no equipment, supplies, facilities, or trade secret
information of the Company was used and which was developed entirely on
Employee's own time unless (i) the Invention relates directly to the business of
the Company, or to the Company's actual or demonstrably anticipated research or
development, or (ii) the Invention results from any work performed by Employee
for the Company.
11. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION AND RESTRICTIVE COVENANTS
11.1 Confidential Information. During the course of his employment, Employee
will acquire knowledge of trade secrets and other proprietary information of the
Company ("Confidential Information") and may contribute to Confidential
Information through inventions, discoveries, improvements or some other manner.
Confidential Information includes, but is not limited to, nonpublic information
relating to the Company's business, operations, customers or technology,
including customer lists, vendor lists, pricing or financial information
concerning the Company and its vendors and customers, trade secrets, data,
documentation, concepts techniques, processes, know-how, marketing information,
designs, customer information, cost data, price lists, and pricing policies.
Confidential Information does not include information that is already public
knowledge or which can be obtained by reference to public sources. Employee
recognizes that all Confidential Information is the property of the Company and
agrees that, except as required by the duties of Employee's employment with the
Company, Employee shall never, directly or indirectly, use, publish, disseminate
or otherwise disclose any Confidential Information obtained during Employee's
employment with the Company without the prior written consent of the Company.
Employee acknowledges and agrees that the terms of this Section shall survive
the termination of his employment with the Company.
11.2 Non-Competition. Employee further acknowledges that his position with the
Company will give him a close knowledge of its policies, business and trade
secrets, and that Employee's continued and exclusive service to the Company
under this Agreement is of a high degree of importance and confidentiality.
Employee agrees that for a period of one year after the termination of
Employee's employment with the Company, Employee will not, directly or
indirectly, be employed by, engage in, consult with, or own an equity interest
in any entity or activities competitive with the business engaged in by the
Company during Employee's employment under this Agreement, without the written
consent of the Company.
11.3 Solicitation. During the term of his employment with the Company and for
the period of one year thereafter, Employee shall not: (i) seek to persuade,
directly or indirectly, any employee of the Company to discontinue that
individual's employment with the Company, or seek to persuade any such employee
to become employed in any activity similar to or competitive with the activities
of the Company, or (ii) directly or indirectly solicit from any person or entity
who was a customer of the Company and with whom Employee had business dealings
on behalf of the Company during the one-year period prior to the termination of
Employee's employment any business which is competitive with the business
activities of the Company, or cause or authorize such solicitation, for or on
behalf of Employee or any third party.
11.4 Unfair Competition. Employee agrees that the provisions of Section 10 and
11 of this Agreement are reasonably necessary to protect the rights of the
Company and to prevent unfair competition. The provisions of Sections 10 and 11
shall apply if Employee's employment is terminated at the end of the term of
this Agreement or otherwise. The period of the covenants contained in Sections
10 and 11 shall be extended by any period of time during which Employee is in
violation of said covenants, if any.
11.5 Severability. The parties agree that the covenants set forth in Sections 10
and 11 of this Agreement, including, without limitation, the scope, duration,
and geographic extent of such restrictions, are fair and reasonably necessary
for the protection of the Company's legitimate business interest. In the event a
court or arbitrator should decline to enforce any of such provisions, they shall
be deemed to be modified to restrict Employee to the maximum extent which the
court or arbitrator shall find enforceable.
11.6 Records. Upon termination of this Agreement, all documents, records, files,
notebooks, and similar repositories containing the information described in
Sections 10 and 11 of this Agreement, including all copies, then in Employee's
possession, whether prepared by Employee or others, shall be immediately
returned to the Company by Employee.
12. INJUNCTIVE RELIEF
Employee acknowledges that the breach or threatened breach of the nondisclosure,
non-competition or other agreements contained in this Agreement would give rise
to irreparable injury to the Company, which injury would be inadequately
compensable in money damages. The Company may, therefore, seek and obtain a
restraining order or injunction prohibiting the breach or threatened breach of
any provision, requirement or covenant of this Agreement, in addition to and not
in limitation of any other legal remedies that may be available.
13. MISCELLANEOUS
13.1 Entire Agreement. This Agreement contains the entire agreement between the
Company and Employee relating to the subject matter of this Agreement. No
modification of this Agreement shall be valid unless made in writing and signed
by both parties.
13.2 Notice. Any notice required or permitted to be give under this Agreement
shall be sufficient if in writing and delivered personally or sent by registered
or certified mail, receipt return requested, to Employee at his residence or to
the Company at its principal office.
13.3 Waiver. No waiver by the Company or Employee of any default or breach of
any term, condition or covenant of this Agreement shall be deemed to be a wavier
of any subsequent default or breach of the same or any other term, condition or
covenant contained in this Agreement.
13.4 Assignment and Successors. The rights and obligations of Employee under
this Agreement are personal and may not be assigned to any other person. This
Agreement will bind and benefit any successor of the Company, whether by merger,
sale of assets, reorganization or other form of acquisition, disposition or
business reorganization. In the event of Employee's death, any benefits due or
to become due under this Agreement shall become a part of Employee's estate and
shall be distributed to his personal representative.
13.5 Attorney's Fees. In the event of any dispute relating to interpretation or
enforcement of this Agreement, the prevailing party shall be entitled to recover
its reasonable attorneys' fees and costs, whether or not a lawsuit, arbitration
or other legal action is commenced.
13.6 Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Washington.
This Agreement is effective as of the date first above written.
PHAGE THERAPEUTICS, INC. (COMPANY):
By: /s/ Xxxxxxx X. Honour/s/
----------------------------
Its: President & CEO
----------------------------
EMPLOYEE (EMPLOYEE):
/s/ Xxxxxxx Xxxxxx /s/
----------------------
Signature
Feb. 21, 2001
-------------
Date
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated December 6, 2000 ("Agreement") between Phage
Therapeutics, Inc., a Washington corporation ("Company") and Xxxxx Xxxxxxx, BS,
MT (ASCP), a resident of Everett, WA ("Employee").
WITNESSETH
WHEREAS, the Company wishes to employ Employee in the position of Manager,
Quality Assurance & Quality Control; and
WHEREAS, the Employee wishes to enter into the employ of the Company to fulfill
the responsibilities of the position of Manager, Quality Assurance & Quality
Control;
NOW THEREFORE, in consideration of the foregoing and of the respective
covenants, obligations and agreements of the parties contained in this
Agreement, the parties, intending to be legally bound, hereby agree as follows:
1. EMPLOYMENT
The Company shall employ Employee, and Employee shall accept such employment,
upon the terms and conditions set forth in Agreement. Employee's employment with
the Company shall be subject to the Company's general employment policies and
practices. The Company reserves the right to modify such policies and practices
from time to time.
2. DUTIES
Employee shall be employed as Manager, Quality Assurance & Quality Control.
During the term of this Agreement, Employee shall devote his full time,
attention and efforts to the conduct of the business of the Company and the
performance of his duties under this Agreement. Employee shall not engage in any
other business activity, whether or not such activity is pursued for gain,
profit or other pecuniary advantage; provided that Employee shall not be
prevented from investing his personal assets in such form or manner as will not
require any services on the part of Employee in the operation of the affairs of
the entities in which such investments are made.
3. TERM
Subject to the terms and conditions set forth in this Agreement, Company shall
employ Employee and Employee shall serve the Company in the position of Manager,
Quality Assurance & Quality Control for a period commencing December 6, 2000
("Commencement Date") and continuing through the first anniversary of the
Commencement Date, unless such employment is sooner terminated as provided
herein. During this one (1) year period, Employee's compensation and other
benefits may be adjusted annually, or more often, without the necessity of an
amendment of this Agreement. The Employee's term of employment shall be extended
for additional one (1) year periods and on such terms and at such levels of
compensation as shall be mutually agreed to in writing by Company and Employee,
unless otherwise terminated under this Agreement.
4. COMPENSATION
For all services rendered by Employee under this Agreement, the Company agrees
to pay Employee and Employee agrees to accept the following:
4.1 Salary. An annual salary of $60,000 ("Salary"), which shall be payable at
the times and in the manner set by the Company's standard payroll policy. Such
Salary shall be reviewed one (1) month prior to the anniversary of the
Commencement Date each year, and any increase in the amount under this Agreement
for the twelve (12) month period following the Commencement Date anniversary
date shall be determined at such time by the Board of Directors of the Company,
or a compensation committee formed by the Board of Directors.
4.2 Bonuses. Employee shall additionally be entitled to such cash and/or stock
bonuses and stock options as determined from time to time by the Board of
Directors of the Company, or their designated representatives(s). Cash bonuses,
if any, shall be paid subject to achievement of specific performance milestones
agreed to by both the Company and Employee.
5. CONTINUING EDUCATION
In the event that performance of Employee's responsibilities and duties within
the Company shall require or recommend certification, licensure, or continuing
education to maintain licensure, then Company shall upon notice, allow time
during business hours for the required activity and shall reimburse Employee for
reasonable expenses associated therewith including at least any registration
fees, license fees, travel, lodging and per diem fees.
6. WORKING FACILITIES
Employee shall be furnished with such facilities, services, and supplies as are
suitable and adequate for the performance of this duties under this Agreement.
7. EXPENSES
Employee shall be reimbursed by the Company for his reasonable expenses incurred
in connection with his employment and which are related to and in furtherance of
the Company's business, in accordance with the general policy of the Company
regarding reimbursement of expenses.
8. BENEFITS
Employee shall be entitled to all rights and benefits for which Employee is
eligible under any employee-benefits plan, including pension, stock or stock
option, profit sharing, health (including medical and dental), and life and
disability insurance plan, which the Company provides for its employees
generally. The Company reserves the right to change the benefits offered to
employees at any time.
9. TERMINATION
Employee's employment with the Company shall be terminated upon the occurrence
of any of the following events:
9.1 Death of Employee. In lieu of any other benefits which may be payable by the
Company with respect to death, in the event of such death, the Salary payable
hereunder shall continue to be paid at the then current rate for three (3)
months after the termination of employment. In the event of the death of the
Employee during the term of this Agreement, the sums payable hereunder shall be
paid to his personal representative;
9.2 Mutual agreement of termination in writing between the Company and Employee;
9.3 Disability of Employee that prevents him from performing the material and
substantial duties of his position for a period of two (2) months. In such
event, at the Company's option, the Company shall give Employee not less than 30
days' written notice of termination of employment. Employee shall continue to
render services to the Company (unless disabled) and shall be paid his full
salary as in effect at such time up to the date of termination. Nothing in this
Agreement, however, shall limit or diminish the Company's obligations towards
Employee with respect to the Americans with Disabilities Act of 1990, as
amended, the Family and Medical Leave Act of 1993, as amended, or any similar
state laws.
9.4 Written notice by either party to the other terminating the employment of
Employee as follows:
a. Notice of resignation by Employee to the Company, at least 30
days in advance;
b. Notice of termination of employment by the Company to Employee
with cause. For purposes of this Agreement, the Company shall
have "Cause" to terminate Employee's employment under this
Agreement upon Employee's: (a) willful breach of any of
Employee's material obligations under this Agreement, which
breach shall not have been remedied by Employee within ten (10)
days after the Company shall have given written notice to
Employee of such breach, or which such breach shall have been
repeated after lapse of such ten-day notice period; (b)
commission of an act which the Board of Directors of the Company
shall reasonably have found to have involved willful misconduct
or gross negligence on the part of Employee in the conduct of his
duties under this Agreement which materially injures the Company
or any of its subsidiaries or affiliates; (c) conviction of (or
pleading nolo contendere to) any felony or any misdemeanour
involving moral turpitude which might, in the reasonable judgment
of the Board of Directors of the Company, cause embarrassment to
the Company or any of its subsidiaries or affiliates; (d)
commission of a material act of personal dishonesty or breach of
fiduciary duty involving personal profit in connection with the
Employee's employment by the Company; or (e) habitual
absenteeism, chronic alcoholism, drug abuse or other form of
addiction which, in the reasonable judgment of the Board of
Directors, impairs Employee's ability to perform his duties or
injures the Company.
c. Notice of termination of employment by the Company to Employee
without cause or for good reason. For purposes of this Agreement,
the Company will have terminated Employee's employment with
Company under the Agreement without cause or for "Good Reason"
upon Company's: (a) financial inability to meet its financial
obligations; (b) desire to terminate Employee's employment for
reasons other than for Cause as defined above in Section 9.4.c;
(c) contemplation, consideration or execution of a financial or
business agreement or transaction that obligates Company to
reduce costs or staff or Employee's employment; (d) termination
of Employee's employment within 120 days of the date of a Change
of Control of the Company; or (e) failure to comply with the
terms fo this Agreement. In the event of termination of
Employee's employment under this Agreement by Employer without
cause or for Good Reason, Employer shall pay within ten (10) days
of such termination a severance payment equal to the compensation
that would have been paid to Employee for an additional three (3)
month period, at the same rate of pay per month as if Employee's
employment would not have been terminated. Employee's fringe
benefits and other benefits that were provided Employee under
Section 8 of this Agreement will be continued to the benefit of
Employee during the three month period of compensation after
termination without cause or for Good Reason.
Notwithstanding any termination of this Agreement pursuant to Section 9,
Employee shall remain bound by the provisions of Sections 10 and 11 below.
10. INVENTIONS
"Inventions" made or conceived entirely or partially by Employee while employed
by the Company shall be the exclusive property of the Company. For the purposes
of this Agreement, the term, "Inventions" includes, without limitation, all
creations, whether or not patentable or copyrightable, and all ideas, reports,
or other creative works including, without limitation, therapies, genetic
engineering tools and methods, gene expression systems and diagnostics and
therapeutic products derived therefrom, which related to the existing or
proposed business of the Company or to any other business or research or
development effort conducted by the Company. All of Employee's Inventions,
whether or not copyrightable or patentable, will be works for hire. Employee
will promptly disclose each Inventions to the Company in writing and cooperate
with the Company to patent or copyright all Inventions by executing all
documents tendered by the Company for the purpose of patenting or copyrighting
Employee's Inventions. This provision shall be construed in conformity with
Chapter 49.44 of the Revised Code of Washington. This provision does not apply
to an Invention for which no equipment, supplies, facilities, or trade secret
information of the Company was used and which was developed entirely on
Employee's own time unless (i) the Invention relates directly to the business of
the Company, or to the Company's actual or demonstrably anticipated research or
development, or (ii) the Invention results from any work performed by Employee
for the Company.
11. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION AND RESTRICTIVE COVENANTS
11.1 Confidential Information. During the course of his employment, Employee
will acquire knowledge of trade secrets and other proprietary information of the
Company ("Confidential Information") and may contribute to Confidential
Information through inventions, discoveries, improvements or some other manner.
Confidential Information includes, but is not limited to, nonpublic information
relating to the Company's business, operations, customers or technology,
including customer lists, vendor lists, pricing or financial information
concerning the Company and its vendors and customers, trade secrets, data,
documentation, concepts techniques, processes, know-how, marketing information,
designs, customer information, cost data, price lists, and pricing policies.
Confidential Information does not include information that is already public
knowledge or which can be obtained by reference to public sources. Employee
recognizes that all Confidential Information is the property of the Company and
agrees that, except as required by the duties of Employee's employment with the
Company, Employee shall never, directly or indirectly, use, publish, disseminate
or otherwise disclose any Confidential Information obtained during Employee's
employment with the Company without the prior written consent of the Company.
Employee acknowledges and agrees that the terms of this Section shall survive
the termination of his employment with the Company.
11.2 Non-Competition. Employee further acknowledges that his position with the
Company will give him a close knowledge of its policies, business and trade
secrets, and that Employee's continued and exclusive service to the Company
under this Agreement is of a high degree of importance and confidentiality.
Employee agrees that for a period of one year after the termination of
Employee's employment with the Company, Employee will not, directly or
indirectly, be employed by, engage in, consult with, or own an equity interest
in any entity or activities competitive with the business engaged in by the
Company during Employee's employment under this Agreement, without the written
consent of the Company.
11.3 Solicitation. During the term of his employment with the Company and for
the period of one year thereafter, Employee shall not: (i) seek to persuade,
directly or indirectly, any employee of the Company to discontinue that
individual's employment with the Company, or seek to persuade any such employee
to become employed in any activity similar to or competitive with the activities
of the Company, or (ii) directly or indirectly solicit from any person or entity
who was a customer of the Company and with whom Employee had business dealings
on behalf of the Company during the one-year period prior to the termination of
Employee's employment any business which is competitive with the business
activities of the Company, or cause or authorize such solicitation, for or on
behalf of Employee or any third party.
11.4 Unfair Competition. Employee agrees that the provisions of Section 10 and
11 of this Agreement are reasonably necessary to protect the rights of the
Company and to prevent unfair competition. The provisions of Sections 10 and 11
shall apply if Employee's employment is terminated at the end of the term of
this Agreement or otherwise. The period of the covenants contained in Sections
10 and 11 shall be extended by any period of time during which Employee is in
violation of said covenants, if any.
11.5 Severability. The parties agree that the covenants set forth in Sections 10
and 11 of this Agreement, including, without limitation, the scope, duration,
and geographic extent of such restrictions, are fair and reasonably necessary
for the protection of the Company's legitimate business interest. In the event a
court or arbitrator should decline to enforce any of such provisions, they shall
be deemed to be modified to restrict Employee to the maximum extent which the
court or arbitrator shall find enforceable.
11.6 Records. Upon termination of this Agreement, all documents, records, files,
notebooks, and similar repositories containing the information described in
Sections 10 and 11 of this Agreement, including all copies, then in Employee's
possession, whether prepared by Employee or others, shall be immediately
returned to the Company by Employee.
12. INJUNCTIVE RELIEF
Employee acknowledges that the breach or threatened breach of the nondisclosure,
non-competition or other agreements contained in this Agreement would give rise
to irreparable injury to the Company, which injury would be inadequately
compensable in money damages. The Company may, therefore, seek and obtain a
restraining order or injunction prohibiting the breach or threatened breach of
any provision, requirement or covenant of this Agreement, in addition to and not
in limitation of any other legal remedies that may be available.
13. MISCELLANEOUS
13.1 Entire Agreement. This Agreement contains the entire agreement between the
Company and Employee relating to the subject matter of this Agreement. No
modification of this Agreement shall be valid unless made in writing and signed
by both parties.
13.2 Notice. Any notice required or permitted to be give under this Agreement
shall be sufficient if in writing and delivered personally or sent by registered
or certified mail, receipt return requested, to Employee at his residence or to
the Company at its principal office.
13.3 Waiver. No waiver by the Company or Employee of any default or breach of
any term, condition or covenant of this Agreement shall be deemed to be a wavier
of any subsequent default or breach of the same or any other term, condition or
covenant contained in this Agreement.
13.4 Assignment and Successors. The rights and obligations of Employee under
this Agreement are personal and may not be assigned to any other person. This
Agreement will bind and benefit any successor of the Company, whether by merger,
sale of assets, reorganization or other form of acquisition, disposition or
business reorganization. In the event of Employee's death, any benefits due or
to become due under this Agreement shall become a part of Employee's estate and
shall be distributed to his personal representative.
13.5 Attorney's Fees. In the event of any dispute relating to interpretation or
enforcement of this Agreement, the prevailing party shall be entitled to recover
its reasonable attorneys' fees and costs, whether or not a lawsuit, arbitration
or other legal action is commenced.
13.6 Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Washington.
This Agreement is effective as of the date first above written.
PHAGE THERAPEUTICS, INC. (COMPANY):
By: /s/ Xxxxxxx X. Honour/s/
----------------------------
Its: President & CEO
--------------------
EMPLOYEE (EMPLOYEE):
/s/ Xxxxx Sytlebo /s/
---------------------
Signature
Feb. 21, 2001
-------------
Date
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated May 1, 2001 ("Agreement") between Phage Therapeutics,
Inc., a Washington corporation ("Company") and Xxxx X. Xxxxxxxx, BS, a resident
of Bothellt, WA ("Employee").
WITNESSETH
WHEREAS, the Company wishes to employ Employee in the position of Manager,
Microbiology; and
WHEREAS, the Employee wishes to enter into the employ of the Company to fulfill
the responsibilities of the position of Manager, Microbiology;
NOW THEREFORE, in consideration of the foregoing and of the respective
covenants, obligations and agreements of the parties contained in this
Agreement, the parties, intending to be legally bound, hereby agree as follows:
1. EMPLOYMENT
The Company shall employ Employee, and Employee shall accept such employment,
upon the terms and conditions set forth in Agreement. Employee's employment with
the Company shall be subject to the Company's general employment policies and
practices. The Company reserves the right to modify such policies and practices
from time to time.
2. DUTIES
Employee shall be employed as Manager, Microbiology. During the term of this
Agreement, Employee shall devote her full time, attention and efforts to the
conduct of the business of the Company and the performance of her duties under
this Agreement. Employee shall not engage in any other business activity,
whether or not such activity is pursued for gain, profit or other pecuniary
advantage; provided that Employee shall not be prevented from investing her
personal assets in such form or manner as will not require any services on the
part of Employee in the operation of the affairs of the entities in which such
investments are made.
(3) TERM
Subject to the terms and conditions set forth in this Agreement, Company shall
employ Employee and Employee shall serve the Company in the position of Manager,
Microbiology for a period commencing May 1, 2001 ("Commencement Date") and
continuing through the first anniversary of the Commencement Date, unless such
employment is sooner terminated as provided herein. During this one (1) year
period, Employee's compensation and other benefits may be adjusted annually, or
more often, without the necessity of an amendment of this Agreement. The
Employee's term of employment shall be extended for additional one (1) year
periods and on such terms and at such levels of compensation as shall be
mutually agreed to in writing by Company and Employee, unless otherwise
terminated under this Agreement.
4. COMPENSATION
For all services rendered by Employee under this Agreement, the Company agrees
to pay Employee and Employee agrees to accept the following:
4.1 Salary. An annual salary of $40,000 ("Salary"), which shall be payable at
the times and in the manner set by the Company's standard payroll policy. Such
Salary shall be reviewed one (1) month prior to the anniversary of the
Commencement Date each year, and any increase in the amount under this Agreement
for the twelve (12) month period following the Commencement Date anniversary
date shall be determined at such time by the Board of Directors of the Company,
or a compensation committee formed by the Board of Directors.
4.2 Bonuses. Employee shall additionally be entitled to such cash and/or stock
bonuses and stock options as determined from time to time by the Board of
Directors of the Company, or their designated representatives(s). Cash bonuses,
if any, shall be paid subject to achievement of specific performance milestones
agreed to by both the Company and Employee.
5. CONTINUING EDUCATION
In the event that performance of Employee's responsibilities and duties within
the Company shall require or recommend certification, licensure, or continuing
education to maintain licensure, then Company shall upon notice, allow time
during business hours for the required activity and shall reimburse Employee for
reasonable expenses associated therewith including at least any registration
fees, license fees, travel, lodging and per diem fees.
6. WORKING FACILITIES
Employee shall be furnished with such facilities, services, and supplies as are
suitable and adequate for the performance of her duties under this Agreement.
7. EXPENSES
Employee shall be reimbursed by the Company for her reasonable expenses incurred
in connection with her employment and which are
related to and in furtherance of the Company's business, in accordance with the
general policy of the Company regarding reimbursement of expenses.
8. BENEFITS
Employee shall be entitled to all rights and benefits for which Employee is
eligible under any employee-benefits plan, including pension, stock or stock
option, profit sharing, health (including medical and dental), and life and
disability insurance plan, which the Company provides for its employees
generally. The Company reserves the right to change the benefits offered to
employees at any time.
9. TERMINATION
Employee's employment with the Company shall be terminated upon the occurrence
of any of the following events:
9.1 Death of Employee. In lieu of any other benefits which may be payable by the
Company with respect to death, in the event of such death, the Salary payable
hereunder shall continue to be paid at the then current rate for three (3)
months after the termination of employment. In the event of the death of the
Employee during the term of this Agreement, the sums payable hereunder shall be
paid to her personal representative;
9.2 Mutual agreement of termination in writing between the Company and Employee;
9.3 Disability of Employee that prevents her from performing the material and
substantial duties of her position for a period of two (2) months. In such
event, at the Company's option, the Company shall give Employee not less than 30
days' written notice of termination of employment. Employee shall continue to
render services to the Company (unless disabled) and shall be paid her full
salary as in effect at such time up to the date of termination. Nothing in this
Agreement, however, shall limit or diminish the Company's obligations towards
Employee with respect to the Americans with Disabilities Act of 1990, as
amended, the Family and Medical Leave Act of 1993, as amended, or any similar
state laws.
9.4 Written notice by either party to the other terminating the employment of
Employee as follows:
a. Notice of resignation by Employee to the Company, at least 30 days in
advance;
b. Notice of termination of employment by the Company to Employee with
cause. For purposes of this Agreement, the Company shall have "Cause"
to terminate Employee's employment under this Agreement upon
Employee's: (a) willful breach of any of Employee's material
obligations under this Agreement, which breach shall not have been
remedied by Employee within ten (10) days after the Company shall have
given written notice to Employee of such breach, or which such breach
shall have been repeated after lapse of such ten-day notice period;
(b) commission of an act which the Board of Directors of the Company
shall reasonably have found to have involved willful misconduct or
gross negligence on the part of Employee in the conduct of her duties
under this Agreement which materially injures the Company or any of
its subsidiaries or affiliates; (c) conviction of (or pleading nolo
contendere to) any felony or any misdemeanour involving moral
turpitude which might, in the reasonable judgment of the Board of
Directors of the Company, cause embarrassment to the Company or any of
its subsidiaries or affiliates; (d) commission of a material act of
personal dishonesty or breach of fiduciary duty involving personal
profit in connection with the Employee's employment by the Company; or
(e) habitual absenteeism, chronic alcoholism, drug abuse or other form
of addiction which, in the reasonable judgment of the Board of
Directors, impairs Employee's ability to perform her duties or injures
the Company.
c. Notice of termination of employment by the Company to Employee without
cause or for good reason. For purposes of this Agreement, the Company
will have terminated Employee's employment with Company under the
Agreement without cause or for "Good Reason" upon Company's: (a)
financial inability to meet its financial obligations; (b) desire to
terminate Employee's employment for reasons other than for Cause as
defined above in Section 9.4.c; (c) contemplation, consideration or
execution of a financial or business agreement or transaction that
obligates Company to reduce costs or staff or Employee's employment;
(d) termination of Employee's employment within 120 days of the date
of a Change of Control of the Company; or (e) failure to comply with
the terms fo this Agreement. In the event of termination of Employee's
employment under this Agreement by Employer without cause or for Good
Reason, Employer shall pay within ten (10) days of such termination a
severance payment equal to the compensation that would have been paid
to Employee for an additional three (3) month period, at the same rate
of pay per month as if Employee's employment would not have been
terminated. Employee's fringe benefits and other benefits that were
provided Employee under Section 8 of this Agreement will be continued
to the benefit of Employee during the three month period of
compensation after termination without cause or for Good Reason.
Notwithstanding any termination of this Agreement pursuant to Section 9,
Employee shall remain bound by the provisions of Sections 10 and 11 below.
10) INVENTIONS
"Inventions" made or conceived entirely or partially by Employee while employed
by the Company shall be the exclusive property of the Company. For the purposes
of this Agreement, the term, "Inventions" includes, without limitation, all
creations, whether or not patentable or copyrightable, and all ideas, reports,
or other creative works including, without limitation, therapies, genetic
engineering tools and methods, gene expression systems and diagnostics and
therapeutic products derived therefrom, which related to the existing or
proposed
business of the Company or to any other business or research or development
effort conducted by the Company. All of Employee's Inventions, whether or not
copyrightable or patentable, will be works for hire. Employee will promptly
disclose each Inventions to the Company in writing and cooperate with the
Company to patent or copyright all Inventions by executing all documents
tendered by the Company for the purpose of patenting or copyrighting Employee's
Inventions. This provision shall be construed in conformity with Chapter 49.44
of the Revised Code of Washington. This provision does not apply to an Invention
for which no equipment, supplies, facilities, or trade secret information of the
Company was used and which was developed entirely on Employee's own time unless
(i) the Invention relates directly to the business of the Company, or to the
Company's actual or demonstrably anticipated research or development, or (ii)
the Invention results from any work performed by Employee for the Company.
11) NON-DISCLOSURE OF CONFIDENTIAL INFORMATION AND RESTRICTIVE COVENANTS
11.1 Confidential Information. During the course of her employment, Employee
will acquire knowledge of trade secrets and other proprietary information of the
Company ("Confidential Information") and may contribute to Confidential
Information through inventions, discoveries, improvements or some other manner.
Confidential Information includes, but is not limited to, nonpublic information
relating to the Company's business, operations, customers or technology,
including customer lists, vendor lists, pricing or financial information
concerning the Company and its vendors and customers, trade secrets, data,
documentation, concepts techniques, processes, know-how, marketing information,
designs, customer information, cost data, price lists, and pricing policies.
Confidential Information does not include information that is already public
knowledge or which can be obtained by reference to public sources. Employee
recognizes that all Confidential Information is the property of the Company and
agrees that, except as required by the duties of Employee's employment with the
Company, Employee shall never, directly or indirectly, use, publish, disseminate
or otherwise disclose any Confidential Information obtained during Employee's
employment with the Company without the prior written consent of the Company.
Employee acknowledges and agrees that the terms of this Section shall survive
the termination of her employment with the Company.
11.2 Non-Competition. Employee further acknowledges that her position with the
Company will give her close knowledge of its policies, business and trade
secrets, and that Employee's continued and exclusive service to the Company
under this Agreement is of a high degree of importance and confidentiality.
Employee agrees that for a period of one year after the termination of
Employee's employment with the Company, Employee will not, directly or
indirectly, be employed by, engage in, consult with, or own an equity interest
in any entity or activities competitive with the business engaged in by the
Company during Employee's employment under this Agreement, without the written
consent of the Company.
11.3 Solicitation. During the term of her employment with the Company and for
the period of one year thereafter, Employee shall not: (i) seek to persuade,
directly or indirectly, any employee of the Company to discontinue that
individual's employment with the Company, or seek to persuade any such employee
to become employed in any activity similar to or competitive with the activities
of the Company, or (ii) directly or indirectly solicit from any person or entity
who was a customer of the Company and with whom Employee had business dealings
on behalf of the Company during the one-year period prior to the termination of
Employee's employment any business which is competitive with the business
activities of the Company, or cause or authorize such solicitation, for or on
behalf of Employee or any third party.
11.4 Unfair Competition. Employee agrees that the provisions of Section 10 and
11 of this Agreement are reasonably necessary to protect the rights of the
Company and to prevent unfair competition. The provisions of Sections 10 and 11
shall apply if Employee's employment is terminated at the end of the term of
this Agreement or otherwise. The period of the covenants contained in Sections
10 and 11 shall be extended by any period of time during which Employee is in
violation of said covenants, if any.
11.5 Severability. The parties agree that the covenants set forth in Sections 10
and 11 of this Agreement, including, without limitation, the scope, duration,
and geographic extent of such restrictions, are fair and reasonably necessary
for the protection of the Company's legitimate business interest. In the event a
court or arbitrator should decline to enforce any of such provisions, they shall
be deemed to be modified to restrict Employee to the maximum extent which the
court or arbitrator shall find enforceable.
11.6 Records. Upon termination of this Agreement, all documents, records, files,
notebooks, and similar repositories containing the information described in
Sections 10 and 11 of this Agreement, including all copies, then in Employee's
possession, whether prepared by Employee or others, shall be immediately
returned to the Company by Employee.
12. INJUNCTIVE RELIEF
Employee acknowledges that the breach or threatened breach of the nondisclosure,
non-competition or other agreements contained in this Agreement would give rise
to irreparable injury to the Company, which injury would be inadequately
compensable in money damages. The Company may, therefore, seek and obtain a
restraining order or injunction prohibiting the breach or threatened breach of
any provision, requirement or covenant of this Agreement, in addition to and not
in limitation of any other legal remedies that may be available.
13. MISCELLANEOUS
13.1 Entire Agreement. This Agreement contains the entire agreement between the
Company and Employee relating to the subject matter of this Agreement. No
modification of this Agreement shall be valid unless made in writing and signed
by both parties.
13.2 Notice. Any notice required or permitted to be give under this Agreement
shall be sufficient if in writing and delivered personally or sent by registered
or certified mail, receipt return requested, to Employee at her residence or to
the Company at its principal office.
13.3 Waiver. No waiver by the Company or Employee of any default or breach of
any term, condition or covenant of this Agreement shall
be deemed to be a wavier of any subsequent default or breach of the same or any
other term, condition or covenant contained in this Agreement.
13.4 Assignment and Successors. The rights and obligations of Employee under
this Agreement are personal and may not be assigned to any other person. This
Agreement will bind and benefit any successor of the Company, whether by merger,
sale of assets, reorganization or other form of acquisition, disposition or
business reorganization. In the event of Employee's death, any benefits due or
to become due under this Agreement shall become a part of Employee's estate and
shall be distributed to her personal representative.
13.5 Attorney's Fees. In the event of any dispute relating to interpretation or
enforcement of this Agreement, the prevailing party shall be entitled to recover
its reasonable attorneys' fees and costs, whether or not a lawsuit, arbitration
or other legal action is commenced.
13.6 Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Washington.
This Agreement is effective as of the date first above written.
PHAGE THERAPEUTICS, INC. (COMPANY):
By: /s/ Xxxxxxx X. Honour/s/
Its: President & CEO
May 4, 2001
EMPLOYEE (EMPLOYEE):
/s/ Xxxx Xxxxxxxx /s/
Signature
May 4, 2001
Date
