EXHIBIT 10.8.1
MEDI-JECT CORPORATION
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of December 21, 1999, by and between Medi-Ject
Corporation, a Minnesota corporation (the "Company"), and Franklin Pass, an
individual resident of Hennepin County in the State of Minnesota ("Executive").
WHEREAS, the Company wishes to employ Executive to render services for the
Company on the terms and conditions set forth in this Agreement, and Executive
wishes to be retained and employed by the Company on such terms and conditions.
NOW, THEREFORE, in consideration of the premises and the respective
undertakings of the Company and Executive set forth below, the Company and
Executive agree as follows:
1. Employment. The Company hereby employs Executive, and Executive accepts
such employment and agrees to perform services for the Company, for the
period and upon the other terms and conditions set forth in this Agreement.
2. Term. Unless terminated at an earlier date in accordance with Section 9 of
this Agreement, the term of Executive's employment hereunder shall be for a
period commencing on the date of this Agreement and continuing as set forth
in the Term and Compensation Addendum applicable to each year.
3. Position and Duties.
3.01 Service with Company. During the term of this Agreement, Executive
agrees to perform such reasonable employment duties as the Board of
Directors of the Company shall assign to him from time to time. As of
the date of this Agreement, Executive has been elected to serve as
Chairman and Chief Executive Officer.
3.02 Performance of Duties. Executive agrees to serve the Company
faithfully and to the best of his ability and to devote his full time,
attention and efforts to the business and affairs of the Company
during the term of this Agreement. Executive hereby confirms that,
other than as set forth herein, he is under no contractual commitments
inconsistent with his obligations set forth in this Agreement, and
that for the term of this Agreement, he will not render or perform
services for any other corporation, firm, entity or person that are
inconsistent with the provisions of this Agreement.
4. Compensation.
4.01 Salary. As compensation in full for services to be rendered by the
Executive under this Agreement and as amended annually by the Term and
Compensation Addendum, the Company shall pay to Executive a base
annual salary set at $210,000 as of
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January 1, 1997, which salary shall be paid in accordance with the
Company's normal payroll procedures and policies. The compensation
payable to Executive during each year subsequent to 1997 during the
term of this Agreement shall be mutually agreed upon by the Company
and Executive prior to the commencement of each such year but shall
not be less than $210,000 multiplied by a fraction, the denominator of
which is the consumer price index (CPI) in effect on January 1, 1997,
and the numeration of which is the CPI of each year. As used herein,
CPI refers to the Consumer Price Index, All Items, U.S. Cities Average
(base year 1982-1984) published by the Bureau of Labor Statistics.
4.02 Participation in Benefit Plans. Executive shall also be entitled to
participate in all employee benefit plans or programs (including
vacation time) of the Company to the extent that his position, title,
tenure, salary, age, health and other qualifications make him eligible
to participate. The Company does not guarantee the adoption or
continuance of any particular employee benefit plan or program during
the term of this Agreement, and Executive's participation in any such
plan or program shall be subject to the provisions, rules and
regulations applicable thereto. In addition to the normal employee
benefit programs of the Company, Executive shall be eligible for
reimbursement or direct payment of expenses incurred for additional
personal life insurance policies representing an aggregate policy
amount of $2,000,000 and additional disability insurance premiums not
to exceed $10,000 in each calendar year.
4.03 Expenses. The Company will pay or reimburse Executive for all
reasonable and necessary out-of-pocket expenses incurred by him in the
performance of his duties under this Agreement, subject to the
presentment of appropriate vouchers in accordance with the Company's
normal policies for expense verification.
5. Confidential Information. Except as permitted or directed by the Company's
Board of Directors, during the term of this Agreement and for a period of
five years thereafter, Executive shall not divulge, furnish or make
accessible to anyone or use in any way (other than in the ordinary course
of the business of the Company) any confidential or secret knowledge or
information of the Company which Executive has acquired or become
acquainted with or will acquire or become acquainted with prior to the
termination of the period of his employment by the Company (including
employment by the Company or any affiliated companies prior to the date of
this Agreement), whether developed by himself or by others, concerning any
trade secrets, confidential or secret designs, processes, formulae, plans,
devices or material (whether or not patented or patentable) directly or
indirectly useful in any aspect of the business of the Company, any
customer or supplier lists of the Company, any confidential or secret
development or research work of the Company, or any other confidential
information or secret aspects of the business of the Company. Executive
acknowledges that the above-described knowledge or information constitutes
a unique and valuable asset of the Company and represents a substantial
investment of time and expense by the Company and its predecessors, and
that any disclosure or other use of such knowledge or information other
than for the sole benefit of the Company would be wrongful and would
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Employment Agreement
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cause irreparable harm to the Company. Both during and after the term of
this Agreement, Executive will refrain from any acts or omissions that
would reduce the value of such knowledge or information to the Company. The
foregoing obligations of confidentiality, however, shall not apply to any
knowledge or information which is now published or which subsequently
becomes generally publicly known in the form in which it was obtained from
the Company, other than as a direct or indirect result of the breach of
this Agreement by Executive.
6. Ventures. During the term of this Agreement, it is anticipated that
Executive will be engaged in or associated with the planning and
implementing of projects, programs and ventures involving the Company and
third parties, and Executive hereby expressly acknowledges and agrees that
all rights in such projects, programs and ventures shall belong to the
Company. Except as formally approved by the Company's Board of Directors,
Executive shall not be entitled to any interest in such projects, programs
and ventures or to any commission, finder's fee or other compensation in
connection therewith, other than the salary and compensation to be paid to
Executive as provided in this Agreement, described in Section 4.01 of this
Agreement.
7. Noncompetition and Nonsolicitation Covenants.
7.01 Agreement Not to Compete. Executive agrees that, during the term of
his employment by the Company he shall not, directly or indirectly,
engage in competition with the Company in any manner or capacity
(e.g., as an advisor, principal, agent, partner, officer, director,
stockholder, employee, member of any association, or otherwise) in any
phase of the business that the Company is conducting during the term
of this Agreement, including the design, development, manufacture,
distribution, marketing, leasing or selling of accessories, devices,
or systems related to the products or services being sold by the
Company.
7.02 Geographic Extent of Covenant. The obligations of Executive under
Section 7.01 shall apply to any geographic area in which the Company:
(a) has engaged in business during the term of this Agreement through
production, promotional sales or marketing activity, or
otherwise; or
(b) has otherwise established its goodwill, business reputation, or
any customer or supplier relations.
7.03 Limitation on Covenant. Ownership by Executive, as a passive
investment, of less than one percent (1%) of the outstanding shares of
capital stock of any corporation listed on a national securities
exchange or publicly traded in the over-the-counter market shall not
constitute a breach of this Section 7.
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7.04 Nonsolicitation and Noninterference. During the term of this Agreement
and for a period of two years thereafter, Executive shall not:
(a) induce or attempt to induce any employee of the Company to leave
the employ of the Company, or in any way interfere adversely with
the relationship between any such employee and the Company;
(b) induce or attempt to induce any employee of the Company to work
for, render services to, provide advise to or supply confidential
business information or trade secrets of the Company to any third
person, firm or corporation; or
(c) induce or attempt to induce any customer, supplier, licensee,
licensor or other business relation of the Company to cease doing
business with the Company, or in any way interfere with the
relationship between any such customer, supplier, licensee,
licensor or other business relation and the Company.
7.05 Indirect Competition and Interference. Executive further agrees that,
during the term of this Agreement and, solely with respect to Section
7.04, the period covered by Section 7.04, he will not, directly or
indirectly, assist or encourage any other person in carrying out,
directly or indirectly, any activity that would be prohibited by the
above provisions of this Section 7 if such activity were carried out
by Executive, either directly or indirectly; and, in particular,
Executive agrees that he will not, directly or indirectly, induce any
employee of the Company to carry out, directly or indirectly, any such
activity.
8. Patent and Related Matters.
8.01 Disclosure and Assignment. Executive will promptly disclose in writing
to the Company complete information concerning each and every
invention, discovery, improvement, device, design, apparatus,
practice, process, method or product, whether patentable or not, made,
developed, perfected, devised, conceived or first reduced to practice
by Executive, either solely or in collaboration with others, during
the term of this Agreement, or within six months thereafter, whether
or not during regular working hours, relating either directly or
indirectly to the business, products, practices, or techniques of the
Company (hereinafter referred to as "Developments"). Executive, to the
extent that he has the legal right to do so, hereby acknowledges that
any and all of said Developments are the property of the Company and
hereby assigns and agrees to assign to the Company any and all of
Executive's right, title and interest in and to any and all of such
Developments. Without limiting the foregoing, any and all original
works of authorship which are created by Executive (solely or jointly
with others) within the scope of Executive's employment and which are
protectable by copyright law shall be deemed "works made for hire," as
that term is defined in the U.S. Copyright Act (17 U.S.C. Section
101).
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8.02 Future Developments. As to any future Developments made by Executive
that relate to the business, products or practices of the Company and
that are first conceived or reduced to practice during the term of
this Agreement, or within six months thereafter, but that are claimed
for any reason to belong to an entity or person other than the
Company, Executive will promptly disclose the same in writing to the
Company and shall not disclose the same to others if the Company,
within twenty (20) days thereafter, shall claim ownership of such
Developments under the terms of this Agreement. If the Company makes
such claim, Executive agrees that, insofar as the rights (if any) of
Executive are involved, it will be settled by arbitration in
accordance with the rules of the American Arbitration Association. The
locale of the arbitration shall be Minneapolis, Minnesota (or other
locale convenient to the Company's principal executive offices). If
the Company makes no such claim, Executive hereby acknowledges that
the Company has made no promise to receive and hold in confidence any
such information disclosed by Executive.
8.03 Limitation on Sections 8.01 and 8.02. The provisions of Sections 8.01
and 8.02 shall not apply to any Development meeting the following
conditions:
(a) such Development was developed entirely on Executive's own time;
(b) such Development was made without the use of any Company
equipment, supplies, facility or trade secret information;
(c) such Development does not relate:
(i) directly to the business of the Company; or
(ii) to the Company's actual or demonstrable anticipated
research;
(d) such Development does not result from any work performed by
Executive for the Company.
8.04 Assistance of Executive. Upon request and without further compensation
therefor, but at no expense to Executive, and whether during the term
of this Agreement or thereafter, Executive will do all lawful acts,
including, but not limited to, the execution of papers and lawful
oaths and the giving of testimony, that in the opinion of the Company,
its successors and assigns may be necessary or desirable in obtaining,
sustaining, reissuing, extending and enforcing United States and
foreign Letters Patent, including, but not limited to, design patents,
on any and all of such Developments, and for perfecting, affirming and
recording the Company's complete ownership and title thereto, and to
cooperate otherwise in all proceedings and matters relating thereto.
8.05 Records. Executive will keep complete, accurate and authentic
accounts, notes, data and records of all Developments in the manner
and form requested by the Company.
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Such accounts, notes, data and records shall be the property of the
Company, and, upon its request, Executive will promptly surrender the
same to it or, if not previously surrendered upon its request or
otherwise, Executive will surrender the same, and all copies thereof,
to the Company upon the conclusion of his employment.
8.06 Obligations, Restrictions and Limitations. Executive understands that
the Company may enter into agreements or arrangements with agencies of
the United States Government, and that the Company may be subject to
laws and regulations which impose obligations, restrictions and
limitations on it with respect to inventions and patents that may be
acquired by it or that may be conceived or developed by employees,
consultants or other agents rendering services to it. Executive agrees
that he shall be bound by all such obligations, restrictions and
limitations applicable to any such invention conceived or developed by
him during the term of this Agreement and shall take any and all
further action that may be required to discharge such obligations and
to comply with such restrictions and limitations.
9. Termination.
9.01 Grounds for Termination. This Agreement shall terminate prior to the
expiration of the initial term set forth in Section 2 or any extension
thereof in the event that at any time during the initial term or any
extension thereof:
(a) Executive shall die;
(b) the Board of Directors of the Company shall determine that:
(i) Executive has become disabled;
(ii) Executive had breached this Agreement in any material
respect, which breach is not cured by Executive or is not
capable of being cured by Executive within thirty (30) days
after written notice of such breach is delivered to
Executive; or
(iii) Executive has engaged in willful and material misconduct,
including willful and material failure to perform his duties
as an officer or employee of the Company; or
(c) Executive is terminated by the Company (which may be with or
without cause), following not less than ninety days prior written
notice of such termination.
Notwithstanding any termination of this Agreement, Executive, in
consideration of his employment hereunder to the date of such
termination, shall remain bound by the provisions of this Agreement
that specifically relate to periods, activities or obligations upon or
subsequent to the termination of Executive's employment.
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9.02 "Disability" Defined. The Board of Directors may determine that
Executive has become disabled, for the purpose of this Agreement, in
the event that Executive shall fail, because of illness or incapacity,
to render services of the character contemplated by this Agreement
over a period of ninety (90) days during any one hundred and eighty
(180) day period. The existence or nonexistence of grounds for
termination because of disability shall be made in good faith by the
Board of Directors after notice in writing given to Executive at least
thirty (30) days prior to such determination. During such thirty (30)
day period, Executive shall be permitted to make a presentation to the
Board of Directors for its consideration.
9.03 Surrender of Records and Property. Upon termination of his employment
with the Company, Executive shall deliver promptly to the Company all
records, manuals, books, blank forms, documents, letters, memoranda,
notes, notebooks, reports, data, tables, calculations or copies
thereof, which are the property of the Company or which relate in any
way to the business, products, practices or techniques of the Company,
and all other property, trade secrets and confidential information of
the Company, including, but not limited to, all documents which in
whole or in part contain any trade secrets or confidential information
of the Company, which in any of these cases are in his possession or
under his control.
10. Miscellaneous.
10.01 Governing Law. This Agreement is made under and shall be governed by
and construed in accordance with the laws of the State of Minnesota.
10.02 Prior Agreements. This Agreement contains the entire Agreement of the
parties relating to the subject matter hereof and supersedes all prior
Agreements and understandings with respect to such subject matter, and
the parties hereto have made no Agreements, representations or
warranties relating to the subject matter of this Agreement which are
not set forth herein.
10.03 Withholding Taxes. The Company may withhold from any benefits payable
under this Agreement all federal, state, city or other taxes as shall
be required pursuant to any law or governmental regulation or ruling.
10.04 Amendments. No amendment or modification of this Agreement shall be
deemed effective unless made in writing and signed by the parties
hereto.
10.05 No Waiver. No term or condition of this Agreement shall be deemed to
have been waived, nor shall there be any estoppel to enforce any
provisions of this Agreement, except by a statement in writing signed
by the party against whom enforcement of the waiver or estoppel is
sought. Any written waiver shall not be deemed a continuing waiver
unless specifically stated, shall operate only as to the specific term
or
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condition waived and shall not constitute a waiver of such term or
condition for the future or as to any act other than that specifically
waived.
10.06 Severability. To the extent any provision of this Agreement shall be
invalid or unenforceable, it shall be considered deleted here from and
the remainder of such provision and of this Agreement shall be
unaffected and shall continue in full force and effect. In furtherance
and not in limitation of the foregoing, should the duration or
geographical extent of, or business activities covered by, any
provision of this Agreement be in excess of that which is valid and
enforceable under applicable law, then such provision shall be
construed to cover only that duration, extent or activities which may
validly and enforceably be covered. Executive acknowledges the
uncertainty of the law in this respect and expressly stipulates that
this Agreement be given the construction which renders its provisions
valid and enforceable to the maximum extent (not exceeding its express
terms) possible under applicable law.
10.07 Assignment. This Agreement shall not be assignable, in whole or in
part, by either party without the written consent of the other party,
except that the Company may, without the consent of Executive, assign
its rights and obligations under this Agreement to any corporation,
firm or other business entity with or into which the Company may merge
or consolidate, or to which the Company may sell or transfer all or
substantially all of its assets, or of which 50% or more of the equity
investment and of the voting control is owned, directly or indirectly,
by, or is under common ownership with, the Company. After any such
assignment by the Company, the Company shall be discharged from all
further liability hereunder and such assignee shall thereafter be
deemed to be the Company for the purposes of all provisions of this
Agreement including this Section 10.
10.08 Injunctive Relief. Executive agrees that it would be difficult to
compensate the Company fully for damages for any violation of the
provisions of this Agreement, including without limitation the
provisions of Sections 5, 7, 8 and 9.03. Accordingly, Executive
specifically agrees that the Company shall be entitled to temporary
and permanent injunctive relief to enforce the provisions of this
Agreement and that such relief may be granted without the necessity of
proving actual damages. This provision with respect to injunctive
relief shall not, however, diminish the right of the Company to claim
and recover damages in addition to injunctive relief.
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IN WITNESS WHEREOF, Executive and the Company have executed this Agreement as of
the date set forth in the first paragraph.
MEDI-JECT CORPORATION EXECUTIVE
By:
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Franklin Pass
Its:
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TERM AND COMPENSATION ADDENDUM FOR 2000
TO AMEND EMPLOYMENT AGREEMENT DATED DECEMBER 21, 1999,
AS OF DECEMBER 21, 1999
THIS AGREEMENT, effective as of December 21, 1999, by and between Medi-Ject
Corporation, a Minnesota corporation (the "Company") and Franklin Pass, an
individual resident of the State of Minnesota (the "Executive"),
WHEREAS, the Company and the Executive are parties to an Employment Agreement
dated December 21, 1999, (the "Agreement"), and
PURSUANT to the recommendation of the Compensation Committee of the Board of
Directors on December 21, 1999, as approved by the full Board of Directors on
the same date, and
WHEREAS, the Company and the Executive each wish to agree to the following:
1. The Agreement term shall begin on December 21, 1999, and extend
through and include December 31, 2002.
2. Base compensation for year 2000 shall be $228,300.
3. A $25,000 cash bonus upon signing a development and distribution
agreement and/or product and technology rights agreement with either
Disetronic or Pharmacia & Upjohn.
All other terms of the Agreement and all amendments applicable thereto are to
remain in full force and effect.
AGREED:
MEDI-JECT CORPORATION: EXECUTIVE:
By:
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Franklin Pass
Its:
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Dated: Dated:
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