EMPLOYMENT AGREEMENT
This Employment Agreement is entered into as of December --,
1997, between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ("Employee") and Epitope, Inc., an Oregon
corporation (the "Company").
1. SERVICES.
1.1 EMPLOYMENT. Effective upon ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇'▇
resignation as Chief Financial Officer of the Company, the Company agrees to
employ Employee as Chief Financial Officer of the Company. Until such time,
Company agrees to employ employee as Vice President of Operations of the
Company. Employee hereby accepts such employment in accordance with the terms
and conditions of this Agreement. Employment shall continue until terminated
pursuant to the terms of this Agreement.
1.2 DUTIES. Employee shall have the position named in
Section 1.1 with such powers and duties appropriate to that office as may be
provided by the bylaws of the Company and as determined from time to time by the
President and Chief Executive Officer or the board of directors of the Company.
Subject to the provisions of Section 7.4, Employee's position and duties may be
changed from time to time during the term of this Agreement, and Employee's
place of work may be relocated at the sole discretion of the President and Chief
Executive Officer or the board of directors.
1.3 OUTSIDE ACTIVITIES. Employee shall obtain the
consent of the President and Chief Executive Officer or the board of directors
before he engages, either directly or indirectly, in any other professional or
business activities that may require an appreciable portion of Employee's time
or effort to the detriment of the Company's business.
1.4 DIRECTION OF SERVICES. Employee shall at all
times discharge his duties in consultation with and under the supervision and
direction of the President and Chief Executive Officer of the Company.
2. COMPENSATION AND EXPENSES.
2.1 SALARY. As compensation for services under this
Agreement, the Company shall pay to Employee a regular salary established by the
President and Chief Executive Officer or the board of directors. Such salary may
be adjusted from time to time in the discretion of the President and Chief
Executive Officer or the board of directors. Payment shall be made on a
bi-weekly basis, less all amounts required by law or authorized by Employee to
be withheld or deducted, at such times as shall be determined by the Company.
2.2 ADDITIONAL EMPLOYEE BENEFITS. To the extent
otherwise eligible, Employee shall also be entitled to receive or participate in
any additional benefits, including without limitation insurance programs, profit
sharing or pension plans, and medical reimbursement plans, which may from time
to time be made available by the Company to
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corporate officers. The Company may change or discontinue such benefits at any
time in its sole discretion.
2.3 EXPENSES. The Company shall reimburse Employee
for all reasonable and necessary expenses incurred in carrying out his duties
under this Agreement. Employee shall present to the Company from time to time an
itemized account of such expenses in such form as may be required by the
Company.
2.4 FEES. All compensation earned by Employee, other
than pursuant to this Agreement, as a result of services performed on behalf of
the Company or as a result of or arising out of any work done by Employee in any
way related to the scientific or business activities of the Company shall belong
to the Company. Employee shall pay or deliver such compensation to the Company
promptly upon receipt. For the purposes of this provision, "compensation" shall
include, but is not limited to, all professional and nonprofessional fees,
lecture fees, expert testimony fees, publishing fees, royalties, and any related
income, earnings, or other things of value; and "scientific or business
activities of the Company" shall include, but not be limited to, any project or
projects in which the Company is involved and any subject matter that is
directly or indirectly researched, tested, developed, promoted, or marketed by
the Company.
3. STOCK OPTIONS. The Company shall grant Employee an option
to purchase 30,000 shares of common stock of the Company at an exercise price
equal to the fair market value of the stock on the date of grant.
4. CONFIDENTIAL INFORMATION.
4.1 DEFINED. "Confidential Information" is all
nonpublic information relating to the Company or its business that is disclosed
to Employee, that Employee produces, or that Employee otherwise obtains during
employment. "Confidential Information" also includes information received from
third parties that the Company has agreed to treat as confidential. Examples of
Confidential Information are:
4.1.1 Marketing plans.
4.1.2 Customer lists.
4.1.3 Product design and manufacturing information.
4.1.4 Financial information.
4.2 ACCESS TO INFORMATION. Employee acknowledges that
in the course of his employment he will have access to Confidential Information,
that such information is a valuable asset of the Company, and that its
disclosure or unauthorized use will cause the Company substantial harm.
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4.3 OWNERSHIP. Employee acknowledges that all
Confidential Information shall continue to be the exclusive property of the
Company (or the third party that disclosed it to the Company), whether or not
prepared in whole or in part by Employee and whether or not disclosed to
Employee or entrusted to his custody in connection with his employment by the
Company.
4.4 NONDISCLOSURE AND NONUSE. Unless authorized or
instructed in writing by the Company, or required by legally constituted
authority, Employee will not, except as required in the course of the Company's
business, during or after his employment, disclose to others or use any
Confidential Information, unless and until, and then only to the extent that,
such items become available to the public through no fault of Employee.
4.5 RETURN OF CONFIDENTIAL INFORMATION. Upon request
by the Company during or after his employment, and without request upon
termination of employment pursuant to this Agreement, Employee will deliver
immediately to the Company all written or tangible materials containing
Confidential Information without retaining any excerpts or copies.
4.6 DURATION. The obligations set forth in this
Section 4 will continue beyond the term of employment of Employee by the Company
and for so long as Employee possesses Confidential Information.
5. MATERIALS PREPARED AND INVENTIONS MADE DURING EMPLOYMENT.
The Company shall be the exclusive owner of all materials, concepts, and
inventions Employee prepares, develops, or makes (whether alone or jointly with
others) within the scope of his employment, and of all related rights (including
copyrights, trademarks, and patents) and proceeds. Without limitation,
materials, concepts, and inventions that (a) relate to the Company's business or
actual or demonstrably anticipated research or development, or (b) result from
any work performed by Employee for the Company, shall be considered within the
scope of Employee's employment. Employee shall promptly disclose all such
materials, concepts, and inventions to the Company. Employee shall take all
action reasonably requested by the Company to vest ownership of such materials,
consents, and inventions in the Company and to permit the Company to obtain
copyright, trademark, patent, or similar protection in its name.
6. NONCOMPETITION. Employee confirms the noncompetition
covenant set forth in his Employment Agreement dated as of August 31, 1993 (the
"1993 Agreement"). The covenant is restated below to refer to the appropriate
sections of this Agreement.
6.1 COVENANT. Subject to the provisions of Section
6.3, Employee covenants that Employee will not, throughout the United States,
either individually or as a director, officer, partner, employee, agent,
representative, or consultant with any business, directly or indirectly during
the term of employment and for one year thereafter:
6.1.1 Engage or prepare to engage in any
business that competes with the Company;
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6.1.2 Induce or attempt to induce any person
who is an employee of the Company during the term of this covenant to leave the
employ of the Company; or
6.1.3 Solicit, divert, or accept orders for
products or services that are substantially competitive with the products or
services sold by the Company from any customer of the Company.
6.2 ENFORCEMENT. Employee acknowledges and agrees
that the time, scope, and other provisions of this Section 6 have been
specifically negotiated by sophisticated parties with the advice and
consultation of counsel and specifically hereby agrees that such time, scope,
and other provisions are reasonable under the circumstances. Employee further
agrees that if, at any time, despite the express agreement of the parties
hereto, a court of competent jurisdiction holds that any portion of this Section
6 is unenforceable for any reason, the maximum restrictions reasonable under the
circumstances, as determined by such court, will be substituted for any such
restrictions held unenforceable.
6.3 RELEASE FROM OBLIGATION. In the event that
Employee shall be entitled to extraordinary compensation pursuant to the
provisions of Section 7.5.2, Employee may elect to waive all rights to receive
such compensation from and after the date of such waiver in exchange for the
release of Employee from the obligations of Sections 6.1.1 and 6.1.3. Such
waiver shall be in writing, shall state that it is in consideration for the
release of Employee from the obligations of Sections 6.1.1 and 6.1.3 of this
Agreement, and shall be effective when delivered to Epitope. In the event of
such a waiver, the amounts payable pursuant to the provisions of Section 7.5.2
shall be prorated through the period commencing on the date of termination of
employment and ending on the date of delivery of the written notice of waiver to
Epitope. For example, if such waiver is delivered to Epitope six months after
the commencement for the 12-month-period set forth in Section 7.5.2, Employee
shall be paid one-half of the amounts otherwise payable pursuant to the
provisions of Section 7.5.2; in the event that Employee shall have received more
than such pro rata share of such compensation, it shall be a condition of
Employee's rights under this section that he shall have returned to Epitope any
amounts in excess of such pro rata share with the delivery of the waiver notice
to Epitope.
7. TERMINATION.
7.1 TERMINATION UPON DEATH. This Agreement shall
terminate immediately upon Employee's death.
7.2 TERMINATION BY EMPLOYEE. Employee may terminate
his employment under this Agreement by 90 days' written notice to the Company.
7.3 TERMINATION BY THE COMPANY FOR CAUSE. The Company
may terminate Employee's employment under this Agreement for cause at any time,
with or without advance notice. "Cause" includes, but is not limited to: (a) a
material breach of this Agreement by Employee and Employee's failure to promptly
cure such breach after receipt of written notice thereof from the President and
Chief Executive Officer or the board of directors of the
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Company; (b) Employee's willful refusal or failure, or Employee's inability, to
comply with any policies or standards of the Company or to perform any job
duties of Employee; (c) any act of fraud, dishonesty, or misconduct by Employee
in connection with Employee's employment with the Company; (d) the commission of
any act in direct competition with or materially detrimental to the best
interests of the Company; or (e) Employee's failure to otherwise comply with the
standards of behavior that an employer has the right to expect of an employee.
The Company reserves the right to determine the facts giving rise to cause for
termination and whether those facts constitute cause for termination.
7.4 TERMINATION BY THE COMPANY WITHOUT CAUSE. The
Company may terminate Employee's employment under this Agreement without cause
by written notice to Employee. Employee may (but shall not be required to) elect
to treat either of the following events as a termination without cause, provided
Employee acts within 60 days of the event:
7.4.1 A relocation by the Company of the
principal place where Employee's duties are to be performed to a place outside
of the Portland metropolitan area.
7.4.2 A "Change of Control" of the Company.
For purposes of this Agreement, a "Change of Control" shall mean a change of
control of a nature that would be required to be reported in response to Item
6(e) of Schedule 14A of Regulation 14A as in effect on the date hereof pursuant
to the Securities Exchange Act of ▇▇▇▇ (▇▇▇ "▇▇▇▇▇▇▇▇ ▇▇▇"); provided that,
without limitation, such a change of control shall be deemed to have occurred at
such time as (i) any Acquiring Person hereafter becomes the "beneficial owner"
(as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of 30
percent or more of the combined voting power of Voting Securities; (ii) during
any period of 12 consecutive calendar months, individuals who at the beginning
of such period constitute the board of directors cease for any reason to
constitute at least a majority thereof unless the election, or the nomination
for election, by the Company's shareholders of each new director was approved by
a vote of at least a majority of the directors then still in office who were
directors at the beginning of the period; (iii) there shall be consummated (a)
any consolidation or merger of the Company in which the Company is not the
continuing or surviving corporation or pursuant to which Voting Securities would
be converted into cash, securities, or other property, other than a merger of
the Company in which the holders of Voting Securities immediately prior to the
merger have the same, or substantially the same, proportionate ownership of
common stock of the surviving corporation immediately after the merger, or (b)
any sale, lease, exchange, or other transfer (in one transaction or a series of
related transactions) of all, or substantially all, of the assets of the
Company; or (iv) approval by the shareholders of the Company of any plan or
proposal for the liquidation or dissolution of the Company. For purposes of this
Agreement, "Acquiring Person" means any person or related persons which
constitute a "group" for purposes of Section 13(d) and Rule 13d-5 under the
Exchange Act, as such Section and Rule are in effect as of the date of this
Agreement; provided, however, that the term Acquiring Person shall not include:
(i) the Company or any of its subsidiaries; (ii) any employee benefit plan of
the Company or any of its subsidiaries; (iii) any entity holding voting capital
stock of the Company for or pursuant to the terms of any such employee benefit
plan; or (iv) any person or group solely because such person or group has voting
power with respect to capital stock of the Company arising from a
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revocable proxy or consent given in response to a public proxy or consent
solicitation made pursuant to the Exchange Act. For purposes of this Agreement,
"Voting Securities" means the Company's issued and outstanding securities
ordinarily having the right to vote at elections for the Company's board of
directors.
7.5 COMPENSATION UPON TERMINATION.
7.5.1 TERMINATION UNDER SECTION 7.1, 7.2, OR
7.3. In the event of a termination of Employee's employment under Section 7.1,
7.2, or 7.3, Employee's regular compensation pursuant to Section 2.1 shall be
prorated and payable until the date of termination.
7.5.2 TERMINATION UNDER SECTION 7.4. In the
event of a termination of Employee's employment by the Company without cause as
provided in Section 7.4, Employee shall continue to be paid the salary provided
in Section 2.1 for 12 months from the date of notice of such termination of
employment, in the manner and at the times at which regular compensation was
paid to Employee during the term of his employment under this Agreement, except
that if Employee elects to treat an event described in Sections 7.4.1 or 7.4.2
as a termination without cause but continues to work for the Company or any of
its subsidiaries, then any amounts Employee receives as compensation during the
12-month period shall be credited against the amounts payable to Employee under
this section. Unless Employee elects to continue working for the Company or any
of its subsidiaries, as a condition to receipt of the compensation described in
the preceding sentence Employee shall sign, deliver, and abide by a Separation
Agreement and Release, substantially in the form attached as Exhibit A to this
Agreement. The Company's obligation to pay the amounts stated in this section
shall terminate if Employee engages, either individually or as a director,
officer, partner, employee, agent, representative, or consultant with any
business, directly or indirectly in any of the activities listed in Section
6.1.1, 6.1.2, or 6.1.3 anywhere in the United States within one year after
termination of employment.
8. REMEDIES. The respective rights and duties of the Company
and Employee under this Agreement are in addition to, and not in lieu of, those
rights and duties afforded to and imposed upon them by law or at equity.
Employee acknowledges that breach of Sections 4 and 6 of this Agreement will
cause irreparable harm to the Company and agrees to the entry of a temporary
restraining order and permanent injunction by any court of competent
jurisdiction to prevent breach or further breach of this Agreement. Such remedy
shall be in addition to any other remedy available to the Company at law or in
equity.
9. SEVERABILITY OF PROVISIONS. The provisions of this
Agreement are severable, and if any provision hereof is held invalid or
unenforceable, it shall be enforced to the maximum extent permissible, and the
remaining provisions of the Agreement shall continue in full force and effect.
10. ATTORNEY FEES. In the event a suit or action is filed to
enforce Sections 4 or 6 of this Agreement, the prevailing party shall be
reimbursed by the other party for all costs
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and expenses incurred in connection with the suit or action, including without
limitation reasonable attorney fees at trial or on appeal.
11. NONWAIVER. Failure of the Company at any time to require
performance of any provision of this Agreement shall not limit the right of the
Company to enforce the provision. No provision of this Agreement or breach
thereof may be waived by either party except by a writing signed by that party.
A waiver of any breach of a provision of this Agreement shall be construed
narrowly and shall not be deemed to be a waiver of any succeeding breach of that
provision or a waiver of that provision itself or of any other provision.
12. ARBITRATION.
12.1 CLAIMS COVERED. All claims or controversies,
except for those excluded by Section 12.2 ("claims"), whether or not arising out
of Employee's employment (or its termination), that the Company may have against
Employee or that Employee may have against the Company or against its officers,
directors, employees or agents, in their capacity as such or otherwise, shall be
resolved as provided in this Section 12. Claims covered by this Section 12
include, but are not limited to, claims for wages or other compensation due;
claims for breach of any contract or covenant (express or implied); tort claims;
claims for discrimination (including, but not limited to, race, sex, sexual
orientation, religion, national origin, age, marital status, or disability);
claims for benefits (except where an employee benefit or pension plan specifies
that its claims procedure shall culminate in an arbitration procedure different
from this one), and claims for violation of any federal, state, or other
governmental law, statute, regulation, or ordinance, except as provided in
Section 12.2.
12.2 NON-COVERED CLAIMS. Claims arising out of
Sections 4 and 6 of this Agreement and workers' compensation or unemployment
compensation benefits are not covered by this Section 12. Non-covered claims
include but are not limited to claims by the Company for injunctive and/or other
equitable relief for unfair competition and/or the use and/or unauthorized
disclosure of trade secrets or confidential information, as to which Employee
understands and agrees that the Company may seek and obtain relief from a court
of competent jurisdiction.
12.3 REQUIRED NOTICE OF ALL CLAIMS AND STATUTE OF
LIMITATIONS. Company and Employee agree that the aggrieved party must give
written notice of any claim to the other party within one year of the date the
aggrieved party first has knowledge of the event giving rise to the claim;
otherwise the claim shall be void and deemed waived even if there is a federal
or state statute of limitations which would have given more time to pursue the
claim. The written notice shall identify and describe the nature of all claims
asserted and the facts upon which such claims are based.
12.4 HEARING OR MEDIATION. Prior to any arbitration
proceeding taking place pursuant to this section, Company or Employee may, at
its respective option, elect to submit the claim to non-binding mediation before
a mutually agreeable mediation tribunal or
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mediator, in which event both parties shall execute a suitable confidentiality
agreement and abide by the procedures specified by the mediation tribunal or
mediator.
12.5 ARBITRATION PROCEDURES. Any arbitration shall be
conducted in accordance with the then-current Model Employment Arbitration
Procedures of the American Arbitration Association ("AAA"), modified to
substitute for AAA actions, the United States Arbitration and Mediation Service
("USA&MS"), before an arbitrator who is licensed to practice law in the state of
Oregon (the "Arbitrator"). The arbitration shall take place in or near Portland,
Oregon.
12.5.1 SELECTION OF ARBITRATOR. The USA&MS
shall give each party a list of 11 arbitrators drawn from its panel of
labor-management dispute arbitrators. Each party may strike all names on the
list it deems unacceptable. If only one common name remains on the lists of all
parties, that individual shall be designated as the Arbitrator. If more than one
common name remains on the lists of all parties, the parties shall strike names
alternately until only one remains. The party who did not initiate the claim
shall strike first. If no common name remains on the lists of all parties, the
USA&MS shall furnish an additional list or lists until an Arbitrator is
selected.
12.5.2 APPLICABLE LAW. The Arbitrator shall
apply the substantive law (and the law of remedies, if applicable) specified in
this Agreement or federal law, or both, as applicable to the claim(s) asserted.
The Oregon Rules of Evidence shall apply. The Arbitrator, and not any federal,
state, or local court or agency, shall have exclusive authority to resolve any
dispute relating to the interpretation, applicability, enforceability or
formation of this Agreement, including but not limited to any claim that all or
any part of this Agreement is void or voidable. The arbitration shall be final
and binding upon the parties, except as provided in this Agreement.
12.5.3 AUTHORITY. The Arbitrator shall have
jurisdiction to hear and rule on pre-hearing disputes and is authorized to hold
pre-hearing conferences by telephone or in person as the Arbitrator deems
necessary. The Arbitrator shall have the authority to entertain a motion to
dismiss and/or a motion for summary judgment by any party and shall apply the
standards governing such motions under the Federal Rules of Civil Procedure. The
Arbitrator shall render an award and opinion in the form typically rendered in
labor arbitrations.
12.5.4 REPRESENTATION. Any party may be
represented by an attorney or other representative selected by the party.
12.5.5 DISCOVERY. Each party shall have the
right to take the deposition of one individual and any expert witness designated
by another party. Each party also shall have the right to make requests for
production of documents to any party. The subpoena right specified below shall
be applicable to discovery pursuant to this paragraph. Additional discovery may
be had only where the Arbitrator selected pursuant to this Agreement so orders,
upon a showing of substantial need. At least 30 days before the arbitration, the
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parties must exchange lists of witnesses, including any experts, and copies of
all exhibits intended to be used at the arbitration. Each party shall have the
right to subpoena witnesses and documents for the arbitration.
12.5.6 REPORTER. Either party, at its
expense, may arrange for and pay the cost of a court reporter to provide a
stenographic record of proceedings.
12.5.7 POST-HEARING BRIEFS. Either party,
upon request at the close of hearing, shall be given leave to file a
post-hearing brief. The time for filing such a brief shall be set by the
Arbitrator.
12.6 ENFORCEMENT. Either party may bring an action in
any court of competent jurisdiction to compel arbitration under this Agreement
and to enforce an arbitration award. Except as otherwise provided in this
Agreement, both the Company and Employee agree that neither shall initiate or
prosecute any lawsuit (other than for a non-covered claim) in any way related to
any claim covered by this Agreement. A party opposing enforcement of an award
may not do so in an enforcement proceeding, but must bring a separate action in
any court of competent jurisdiction to set aside the award, where the standard
of review will be the same as that applied by an appellate court reviewing a
decision of a trial court sitting without a jury.
12.7 ARBITRATION FEES AND COSTS. Company and Employee
shall equally share the fees and costs of the Arbitrator. Each party will
deposit funds or post other appropriate security for its share of the
Arbitrator's fee, in an amount and manner determined by the Arbitrator, 10 days
before the first day of hearing. Each party shall pay for its own costs and
attorneys' fees, if any, provided that the Arbitrator, in its sole discretion,
may award reasonable fees to the prevailing party in a proceeding.
13. GENERAL TERMS AND CONDITIONS. This Agreement constitutes
the entire understanding of the parties relating to the employment of Employee
by the Company, and, except as set forth in Section 6 with respect to the
noncompetition covenant in the 1993 Agreement, supersedes and replaces all
written and oral agreements heretofore made or existing by and between the
parties relating thereto. This Agreement shall be construed in accordance with
the laws of the state of Oregon, without regard to any conflicts of laws rules
thereof. This Agreement shall inure to the benefit of any successors or assigns
of the Company. All captions used herein are intended solely for convenience of
reference and shall in no way limit any of the provisions of this Agreement.
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The parties have executed this Employment Agreement as of the
date stated above.
EPITOPE, INC.
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:
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EXHIBIT A TO EMPLOYMENT AGREEMENT
SEPARATION AGREEMENT AND RELEASE
A. This Separation Agreement and Release ("Agreement") is made and
entered into as of this ----- day of --------------, -----, by and between
Company, Inc., an Oregon corporation ("Company"), and ----------------------
("--------------") in order to provide the terms and conditions of
--------------'s termination of employment, to fully and completely resolve any
and all issues that -------------- may have in connection with his employment
with Company or the termination of that employment, and to promote an amicable
long-term relationship between Company and --------------.
B. In consideration of the mutual promises and conditions contained
herein, the parties agree as follows:
1. SEPARATION. -------------- has been [is currently] employed
at Company as --------------. -------------- shall have no further job
responsibilities at Company after --------------, and his employment shall be
terminated effective as of such date.
2. PAYMENT TO --------------. Pursuant to the Employment
Agreement entered into between the parties, Company agrees to provide additional
compensation to -------------- in the amount of --------------- provided
-------------- executes and does not revoke this Agreement.
3. RELEASE OF CLAIMS. In return for the benefits conferred by
this Agreement (and described in the Employment Agreement), which --------------
acknowledges Company has no legal obligation to provide if -------------- does
not enter into this Agreement, --------------, on behalf of himself and his
heirs, executors, administrators, successors and assigns, hereby releases and
forever discharges Company and its past, present and future affiliates,
subsidiaries, predecessors, successors and assigns, and each of their past,
present and future shareholders, officers, directors, employees, agents and
insurers, from any and all claims, actions, causes of action, disputes,
liabilities or damages, of any kind, which may now exist or hereafter may be
discovered, specifically including, but not limited to, any and all claims,
disputes, actions, causes of action, liabilities or damages, arising from or
relating to --------------'s employment with Company, or the termination of such
employment, except for any claim for payment or performance pursuant to the
terms of this Agreement. This release includes, but is not limited to, any
claims that -------------- might have for reemployment or reinstatement or for
additional compensation or benefits and applies to claims that he might have
under either federal, state or local law dealing with employment, contract,
tort, wage and hour, or civil rights matters, including, but not limited to,
Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment
Act, the Americans with Disabilities Act, the Family and Medical Leave Act,
similar state laws, and any regulations under such laws. This release shall not
affect any accrued rights -------------- may have under any medical insurance,
workers' compensation or retirement plan because of his prior employment with
Company. -------------- ACKNOWLEDGES AND AGREES THAT THROUGH THIS RELEASE HE IS
GIVING UP ALL RIGHTS AND CLAIMS OF EVERY KIND AND NATURE WHATSOEVER, KNOWN OR
UNKNOWN, CONTINGENT OR LIQUIDATED, THAT HE MAY HAVE AGAINST Company AND THE
OTHER PERSONS NAMED ABOVE, EXCEPT FOR THE RIGHTS SPECIFICALLY EXCLUDED ABOVE.
4. CONFIDENTIALITY. -------------- agrees to keep this
Agreement and each of its terms, specifically including without limitation the
amount of the payment described in this Agreement, and the fact that he has
received payment, strictly confidential. -------------- may disclose the terms
of this Agreement only to his attorney or accountant, or as required by law.
--------------- understands that Company may be required to publicly disclose
the terms of this Agreement.
5. NON-DISPARAGEMENT. -------------- shall not make any
disparaging or derogatory remarks of any nature whatsoever about Company, its
officers, directors or employees, or its products, either publicly or privately,
unless required by law.
6. NON-ADMISSION OF LIABILITY. This Agreement shall not be
construed as an admission of liability or wrongdoing by Company. Neither this
Agreement nor any of its terms, provisions, or conditions constitute an
admission of liability or wrongdoing or may be offered or received in evidence
in any action or proceeding as evidence of an admission of liability or
wrongdoing.
7. EMPLOYMENT AGREEMENT. -------------- acknowledges and
reaffirms his obligations under Sections 4 and 6 of the Employment Agreement
executed by him in conjunction with his employment at Company. The terms of such
Employment Agreement are hereby incorporated herein and made a part of this
Agreement. -------------- agrees to strictly comply with such terms of the
Employment Agreement.
8. RETURN OF PROPERTY. -------------- agrees to and hereby
represents that he has returned to Company all of Company's property and all
materials containing confidential information of Company, that were in his
possession or under his control.
9. MISCELLANEOUS.
9.1 ENTIRE AGREEMENT. This document constitutes the
entire, final, and complete agreement and understanding of the parties with
respect to the subject matter hereof and supersedes and replaces all written and
oral agreements and understandings heretofore made or existing by and between
the parties or their representatives with respect thereto, other than the
Employment Agreement executed between the parties. There have been no
representations or commitments by Company to make any payment or perform any act
other than those expressly stated herein.
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9.2 WAIVER. No waiver of any provision of this
Agreement shall be deemed, or shall constitute a wavier of any other provision,
whether or not similar, nor shall any waiver constitute a continuing waiver. No
waiver shall be binding unless executed in writing by the parties making the
waiver.
9.3 BINDING EFFECT. All rights, remedies, and
liabilities herein given to or imposed upon the parties shall extend to, inure
to the benefit of and bind, as the circumstances may require, the parties and
their representative heirs, personal representatives, administrators, successors
and assigns.
9.4 AMENDMENT. No supplement, modification or
amendment of this Agreement shall be valid, unless the same is in writing and
signed by both parties.
9.5 RECOVERY OF ATTORNEY FEES BY PREVAILING PARTY. If
it becomes necessary to enforce this Agreement, or any part hereof, the
prevailing party shall be entitled to recover its reasonable attorney fees and
costs incurred therein, including all attorney fees and costs on appeal.
9.6 GOVERNING LAW. This Agreement and the rights of
the parties hereunder shall be governed, construed and enforced in accordance
with the laws of the state of Oregon, without regard to its conflict of law
principles. Any suit or action arising out of or in connection with this
Agreement, or any breach hereof, shall be brought and maintained in the Circuit
Court of the State of Oregon for the County of Multnomah. The parties hereby
irrevocably submit to the jurisdiction of such court for the purpose of such
suit or action and hereby expressly and irrevocably waive, to the fullest extent
permitted by law, any claim that any such suit or action has been brought in an
inconvenient forum.
9.7 -------------- GIVEN 21 DAYS TO CONSIDER
AGREEMENT. -------------- acknowledges that Company advised him in writing to
consult with an attorney before signing this Agreement and that he has had at
least 21 days to consider whether to execute this Agreement.
9.8 REVOCATION. -------------- may revoke this
Agreement by written notice delivered to the President and Chief Executive
Officer of the Company within seven days following the date he signed the
Agreement. If not revoked under the preceding sentence, this Agreement becomes
effective and enforceable after the seven-day period has expired.
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9.9 MISCELLANEOUS. -------------- acknowledges that
he has freely and voluntarily executed this Agreement, with a complete
understanding of its terms and present and future effects.
[NAME OF EMPLOYEE] EPITOPE, INC.
By:
Date: Title:
Date:
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