EXHIBIT 10.3
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, effectively dated as of January 1, 2001,
is made by and between Phage Therapeutics, Inc ("Company") and Xxxxxxx X. Honour
("Employee").
W I T N E S E T H:
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WHEREAS, the Company wishes to employ or continue the employment of Employee in
the position of Vice President of Research and Development; and
WHEREAS, the Employee wishes to enter into the employ of, or continue employment
with Company to fulfill the responsibilities of the position of Vice President
of Research and 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) Term of Employment
Subject to the terms and conditions of this Agreement, Company shall employ
Employee, and Employee shall serve Company in the position of Vice President of
Research and Development, for a period commencing on January 1, 2001
("Commencement Date") and continuing through the first anniversary of
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 to 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 the terms of this Agreement. Such term of
employment, as it shall be extended, is hereafter referred to as the "Term of
Employment."
(2) Position and Duties
During the Term of Employment, the Employee shall serve in the position of
Vice President of Research and Development with responsibility for research,
based on the policies and direction provided by the Board of Directors or its
designated representative. The Employee shall, during the Term of Employment,
serve the Company faithfully, diligently and competently to the best of his
ability, and shall hold, in addition to the position of Vice President of
Research and Development, such other Employee positions in Company as to which
he/she may be elected, appointed or assigned from time to time by the Board of
Directors, and shall discharge such latter additional Employee duties in
connection therewith to same faith, diligence and competence. Employee shall
devote all of his business time in performance of his/her duties hereunder;
provided, however, that nothwithstanding any provision in this Agreement to the
contrary, Employee shall not be precluded from devoting reasonable periods of
time for serving as a member of committees or advisory boards of companies or
organizations not competitive with and not in conflict with Company business
interests, so long as such memberships or activities do not interfere with the
performance of Employee's duties under this Agreement.
c) Compensation
a) Salary. Company will, during the Term of Employment, pay to
Employee as compensation for performance of his/her duties and obligations
here-in-under, a salary at the rate of 120,000 per annum("Salary") for
full-time employment, with any additional part-time employment being
pro-rated. Payment shall be made in approximately equal installments not
less than twice per month and otherwise in accordance with Company
customary payroll practices. Such base 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 Board of Directors of Company, or a compensation committee
formed by the Board of Directors of Company.
(3) Expenses and Benefits
1) Expenses. All travel and other reasonable business expenses
incident February 6, 2001
to the rendering of services by Employee under this Agreement shall be paid
or reimbursed by Company within 30 days subject to submission by Employee
from time to time of vouchers and receipts in accordance with Company's
then in effect Personnel policies and procedures.
2) Benefits. During the Term of Employment, Employee shall be entitled
to participate in all employee and fringe benefits generally provided on an
ongoing basis to other members of Company's management who are similarly
situated, including without limitation, all pensions, profit sharing,
incentives, retirement plans, insurance, health and disability benefits and
plans in accordance with eligibility and other requirements of Company's
then effective Personnel policies and procedures.
3) Cash and Stock Bonuses: Stock Options. 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 Company, or their
designated representative(s). Cash bonuses, if any, shall be paid subject
to achievement of specific performance milestones agreed to by both Company
and Employee.
4) Personal Days. During the term of this Agreement, Employee shall be
entitled to an amount of vacation time and sick time ("Personal Days") as
in accordance with Company's then effective Personnel policies and
procedures, or such other time as may be agreed upon by Company and
Employee, to be taken consistent with Company's then effective Personnel
policies and procedures and consistent with effective discharge of
Employee's duties. Personal Days shall accrue on a pro-rata basis during
the term of Agreement, and in no case shall the amount of time so accruing
be less than 1.7 days per month. Employee shall be entitled to payment with
respect to Personal Days remaining at the end of the year, or if Company's
then effective Personnel policies and procedures provide, and Employee so
chooses, time remaining shall roll over to the next one (1) year Agreement
Period.
5) Continuing Education. In the even 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.
(4) Death or Disability.
(1) This Agreement shall be terminated by the death of Employee. In
addition, this Agreement may be terminated by Board of Directors of Company
if Employee shall be rendered incapable by mental or physical illness,
injury or disease or any other disability from satisfactorily complying
with the terms, conditions and provisions of this Agreement, and
obligations and responsibilities of Employee's position, for a period in
excess of ninety (90) days (whether or not conservative) or sixty (60) days
consecutively, as the case may be, during any consecutive six (6) month
period during the Term of Employment ("Disability"). If this Agreement is
terminated by reason of Disability of Employee, Company shall give written
notice to that effect to Employee in the manner provided in this Agreement.
In the event that Employee receives disability insurance benefits paid for
by Company during any period prior to termination of this Agreement
pursuant to this section 5(a), Employee's salary shall be reduced by an
amount equal to such disability insurance benefits during such period.
b. In lieu of any benefits which may be payable by Company with
respect to death or Disability of Employee, in the event of such death or
Disability, the Salary payable hereunder shall continue to be paid at the
then current rate for nine (9) months after the termination of employment.
In the event of the death of Employee during the term of this Agreement,
the sums payable hereunder shall be paid to his/her personal
representative.
(5) Disclosure of Information, Inventions and Discoveries.
Employee is employed to invent, and during the term of this Agreement
Employee shall promptly disclose to Company all conceived, developed working or
non-working discoveries, trademarks, copyrightable materials, and other
information relating to the bacteriophage business of Company including bu not
limited to compositions, processes, therapeutic methods of use ("Developments"),
whether or not conceived or developed during regular working hours or through
use of material or facilities or Company, and Employee shall promptly deliver to
Company all memorandums, writings, electronic recordings, drawings, sketches,
models and other data and records relating to such Developments. In the event
any such Development shall be deemed by Company to be patentable, copyrightable
or otherwise registerable, Employee shall, at the expense of Company, assist
Company in obtaining patents, trademarks or copyrights thereon and shall execute
all documents necessary or supportive in obtaining such rights including patent
application continuations, continuations-in-part, divisionals and international
filings, and Employee shall vest all rights to any such Development in Company,
including full complete title and interest, by executing all documents required
therefor.
(6) Non-Disclosure
Employee shall not, at any time during the Term of Employment and for any
period of five (5) years thereafter, divulge, furnish or otherwise make
accessible to anyone (other than in the regular course of business of Company or
as may be required by law) or use for his own account, or for the account on any
person, any knowledge or information with respect to confidential, proprietary
or secret process, tradesecret, invention, discovery, improvement, formulae
plan, marketing plan, sales plan, data, device, idea or other know-how or
development, whether patentable, copyrightable or otherwise, registerable or
not, with respect to any business activity of Company including without
limitation, publications, lists of contacts, customer lists, customer contacts,
supplier lists, contract relationships, pricing arrangements, and the like with
customers, suppliers or contractors.
(7) Non-Compete .
Company and Employee agree that the services rendered by Employee under
this Agreement are unique and irreplaceable. Employee agrees that during the
Term of Employment and for a period of twelve (12) months thereafter, Employee
shall not: (a) conduct business or initiate activities, engage or participate
for or in, directly or indirectly (whether as an officer, director, employee,
partner, consultant, holder of an equity or debt investment, lender, advisor),
or lend his/her name (or any part or variant thereof) to any business, in any
part of the world, which is, or as a result of the Employee's engagement or
participation would become, competitive with any aspect of Company's
bacteriophage business including therapies, genetic engineering tools and
methods, expression systems and diagnostics and therapeutic products derived
therefrom; (b) deal, directly or indirectly, in a competitive manner with any
customers doing business with Company during the Term of Engagement (except in
connection with the performance of the duties and obligations of Employee to
Company during the Term of Employment); (c) solicit any officer, director,
employee or agent of Company to become an officer, director, employee or agent
of Employee, his respective affiliates or anyone else; or, (d) engage in or
participate in, directly, any business conducted under any name that shall be
the same or similar to the name of the Company or trade name used by it.
Ownership, in the aggregate, of less that 2% of the outstanding shares or
capital stock of any corporation with one or more classes of its capital stock
listed on a national securities exchange or publicly traded in the
over-the-counter market shall not constitute a violation of the foregoing
provision.
(8) Termination for Cause
Company shall have the right to terminate Employee's employment under this
Agreement at any time for Cause (as hereinafter defined). For purposes of this
Agreement 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 Company shall have been 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) willful and continued misconduct that
is materially injurious, in the reasonable judgement of the Board of Directors
of Company, to Company or any of its subsidiaries, shareholders or affiliates;
(c) conviction of (or pleading nolo contendere to) any felony or any misdemeanor
involving moral turpitude which might, in the reasonable judgment of the Board
of Directors of Company, to 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
Company; (e) commission of an act which the Board of Directors of 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 injuries Company; or (f) 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 injuries
the Company. In the event of termination under this section 9, the Company's
obligations under this Agreement shall cease and Employee shall forfeit all
right to receive any future compensation under this Agreement. Notwithstanding
any termination of this Agreement pursuant to section 9, Employee in
consideration of his employment under this Agreement to the date of such
termination, shall remain bound by the provisions of sections 6, 7, 8 and 12 of
this Agreement.
(9) Other Terminations
(1) Notwithstanding any other provisions of this Agreement, Company
shall have the right to terminate Employee's employment under this
Agreement or give notice of its intent not to renew this agreement, at any
time without cause. Upon termination of Employee's services or non-renewal
of Agreement for reasons other than cause during the one (1) year term of
this Agreement, Employee will be entitled to six (6) months written notice
of such intent to terminate, or severance pay at Employee's then current
salary for a period of nine (9) months from the date of termination.
(2) Notwithstanding any other provisions of this Agreement, Company
may terminate this Agreement if (i) the Board of Directors of Company
determines, in good faith, that the Company's financial position is such
that it is not able to meet it s obligations under this Agreement and under
other employment agreements to which Company is party, and (ii) all other
employment agreements are similarly terminated. In the event of termination
of this Agreement under this
section 10(b), Employee shall have no right to any severance pay or
benefits beyond the termination date and Company may continue to employ
Employee on an "at-will" basis.
(10) Resignation
In the event that Employee's services hereunder are terminated under any of
the provisions of this Agreement (except by death), Employee agrees that he will
deliver his written resignation as an officer and/or director of Company to the
Board of Directors, such resignation to become effective immediately; provided,
however, that nothing herein shall be deemed to affect the provisions of section
6, 7, 8 and 12 of this Agreement relating to the survival of those sections
following termination of Employee's services hereunder; and provided, further,
that except as expressly provided in this Agreement, Employee shall be entitled
to no further compensation hereunder.
(11) Property
Upon termination of the Term of Employment or termination pursuant to
section 5, 9 or 10 of this Agreement, Employee or his/her personal
representative shall promptly deliver to Company all books, memorandums, plans,
records and written data of every kind relating to the business and affairs of
Company and al other property owned by Company which is then in Employee's
possession.
(12) Insurance
Company shall have the right, at its own cost and expense, to apply for and
to secure in its own name, or otherwise, life, health or accident insurance or
any or all of them covering Employee, and Employee agrees to submit to usual and
customary medical examinations and otherwise to cooperate with Company in
connection with the procurement of any such insurance, and any claims
thereunder.
(13) Specific Performance
Employee acknowledges that, in the event of any breach of sections 5, 6, 7,
8, 10 or11 of this Agreement by Employee, the remedy of Company at law would be
inadequate. Employee therefore agrees that Company shall be entitled to enforce
its rights under sections 5, 6, 7,8, 10 and 11 of this Agreement not only by an
action or actions for damages but also by an action or actions for injunctive
and other equitable relief without the necessity of providing irreparable harm
or actual damage.
(14) Successors, Binding Agreement
(1) This Agreement shall be binding upon and inure to the benefit of
the parties to this Agreement, their heirs, legal representatives,
successors and assigns.
(2) Employee may not delegate the performance of any duties or
responsibilities imposed nor assign any rights and benefits created by this
Agreement; provided, however, than any amounts which are due and owing to
Employee at the time of his/her death shall be paid in accordance with the
terms of this Agreement to Employee's devisee, legatee or other designee
or, if there is no such designee, to the Employee's estate.
(3) Employee represents that the execution and delivery of this
Agreement and the performance of his/her duties hereunder do not and shall
not conflict with the terms of any agreement or obligation to his prior
employer or to any other party.
(15) Notices
All notices required or permitted under this Agreement shall be in writing
and delivered by any method for providing proof of delivery. Any notice shall be
deemed to have been given on the date of receipt. Notices shall be delivered to
the parties of the following addresses until a different address has been
designated by notice to the other party:
1. If to Employee: 2. If to Company:
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Xxxxxxx X. Honour Phage Therapeutics, Inc
00000 00xx Xxxxx XX 00000 - 000xx Xxxxxx XX, Xxxxx 000
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
(16) Miscellaneous
No provisions of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in writing and signed
by Company and Employee. No waiver by either party to this Agreement, at any
time, of any breach by the other party to this Agreement, at any time, of any
breach by the other party to this Agreement of, or compliance with, any
provision of this Agreement to be performed by such other party, shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time. No agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter of this Agreement have
been made by either party or any other party which are not set forth expressly
in this Agreement. The validity, interpretation, construction and performance of
this Agreement shall be governed by the laws of the State of Washington
applicable when agreements are made and entirely performed in such State.
(17) Arbitration
Any controversy or claim arising out of or in connection with this
Agreement shall be settled by arbitration in accordance with the rules of the
American Arbitration Association then in effect in the State of Washington, and
judgement upon such award rendered by the arbitrator may be entered in any court
having jurisdiction in the State of Washington. Either party shall provide
written notice of any claim to the other party within one year of the date of
the alleged act or omission giving rise to the claim; otherwise, the claim shall
be void and waived, even though there may be statute of limitations that would
have provided more time to pursue the claim. The arbitration shall be held in
the State of Washington. The arbitration award shall include reasonable
attorney's fees and costs to the prevailing party.
(18) Validity
It is the intention of Employee and Company that the provisions of this
Agreement (including, without limitations, those of sections 5, 6, 7, 8 and 9 of
this Agreement shall be enforced to the fullest extent permissible under the
laws and public policies of each jurisdiction in which such enforcement is
sought. The validity or unenforceability of any provision or provisions of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect. If any tribunal
of competent jurisdiction shall decide that nay of the provisions of this
Agreement should be deemed illegal or unenforceable, then only those provisions
shall be deemed invalid (or shall be approximately modified to the maximum
extent permissible in keeping shall continue in full force and effect.
(19) Survival
The provisions of section 5, 6, 7, 8, 12, and 18 of this Agreement shall
survive the termination of this Agreement and shall be binding upon the
Employee's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
21. Headings
The headings of this Agreement are for convenience of reference only and
are not part of the substance of this Agreement.
22. Counterparts
This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original but al of which together will constitute one
and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
and year first above written.
Phage Therapeutics International, Inc
By:
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Name: Xxxxxx Xxxxx
Title: President, Board of Directors
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Xxxxxxx X. Honour (Employee)
