Executive Employment Agreement
This
Executive Employment Agreement (the “Agreement”)
is
effective as of August 30, 2008, by and between Micromet,
Inc.
(hereinafter the “Company”)
and
Xxxxxxx Xxxxxxxx (hereinafter “Executive”).
Whereas,
the
Company desires to employ Executive to provide personal services to the Company,
and wishes to provide Executive with certain compensation and benefits in return
for his services; and
Whereas,
Executive wishes to be employed by the Company and provide personal services
to
the Company in return for certain compensation and benefits;
Now,
therefore,
in
consideration of the mutual promises and covenants contained herein, the parties
hereto agree as follows:
1.
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Employment
by the Company
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1.1 Position.
Subject
to terms set forth herein, the Company agrees to employ Executive in the
position of Senior Vice President and Chief Financial Officer, and Executive
hereby accepts such employment. During his employment with the Company,
Executive will devote his best efforts and substantially all of his time and
attention to the business of the Company, except as provided in Section 4 and
Exhibit E below and for vacation periods and reasonable periods of illness
or
other incapacities in accordance with the Company’s general employment
policies.
1.2 Duties.
Executive will serve in an executive capacity performing such duties as are
normally associated with his then current position and such duties as are
assigned to him from time to time, subject to the oversight and direction of
the
Chief Executive Officer and the Company’s Board of Directors (the “Board”) or a
Committee thereof. Upon termination of this Agreement pursuant to Section
6,
Executive agrees to resign from all functions which he exercised or assumed
on
the basis of or in connection with Executive’s employment by the Company,
including as a director or officer of the Company or its subsidiaries, subject
to any applicable legal requirements regarding such resignation.
1.3 Location. Executive’s
primary office location will be at the Company’s US corporate offices, currently
in Bethesda, MD.
The
Company reserves the right to reasonably require Executive to perform his duties
at places other than at his primary office location from time to time, and
to
require reasonable business travel.
In
order to facilitate Executive’s relocation from his current domicile to the
Bethesda area, the Company will make available to Executive the relocation
benefits set forth in Exhibit
D.
1.4 Term. The
term
of this
Agreement will commence on August 30, 2008 (the “Start
Date”),
and
will continue until terminated
by
Executive or the Company in accordance with Section 6.
1.5 Policies
and Procedures.
The
employment relationship between the parties will also be subject to the
Company’s personnel policies and procedures as they may be interpreted, adopted,
revised or deleted from time to time in the Company’s sole discretion. If the
terms of this Agreement differ from or are in conflict with the Company’s
personnel policies or procedures, this Agreement will control.
2.
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Compensation
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2.1 Base
Salary. For
services rendered hereunder by Executive pursuant to this Agreement, Executive
will receive an annualized base salary of three hundred thousand US dollars
(US$300,000) as may be increased from time to time by the Compensation Committee
of the Board at its discretion (the “Base
Salary”),
payable in accordance with the Company’s regular payroll schedule (but not less
frequently than monthly), less any payroll withholding and deductions in
accordance with applicable law and the Company’s general employment policies or
practices.
2.2 Bonus.
Executive will participate in the Company’s Management Incentive Compensation
Plan (the “MICP”)
adopted by the Company from time to time or in such other bonus plan as the
Board may approve for the senior executive officers of the Company. Except
as
otherwise provided in this Agreement, Executive’s participation in and benefits
under any such plan will be on the terms and subject to the conditions specified
in the governing document of the particular plan.
2.3 Standard
Company Benefits.
(a) The
Executive will be eligible to participate on the same basis as similarly
situated employees in the Company’s benefit plans in effect from time to time
during his employment. All matters of eligibility for coverage or benefits
under
any benefit plan will be determined in accordance with the provisions of such
plan. The Company reserves the right to change, alter, or terminate any benefit
plan in its sole discretion.
Until
such time as Executive is eligible to participate in the Company’s health
insurance plan, the Company will reimburse Executive his payments for a
continuation of his current health insurance pursuant to COBRA or any applicable
state continuation
coverage
laws.
(b) Executive
is entitled to annual paid time off (“PTO”) in accordance with the Company’s
standard policies and as otherwise provided for senior executive officers,
but
in no event less than twenty (20) working days. Working days are all calendar
days with the exception of Saturdays, Sundays and the designated Company
holidays. Executive will coordinate the periods of PTO reasonably in advance
with the other executive officers of the Company, and the timing of such PTO
will be subject to the prior approval of the Chief Executive
Officer.
2.4 Insurance. The
Company will reimburse Executive for the cost of his AD&D and life insurance
in place as of the date of this Agreement, or corresponding insurance coverage
by different insurers at comparable or lesser cost.
In
addition, the
Company will have the right to take out life, health, accident, “key-man” or
other insurance covering Executive, in the name of the Company and at the
Company’s expense and for the Company’s benefit, in any amount deemed
appropriate by the Company. Executive will assist the Company in obtaining
such
insurance, including, without limitation, submitting to any required
examinations and providing information and data required by insurance
companies.
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2.5 Business
Expenses.
The
Company will reimburse Executive for reasonable Company-related travel,
entertainment, professional licensing, continuing education and other expenses
reasonably incurred by Executive on behalf of the Company pursuant to the
Company’s expense reimbursement policy for its employees.
2.6 Equity
Compensation.
(a) Initial
Stock Option. Subject
to approval by the Board of Directors of the Company, on the first day of the
month following the Start Date (the “Grant
Date”),
Executive will be granted an option to purchase 300,000 shares of Common Stock
of the Company (the “Initial
Stock Option”).
The
Initial Stock Option will have an exercise price equal to the fair market value
of the Company’s Common Stock on the date preceding the Grant Date. The Initial
Stock Option will be granted as an incentive stock option to the maximum extent
permitted by law, and otherwise will be a non-qualified stock option. The
Initial Stock Option will be subject to the Micromet, Inc. Amended and Restated
2003 Equity Incentive Award Plan (the “Plan”)
and
the Company’s standard form of stock option agreement, which Executive will be
required to execute as a condition to this grant. The
Initial Stock Option will vest over a four-year period, with 25% of the shares
subject to the Initial Stock Option vesting on the 12 month anniversary date
of
the date of this Agreement, and 1/48 of the shares subject to the Initial Stock
Option vesting on a monthly basis thereafter.
(b) Participation
in Future Grants. In
addition to the Initial Stock Option, Executive will be eligible to participate
in any equity or other employee benefit plan that is generally available to
senior executive officers of the Company. Except as otherwise provided in this
Agreement, Executive’s participation in and benefits under any such plans will
be on the terms and subject to the conditions specified in the governing
document of the particular plan.
(c) Acceleration
of Vesting.
The
provisions concerning vesting pursuant to clauses (i), (ii) and (iii) below
will
be cumulative, and are hereby deemed to be a part of all stock options,
including the Initial Stock Option, restricted stock and such other awards
granted pursuant to the Company’s stock option and equity incentive award plans
or agreements and any shares of stock issued upon exercise thereof, (each a
“Stock
Award”)
and to
supersede any less favorable provision in any agreement or plan regarding such
Stock Award.
(i) If
Executive’s employment is terminated by the Company without Cause, by Executive
for Good Reason, or as a result of Executive’s death or Disability (all as
defined in Section 6 below), Executive’s
outstanding unvested Stock Awards that would have vested over the twelve (12)
month period following the date of termination had Executive remained
continuously employed by the Company during such period, will be automatically
vested and exercisable on the date of termination. For purposes of this Section
6.2(c), the definition of Cause, Good Reason and Disability in Section 6 of
this
Agreement supersedes any such definitions in the Plan.
(ii) On
the
effective date of a Change of Control (as defined in the Plan), fifty percent
(50%) of Executive’s outstanding unvested Stock Awards will be automatically
vested and exercisable.
The
portion of any outstanding Stock Award that remains unvested after the
application of the accelerated vesting under this Section will continue to
vest
on the same schedule, but the number of shares vesting on each installment
will
be reduced on a pro rata basis to take into account the accelerated vesting
herein.
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(iii) If
this
Agreement is terminated by the Company without Cause or by Executive for Good
Reason within six (6) months prior to or twenty-four (24) months following
a
Change of Control, all of Executive’s outstanding unvested Stock Awards will be
automatically vested and exercisable on the later of the date of termination
or
the Change of Control. Such Stock Awards will be fully vested and exercisable
at
the exercise price of the previously terminated Stock Awards, provided that
Executive agrees to exercise such Stock Awards within the then current calendar
year. If any such unvested Stock Awards have been terminated, the Company will
make a cash payment to the Executive equal to the economic value of the
terminated Stock Award to Executive at the time of the Change of Control
(calculated for stock options as the difference between the exercise price
of
the option and the fair market value of the shares underlying the option at
the
time of the Change of Control, and for stock awards as the fair market value
of
the shares at the time of the Change of Control).
3.
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D&O
Insurance
and Indemnification
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3.1 D&O
Insurance. The
Company
will
obtain and maintain at the Company’s expense during the term of this Agreement
and for six (6) years thereafter liability insurance for the directors and
officers of the Company (D&O insurance) in the amount of at least US$ 10
million for any acts or omissions of Executive covered by the applicable
insurance policy.
3.2 Indemnification.
The
Company and Executive will enter into a separate indemnification agreement,
and
the Company will indemnify Executive in accordance with the terms of such
agreement.
4.
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Outside
Activities During
Employment
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4.1 Exclusive
Employment. Except
pursuant to a consulting agreement with Vector Fund Management, which is subject
to the approval of the Board, Executive will not to engage in any business
activity which, in the reasonable judgment of the Chief Executive Officer,
is
likely to interfere with Executive’s ability to discharge his duties and
responsibilities to the Company. Executive may engage in civic and
not-for-profit activities, and participate in industry associations so long
as
such activities do not materially interfere with the performance of his duties
hereunder. Executive agrees that he will not join any boards, other than
community and civic boards and boards of industry associations which do not
interfere with his duties to the Company, without the prior approval of
the Board.
4.2 No
Adverse Interests.
Except
as permitted by Section 4.3, Executive agrees not to acquire, assume or
participate in, directly or indirectly, any position, investment or interest
known by him to be adverse or antagonistic to the Company, its business or
prospects, financial or otherwise,
or
engage in any business that creates a conflict of interest with his duties
of
loyalty to the Company.
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4.3 Non-Competition
during Term of Agreement.
During
the term of this Agreement, except on behalf of the Company or as expressly
authorized by the Board, Executive will not directly or indirectly, whether
as
an officer, director, stockholder, partner, proprietor, associate,
representative, consultant, or in any capacity whatsoever engage in, become
financially interested in, be employed by or have any business connection with
any other person, corporation, firm, partnership or other entity whatsoever
which were known by him to compete directly with the Company, throughout the
world, in any line of business engaged in (or planned to be engaged in) by
the
Company; provided,
however,
that
anything above to the contrary notwithstanding, he or his immediate family
may
own, as a passive investor, securities of any competitor corporation, so long
as
his direct holdings in any one such corporation will not in the aggregate
constitute more than one percent (1%) of the voting stock of such
corporation.
5.
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Proprietary
Information Obligations
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As
a
condition of employment, Executive agrees to execute and abide by the
Proprietary Information and Inventions Agreement attached hereto as Exhibit A,
which
may be amended by the parties from time to time without regard to this
Agreement. The Proprietary Information and Inventions Agreement contains
provisions that are intended by the parties to survive and that do survive
termination or expiration of this Agreement.
6.
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Termination
Of Employment
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The
parties acknowledge that Executive’s employment with the Company is terminable
at will. The provisions of in this Section governing the amount of compensation,
if any, to be provided to Executive upon termination of employment do not alter
this at will status.
6.1 Termination
by the Company for Cause
(a) The
Company may terminate this Agreement at any time for Cause by written notice
to
Executive
effective upon receipt. “Cause”
means
that the Board of Directors has determined in good
faith
that
Executive has engaged in any of the following: (i) a material breach of this
Agreement or any other written agreement between Executive and the Company;
(ii)
gross negligence or gross misconduct in the performance of his duties; (iii)
the
commission of any act or omission constituting dishonesty or fraud that is
injurious to the Company or any successor or affiliate thereof; (iv) any
conviction of, or plea of “guilty’ or “no contest” to, a felony; (v) conduct by
Executive which demonstrates gross unfitness to serve; (vi) failure to attempt
in good faith to implement a clear, reasonable and legal directive of the
Company’s Chief Executive Officer, the Board or any Board committee; (vii)
persistent and
severe
unsatisfactory performance of job duties; or (viii) breach of a fiduciary
duty.
(b) If
the
Company terminates this Agreement for Cause, the Company will pay Executive
(i)
the Base Salary due Executive through the date of termination, and (ii) for
any
accrued PTO not taken at the time of termination. Executive will not be entitled
to receive any Severance Benefits (as defined in Section 6.2 below), unpaid
bonuses or other compensation, except as set forth in Section 6.1(c) below.
(c) If
the
Company terminates this Agreement for Cause solely on the basis of Section
6.1(a)(vii) above, provided that Executive executes and does not revoke a
Release as provided in Section 7 and complies with Section 6.7(b), the Company
will pay Executive, in lieu of any other severance benefits, an amount equal
to
three (3) months of Executive’s Base Salary on the date of termination. The
payment due pursuant to this Section 6.1(c) will be payable as a lump sum
payment no later than the first business day following the date on which
Executive’s right to revoke any waiver and release of legal claims has expired.
In addition, Executive’s outstanding unvested Stock Awards that would have
vested over the three (3) month period following the date of termination had
Executive remained continuously employed by the Company during such period,
will
be automatically vested and exercisable on the date of termination.
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6.2 Termination
by the Company without Cause.
(a) The
Company may terminate this Agreement at any time without Cause by written notice
to Executive effective upon receipt or on a later termination date agreed with
Executive.
(b) If
the
Company terminates Executive’s employment without Cause, the Company will pay
Executive (i) the Base Salary due Executive through the date of termination,
(ii) for any accrued PTO not taken at the time of termination, and (iii) any
other amounts to which Executive is entitled at the time of termination under
any bonus or compensation plan or practice of the Company; provided,
however, that
any
bonus payments under the MICP will be governed by Section 6.2(c)(ii) below
and
not this Section.
(c) In
addition, and provided that Executive executes and does not revoke a Release
as
provided in Section 7 and complies with Section 6.7(b), the Company will pay
or
grant Executive, in lieu of any other severance benefits or any other
compensation, the benefits set forth in this subsection (c) below (“Severance
Benefits”);
provided,
however,
that if
the Company has established any compensation plan or severance benefit that
is
more favorable to Executive than any of the Severance Benefits, the Company
will
pay to Executive such more favorable benefit in lieu of the corresponding
Severance Benefit set forth below:
(i) An
amount
equal to the Base Salary for a period of twelve (12) months from the date of
termination, less any payroll withholding and deductions due on such salary
in
accordance with applicable law, payable as a lump sum payment no later than
the
first business day following the date on which Executive’s right to revoke any
waiver and release of legal claims has expired;
(ii) If,
at
the time of termination of this Agreement, the Company has not yet paid to
the
Executive a bonus under the MICP for the year preceding the year in which this
Agreement is terminated, the Executive will be eligible for such bonus on the
same basis as other executive level employees, and if other executive level
employees receive a bonus under the MICP for the preceding year, the Company
will pay Executive the bonus pursuant to the MICP; provided,
however,
that the
percentage of the Company’s achievement of corporate goals which is used in the
calculation of a portion of such bonus, will be the same as the percentage
established by the compensation committee of the Board for other executive
level
employees; and provided
further that
the
percentage of Executive’s achievement of his personal goals for the preceding
year, which is used in the calculation of a portion of such bonus, will not
be
less than the average of the percentages achieved in the preceding three (3)
years.
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(iii) A
Bonus
for the year in which this Agreement is terminated prorated for the period
during such year Executive was employed prior to the date of termination (or
the
full amount of the Bonus if Executive’s employment is terminated within six (6)
months prior to or twelve (12) months following a Change of Control), payable
as
a lump sum payment no later than the first business day following the date
on
which Executive’s right to revoke any waiver and release of legal claims has
expired; “Bonus”
means
the average of the bonuses awarded to Executive for each of the three (3) fiscal
years prior to the date of termination, or such lesser number of years as may
be
applicable if Executive has not been employed for three (3) full years on the
date of termination. For purposes of determining Executive’s Bonus, to the
extent Executive received no bonus in a year in which other executives received
bonuses, such year will still be taken into account (using zero (0) as the
applicable bonus) in determining Executive’s Bonus, but if Executive did not
receive a bonus for a year in which no executive received a bonus, such year
will not be taken into account and if any portion of the bonuses awarded to
Executive consisted of securities or other property, the fair market value
thereof will be determined in good faith by the Board;
(iv) Acceleration
of vesting of Stock Awards pursuant to the applicable subsection of Section
2.6(c);
(v) During
the period beginning on the first business day following the date on which
Executive’s right to revoke any waiver and release of legal claims has expired
and ending on the earlier of the date (1) which is twelve (12) months following
the date of termination or (2) on which Executive has accepted a full time
position, executive-level outplacement services at the Company’s expense, not to
exceed US$15,000, by a firm selected by Executive from a list compiled by the
Company;
(vi) Provided
the Executive is participating the Company’s health insurance plan on the
termination date, for the period beginning on the date of termination and ending
on the date which is twelve (12) full months following the date of termination
(or, if earlier, the date on which the applicable continuation period under
the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended
(“COBRA”)
or
applicable state continuation coverage law expires), reimburse Executive (1)
for
the costs associated with continuation coverage pursuant to COBRA or applicable
state continuation coverage laws, for Executive and his eligible dependents
who
were covered under the Company’s health insurance plans as of the date of the
termination of this Agreement (provided that Executive will be solely
responsible for all matters relating to his continuation of coverage pursuant
to
COBRA or any corresponding state law, including, without limitation, his
election of such coverage and his timely payment of premiums), or (2) if
Executive is participating the Company’s health insurance plans on the
termination date and is not eligible for continuation coverage pursuant to
either COBRA or any corresponding state law, for the premiums for conversion
coverage if available, otherwise for the premiums of any health insurance with
coverage comparable to that under the Company’s health insurance plans for
Executive and his eligible dependents who were covered under the Company’s
health insurance plans as of the date of the termination of this Agreement
in
either case up to a maximum of 2 times the premium paid by the Company on the
Executive’s behalf under the Company’s plan; and
(vii) For
the
period beginning on the date of termination and ending on the date which is
twelve (12) full months following the date of termination, pay to Executive
the
amount of any life insurance
premiums it was paying prior to the date of the termination of this
Agreement.
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(d) The
Company will have the right to withhold further payments of unpaid Severance
Benefits upon its notice to Executive of the Board’s good faith reasonable
belief, and the basis for the reasonable belief, that Executive has breached
any
of his post-termination obligations to the Company under applicable laws and
as
defined in this Agreement and the PIIA.
6.3 Termination
by Executive for Good Reason.
(a) If
Executive has not previously received a notice of termination from the Company,
Executive may terminate this Agreement at any time for Good Reason by written
notice to the Company as provided below.“Good
Reason”
means:
(i) any material diminution of Executive’s authority, duties or
responsibilities; (ii) any reduction by the Company in Executive’s Base Salary;
(iii) a relocation of Executive’s place of employment to a location in excess of
50 miles from the Company’s current offices in Bethesda, MD; (iv) any material
breach of this Agreement by the Company; (v) any failure to pay Executive the
earned bonus for any period under the MICP or any other bonus or incentive
plan
adopted by the Company, if a majority of other officers of the Company or any
successor or affiliate have been paid bonuses for such period under such plan,
which, for purposes of this provision, will be a material breach of this
Agreement; or (vi) any failure by the Company to obtain the assumption of this
Agreement by any successor or assign of the Company which, for purposes of
this
provision, will be a material breach of this Agreement.
Notwithstanding the foregoing, any actions taken by the Company to accommodate
a
disability of Executive or pursuant to the Family and Medical Leave Act or
an
applicable state leave law will not be a Good Reason for purposes of this
Agreement; provided,
however,
that it
will only be deemed Good Reason if (i) the Company is given written notice
from
Executive within ninety (90) days following the first occurrence of a condition
that Executive considers to constitute Good Reason describing the condition
and
the Company fails to remedy such condition within thirty (30) days following
such written notice, and (ii) Executive resigns from employment effective on
a
date that is within ninety (90) days following the end of the period within
which the Company was entitled to remedy the condition constituting Good Reason
but failed to do so.
(b) If
Executive terminates this Agreement for Good Reason, the Company will pay
Executive (i) the Base Salary due Executive through the date of termination,
(ii) for any accrued PTO not taken at the time of the receipt of the notice
of
termination, and (iii) any other amounts to which Executive is entitled at
the
time of termination under any bonus or compensation plan or practice of the
Company
provided, however, that
any
bonus payments under the MICP will be governed by Section 6.2(c)(ii) and not
this Section.
(c) In
addition, provided that Executive executes and does not revoke a Release as
provided in Section 7 and complies with Section 6.7(b), the Company will pay
or
grant Executive, in lieu of any other severance benefits or any other
compensation, the Severance Benefits set forth in Section 6.2(c).
(d) The
Company will have the right to withhold further payments of unpaid Severance
Benefits upon its notice to Executive of the Board’s good faith reasonable
belief, and the basis for the reasonable belief, that Executive has breached
any
of his post-termination obligations to the Company under applicable laws and
as
defined in this Agreement and the PIIA.
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6.4 Termination
by Executive Without Good Reason.
(a) Executive
may terminate this Agreement at any time without Good Reason effective thirty
(30) days after written notice to the Company or on such other termination
date
agreed with the Company.
(b) If
Executive terminates this Agreement without Good Reason, the Company will pay
Executive (i) the Base Salary due Executive through the date of termination,
(ii) for any accrued PTO not taken at the time of the receipt of the notice
of
termination, and (iii) any other amounts to which Executive is entitled under
any bonus or compensation plan or practice of the Company at the time of
termination. Executive will not be entitled to receive any Severance
Benefits.
6.5 Termination
for Death.
(a) This
Agreement will terminate immediately upon Executive’s death.
(b) Upon
termination of this Agreement due to Executive’s death, the Company will pay to
any beneficiaries designated by Executive in writing in Exhibit
C,
or in
the absence of such designation, to Executive’s estate,
(each a
“Death Benefits Recipient”) (i) the Base Salary due Executive through the date
of termination, (ii) for any accrued PTO not taken by the Executive at the
time
of termination, and (iii) any other amounts to which Executive was entitled
at
the time of termination under any bonus or compensation plan or practice of
the
Company, provided,
however, that
any
bonus payments under the MICP will be governed by Section 6.2(c)(ii) and not
this Section;
(c) In
addition, the Company will pay the Death Benefits Recipient(s), in lieu of
any
other severance benefits or any other compensation, the Severance Benefits
set
forth in Section 6.2(c)(i) - (iv); provided
that if
the
Company provides the Executive with life insurance coverage which is at least
two (2) times the Executive’s Base Salary, then the payment of such life
insurance to the beneficiaries designated in the insurance policy will replace
the Company’s obligation to pay the Death Benefits Recipient(s) the Severance
Benefits set forth in Section 6.2(c)(i) – (iii).
(d) In
addition, provided the Executive’s dependents are participating the Company’s
health insurance plan at the time of his death, for the period beginning on
the
date of death and ending on the date which is twelve (12) full months following
the date of death (or, if earlier, the date on which the applicable continuation
period under COBRA or applicable state coverage continuation coverage laws
expires), the Company will reimburse Executive’s eligible dependents (1) for the
costs associated with continuation coverage for such eligible
dependents
pursuant
to COBRA or any corresponding state law)
(provided that Executive’s dependents will be solely responsible for all matters
relating to such continuation of coverage pursuant to COBRA or any corresponding
state law, including, without limitation, election of such coverage and the
timely payment of premiums), or (2) if Executive’s dependents are participating
the Company’s health insurance plans on the termination date and are not
eligible for continuation coverage pursuant to either COBRA or any corresponding
state law, for the premiums for conversion coverage if available, otherwise
for
the premiums of any health insurance with coverage comparable to that under
the
Company’s health insurance plans for Executive and his eligible dependents who
were covered under the Company’s health insurance plans as of the date of the
termination of this Agreement in either case up to a maximum of 2 times the
premium paid by the Company on the Executive’s behalf under the Company’s plan ;
and
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(e) Executive
may change any beneficiary designated in Exhibit
C
by
written notice to the Company.
6.6 Termination
for Disability.
(a) The
Company may terminate this Agreement for Executive’s Disability by written
notice to Executive effective upon receipt or per a termination date agreed
with
Executive. “Disability”
will
be
deemed to have occurred if Executive was physically or mentally incapacitated
or
disabled or otherwise unable fully to discharge his duties hereunder for (i)
a
period in excess of ninety (90) consecutive days, or (ii) a period in excess
of
one hundred twenty (120) days in the aggregate in any consecutive one hundred
eighty (180) day period.
This
definition will be interpreted and applied consistent with the Americans with
Disabilities Act, the Family and Medical Leave Act and other applicable law.
The
existence of Executive’s Disability will be determined by the Company on the
advice of a physician chosen by the Company and either the Executive or, in
the
event of mental disability, Executive’s Death Benefits Recipients. The Company
reserves the right to have Executive examined by such physician at the Company’s
expense.
(b) If
the
Company terminates this Agreement for Executive’s Disability, the Company will
pay Executive (i) the Base Salary due Executive through the date of termination,
(ii) for any accrued PTO not taken at the time of termination, and (iii) any
other amounts to which Executive is entitled at the time of termination under
any bonus or compensation plan or practice of the Company
provided, however, that
any
bonus payments under the MICP will be governed by Section 6.2(c)(ii) and not
this Section.
(c) In
addition, provided that Executive executes and does not revoke a Release as
provided in Section 7 and complies with Section 6.7(b), the Company will pay
or
grant Executive, in lieu of any other severance benefits or any other
compensation, the Severance Benefits set forth in Section 6.2(c) (i)-(iv),
(vi)
and (vii); provided
that if
the
Company provides the Executive with long term disability insurance coverage
at
not less than 80% of his Base Salary with eligibility for coverage to the age
of
65, then the payment pursuant to such insurance will replace the Company’s
obligation to pay the Severance Benefits set forth in Section 6.1(c)(i) – (iii).
At Executive’s election he may pay the premium for this long term disability
coverage.
(d) The
Company will have the right to withhold further payments of unpaid Severance
Benefits upon its notice to Executive of the Board’s good faith reasonable
belief, and the basis for the reasonable belief, that Executive has breached
any
of his post-termination obligations to the Company under applicable laws and
as
defined in this Agreement and the PIIA.
10
6.7 Cooperation
Obligations.
(a) Transition
Activities.
After
delivery or receipt by Executive of any notice of termination, and for a
reasonable period following any termination of this Agreement (to include any
period for which Executive has been provided Base Salary as a severance
benefit), Executive will fully cooperate with the Company in all matters
relating to the winding up of Executive’s pending work and the orderly transfer
of any such pending work to such other employees as may be designated by the
Company.
(b) Return
of the Company’s Property.
If the
Company has delivered or received a notice of termination of this Agreement,
the
Company will have the right, at its option, to require Executive to vacate
his
offices and to cease all activities on the Company’s behalf prior to the
effective date of termination. Upon the termination of this Agreement, as a
condition to Executive’s receipt of any post-termination benefits described in
this Agreement, Executive will immediately surrender to the Company all lists,
books and records of, or in connection with, the Company’s business, and all
other tangible and intangible property belonging to the Company, it being
distinctly understood that all such lists, books and records, and other
property, are the property of the Company. Executive will deliver to the Company
a signed statement certifying compliance with this Section 6.7 prior to the
receipt of any post-termination benefits described in this
Agreement
(c) Litigation.
After
the termination of this Agreement, Executive will cooperate with the Company
in
responding to the reasonable requests of the Company’s Chairman of the Board,
CEO or General Counsel, in connection with any and all existing or future
litigation, arbitrations, mediations or investigations brought by or against
the
Company, or its or their respective affiliates, agents, officers, directors
or
employees, whether administrative, civil or criminal in nature, in which the
Company reasonably deems Executive’s cooperation necessary or desirable. In such
matters, Executive agrees to provide the Company with reasonable advice,
assistance and information, including offering and explaining evidence,
providing sworn statements, and participating in discovery and trial preparation
and testimony. Executive also agrees to promptly send the Company copies of
all
correspondence (for example, but not limited to, subpoenas) received by
Executive in connection with any such legal proceedings, unless Executive is
expressly prohibited by law from so doing.
(d) Expenses
and Fees. The
Company will reimburse Executive for reasonable out-of-pocket expenses incurred
by Executive as a result of his cooperation with the obligations described
in
this Section 6.7, within thirty (30) days of the presentation of appropriate
documentation thereof, in accordance with the Company’s standard reimbursement
policies and procedures. Except as provided in the preceding sentence, Executive
will not be entitled to any compensation for activities performed pursuant
to
this Section 6.7 during the period for which Executive has been provided Base
Salary as a severance benefit. Thereafter, the Company will pay Executive a
compensation for activities performed pursuant to this Section 6.7 based on
an
hourly rate of 160th
of
Executive’s monthly Base Salary immediately preceding the termination of
employment (the “Fees”).
In
performing obligations under this Section 6.7 following termination of this
Agreement, Executive agrees and acknowledges that he will be serving as an
independent contractor, not as a Company employee, and he will be entirely
responsible for the payment of all income taxes and any other taxes due and
owing as a result of the payment of Fees, will not be eligible to participate
in
any Company benefit plans while performing such services.
11
7.
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Release
|
As
a
condition precedent to receipt of any Severance Benefits, Executive will provide
the Company with an executed and effective general release substantially in
the
form attached hereto as Exhibit B
(the
“Release”),
or a
release in such other form as the parties may agree upon at the
time.
8.
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Non-Competition
|
Executive
will not, for a period of twelve (12) months from the termination of this
Agreement, for Executive’s own account, or as owner, manager, officer,
shareholder, consultant, director, representative or employee of a company,
participate in the research or development of (i) antibodies against the EpCAM
target molecule, or (ii) BiTE antibodies or active agents which trigger the
same
mechanism as BiTE antibodies (collectively, the “Non-Compete
Field”).
The
Board may, in its discretion, reduce the scope of the Non-Compete
Field.
9.
|
Non-Solicitation
|
While
employed by the Company, and for a period of six (6) months from the termination
of this Agreement, Executive will not interfere with the business of the Company
by (a) soliciting, attempting to solicit, inducing, or otherwise causing any
employee of the Company to terminate employment in order to become an employee,
consultant or independent contractor to or for any other person or entity;
or
(b) directly or indirectly causing any third party that provides services to
the
Company to terminate, diminish, or materially alter in a manner harmful to
the
Company its relationship with the Company.
10.
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General
Provisions
|
10.1 Notices.
Any
notices provided hereunder must be in writing and will be deemed effective
upon
the earlier of personal delivery or receipt if delivered by mail or courier
service, to the Company at its primary office location and to Executive at
his
address as listed on the Company payroll or Executive’s then current place of
abode.
10.2 Confidentiality.
Unless
publicly disclosed by the Company, Executive will hold the provisions of this
Agreement in strictest confidence and will not publicize or disclose this
Agreement in any manner whatsoever; provided,
however,
that Executive may disclose this Agreement: (a)
to
Executive’s immediate family;
(b)
in
confidence to his attorneys, accountants, auditors, tax preparers, and financial
advisors;
(c) insofar
as such disclosure may be necessary to enforce its terms or as otherwise
permitted or required by law. In particular, and without limitation, Executive
agrees not to disclose the terms of this Agreement to any current or former
employee of the Company.
10.3 Reasonableness
of Restrictions.
Executive acknowledges and agrees that (a) he has read this Agreement in its
entirety and understands it, (b) the limitations imposed in this Agreement
do
not prevent him from earning a living or pursuing his career following the
termination of this Agreement, and (c) the restrictions contained in this
Agreement are reasonable, proper, and necessitated by the Company’s legitimate
business interests. Executive represents and agrees that he is entering into
this Agreement freely and with knowledge of its contents with the intent to
be
bound by the Agreement and the restrictions contained in it.
12
10.4 Arbitration
and Remedies. The
parties recognize that litigation in federal or state courts or before federal
or state administrative agencies of disputes arising out of Executive’s
employment with the Company or out of this Agreement, or Executive’s termination
of employment or termination of this Agreement, may not be in the best interests
of either Executive or the Company, and may result in unnecessary costs, delays,
complexities, and uncertainty. The parties agree that any dispute between the
parties arising out of or relating to the negotiation, execution, performance
or
termination of this Agreement or Executive’s employment, including, but not
limited to, any claim arising out of this Agreement, claims under Title VII
of
the Civil Rights Act of 1964, as amended, the Civil Rights Act of 1991, the
Age
Discrimination in Employment Act of 1967, the Americans with Disabilities Act
of
1990, Section 1981 of the Civil Rights Act of 1966, as amended, the Family
Medical Leave Act, Executive Retirement Income Security Act, and any similar
federal, state or local law, statute, regulation, or any common law doctrine,
whether that dispute arises during or after employment, but excluding claims
under or relating to Section 4.3, 6.7(b), 8 or 9 of this Agreement or relating
to any separate agreements between the parties (including the Proprietary
Information and Inventions Agreement) which do not specify arbitration as the
exclusive remedy and which may be pursued in any court of applicable
jurisdiction (such claims, the “Excluded
Claims”),
will
be settled by binding arbitration in accordance with the National Rules for
the
Resolution of Employment Disputes of the American Arbitration Association by
a
single arbitrator selected in accordance with said rules; provided
however, that
as
it may be impossible to assess the damages caused by violation of this Agreement
or any of its terms, the parties agree upon the threatened or actual violation
of this Agreement or any of its terms the aggrieved party will have the right
to
obtain injunctive relief from a court, without bond and without prejudice to
any
other rights and remedies for a breach or threatened breach of this
Agreement. The
location for the arbitration will be the Washington, D.C. metropolitan area.
Any
award made by such panel will be final, binding and conclusive on the parties
for all purposes, and judgment upon the award rendered by the arbitrators may
be
entered in any court having jurisdiction thereof. The arbitrators’ fees and
expenses and all administrative fees and expenses associated with the filing
of
the arbitration will be borne by the Company; provided however,
that at
Executive’s option, Executive may voluntarily pay up to one-half the costs and
fees. The parties acknowledge and agree that their obligations to arbitrate
under this Section survive the termination of this Agreement and continue after
the termination of the employment relationship between Executive and the
Company. The parties each further agree that the arbitration provisions of
this
Agreement will provide each party with its exclusive
remedy,
and
each party expressly waives any right it might have to seek redress in any
other
forum, except as otherwise expressly provided in this Agreement. By election
arbitration as the means for final settlement of all claims (other than the
Excluded Claims), the
parties hereby waive their respective rights to, and agree not to, xxx each
other in any action in a Federal, State or local court with respect to such
claims, but may seek to enforce in court an arbitration award rendered pursuant
to this Agreement. The parties specifically agree to waive their respective
rights to a trial by jury, and further agree that no demand, request or motion
will be made for trial by jury.
13
10.5 Surviving
Clauses.
Sections
2.6(c), 3,
5,
5,
6,
7,
8
and
9
(including the definitions of any defined terms referenced therein) will survive
any termination or expiration of this Agreement.
10.6 Severability.
In the
event that a court finds this Agreement, or any of its restrictions, to be
ambiguous, unenforceable, or invalid, the parties agree that the court will
read
the Agreement as a whole and interpret the restriction(s) at issue to be
enforceable and valid to the maximum extent allowed by law. If the court
declines to enforce this Agreement in the manner provided in this Section 10.6,
Executive and the Company agree that this Agreement will be automatically
modified to provide the Company with the maximum protection of its business
interests allowed by law and Executive agrees to be bound by this Agreement
as
modified. In case any one or more of the provisions, subsections, or sentences
contained in this Agreement will, for any reason, be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability
will not affect the other provisions of this Agreement, and this Agreement
will
be construed as if such invalid, illegal or unenforceable provision had never
been contained herein.
10.7 Waiver.
If
either party should waive any breach of any provisions of this Agreement or
fail
to enforce performance by the other party, he or it will not thereby be deemed
to have waived any preceding or succeeding breach or performance of the same
or
any other provision of this Agreement. Any such waiver will be effective only
if
made in writing and signed by the Party waiving such breach or
performance.
10.8 Complete
Agreement; Amendment.
This
Agreement and its Exhibits, constitute the entire agreement between Executive
and the Company and it is the complete, final, and exclusive embodiment of
their
agreement with regard to this subject matter. This Agreement replaces all
previous agreements regarding the service relationship of Executive with the
Company. It is entered into without reliance on any promise or representation
other than those expressly contained herein. This Agreement cannot be modified
or amended except in a writing signed by an authorized representative of the
Company and Executive.
10.9 Counterparts.
This
Agreement may be executed in separate counterparts, any one of which need not
contain signatures of more than one party, but all of which taken together
will
constitute one and the same Agreement.
10.10 Assignment;
Assumption by Successor; Non-transferability of Interest.
(a) The
Company may assign this Agreement, without the consent of Executive, to any
business entity which at any time, whether by purchase, merger or otherwise,
directly or indirectly, acquires all or substantially all of the assets or
business of the Company. The Company will require any successor (whether direct
or indirect, by purchase, merger or otherwise) to all or substantially all
of
the business or assets of the Company expressly to assume and to agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken place;
provided,
however,
that no
such assumption will relieve the Company of its obligations hereunder. As used
in this Agreement, the “Company” will mean the Company as hereinbefore defined
and any successor to its business and/or assets as aforesaid which assumes
and
agrees to perform this Agreement by operation of law or otherwise.
14
(b) None
of
the rights of Executive to receive any form of compensation payable pursuant
to
this Agreement will be assignable or transferable except through a testamentary
disposition or by the laws of descent and distribution upon the death of
Executive. Any attempted assignment, transfer, conveyance, or other disposition
(other than as aforesaid) of any interest in the rights of Executive to receive
any form of compensation to be made by the Company pursuant to this Agreement
will be void.
10.11 Headings.
The
headings of the sections hereof are inserted for convenience only and will
not
be deemed to constitute a part hereof nor to affect the meaning thereof.
10.12 Construction.
The
language in all parts of this Agreement will in all cases be construed simply,
according to its fair meaning, and not strictly for or against any of the
parties hereto. Without limitation, there will be no presumption against any
party on the ground that such party was responsible for drafting this Agreement
or any part thereof.
10.13 Choice
of Law.
All
questions concerning the construction, validity, interpretation of this
Agreement will be governed by the laws of the State of Maryland as applicable
to
contracts made and wholly performed within the State of Maryland by residents
of
that State.
In
Witness Whereof,
the
parties have executed this Agreement on the day and year first above
written.
/s/
Xxxxxxxxx Xxxx
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|
Name:
Xxxxxxxxx Xxxx
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|
Title:
President and CEO
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|
/s/
Xxxxxxx Xxxxxxxx
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|
Xxxxxxx
Xxxxxxxx
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15
Exhibit
A
EMPLOYEE
PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
In
consideration of my employment or continued employment by Micromet,
Inc.,
its
subsidiaries, parents, affiliates, successors and assigns (together, the
“Company”)
and
the compensation now and hereafter paid to me, I hereby enter into this
Proprietary Information and Inventions Agreement (the “Agreement”)
and
agree as follows:
1. Nondisclosure.
1.1 Recognition
of the Company's Rights; Nondisclosure.
I
understand and acknowledge that my employment by the Company creates a
relationship of confidence and trust with respect to the Company’s Proprietary
Information (defined below) and that the Company has a protectable interest
therein. At all times during my employment and thereafter, I will hold in
strictest confidence and will not disclose, use, lecture upon or publish any
of
the Company's Proprietary Information, except as such disclosure, use or
publication may be required in connection with my work for the Company, or
unless an officer of the Company expressly authorizes such in writing. I will
obtain the Company's written approval before publishing or submitting for
publication any material (written, verbal, or otherwise) that relates to my
work
at the Company and/or incorporates any Proprietary Information. I hereby assign
to the Company any rights I may have or acquire in such Proprietary Information
and recognize that all Proprietary Information will be the sole property of
the
Company and its assigns. I will take all reasonable precautions to prevent
the
inadvertent or accidental disclosure of Proprietary Information.
1.2 Proprietary
Information. The
term
“Proprietary
Information”
will
mean any and all confidential and/or proprietary knowledge, data or information
of the Company, its affiliates, parents and subsidiaries, whether having
existed, now existing, or to be developed during my employment. By way of
illustration but not limitation, “Proprietary
Information”
includes (a) the identity, structure, chemical formula and composition of
any materials in research or development by the Company; procedures and
formulations for producing or manufacturing any such materials; all information
relating to preclinical and clinical studies and the results thereof; regulatory
documentation and/or submissions and information relating to the regulatory
status of any such materials; any data, reports, analyses, techniques,
processes, technical information, ideas, know-how, trade secrets, patents,
patent applications or inventions and any other proprietary technology and
all
Proprietary Rights therein (hereinafter collectively referred to as
“Inventions”);
(b) information regarding research, development, ongoing or potential
projects, grants, grant proposals, new products, marketing and selling, business
plans, budgets and unpublished financial statements, licenses, prices and costs,
margins, discounts, credit terms, pricing and billing policies, quoting
procedures, methods of obtaining business, forecasts, future plans and potential
strategies, financial projections and business strategies, operational plans,
financing and capital-raising plans, activities and agreements, internal
services and operational manuals, methods of conducting Company business,
suppliers and supplier information, and purchasing; (c) information regarding
customers and potential customers of the Company, including customer lists,
names, representatives, their needs or desires with respect to the types of
products or services offered by the Company, proposals, bids, contracts and
their contents and parties, the type and quantity of products and services
provided or sought to be provided to customers and potential customers of the
Company and other non-public information relating to customers and potential
customers; (d) information regarding any of the Company’s business partners and
their services, including names; representatives, proposals, bids, contracts
and
their contents and parties, the type and quantity of products and services
received by the Company, and other non-public information relating to business
partners; (e) information regarding personnel, employee lists, compensation,
and
employee skills; and (f) any other non-public information which a competitor
of
the Company could use to the competitive disadvantage of the Company.
Notwithstanding the foregoing, it is understood that, at all such times, I
am
free to use information which is generally known in the trade or industry
through no breach of this agreement or other act or omission by me, and I am
free to discuss the terms and conditions of my employment with others to the
extent permitted by law.
A-1.
1.3 Third
Party Information.
I
understand, in addition, that the Company has received and in the future will
receive from third parties their confidential and/or proprietary knowledge,
data, or information (“Third
Party Information”).
During my employment and thereafter, I will hold Third Party Information in
the
strictest confidence and will not disclose to anyone (other than the Company
personnel who need to know such information in connection with their work for
the Company) or use, except in connection with my work for the Company, Third
Party Information unless expressly authorized by an officer of the Company
in
writing.
1.4 Term
of Nondisclosure Restrictions.
I
understand that Proprietary Information and Third Party Information is never
to
be used or disclosed by me, as provided in this Section 1. If, however, a court
decides that this Section 1 or any of its provisions is unenforceable for lack
of reasonable temporal limitation and the Agreement or its restriction(s) cannot
otherwise be enforced, I agree and the Company agrees that the two (2) year
period after the date my employment ends will be the temporal limitation
relevant to the contested restriction, provided, however, that this sentence
will not apply to trade secrets protected without temporal limitation under
applicable law.
1.5 No
Improper Use of Information of Prior Employers and Others.
During
my employment by the Company I will not improperly use or disclose any
confidential information or trade secrets, if any, of any former employer or
any
other person to whom I have an obligation of confidentiality, and I will not
bring onto the premises of the Company any unpublished documents or any property
belonging to any former employer or any other person to whom I have an
obligation of confidentiality unless consented to in writing by that former
employer or person.
2. Assignment
of Inventions.
2.1 Proprietary
Rights.
The term
“Proprietary
Rights”
will
mean all trade secrets, patents, copyrights, trade marks, mask works and other
intellectual property rights throughout the world.
2.2 Prior
Inventions.
Inventions, if any, patented or unpatented, which I made prior to the
commencement of my employment with the Company are excluded from the scope
of
this Agreement. To preclude any possible uncertainty, I have set forth on
Exhibit A
(Previous
Inventions) attached hereto a complete list of all Inventions that I have,
alone
or jointly with others, conceived, developed or reduced to practice or caused
to
be conceived, developed or reduced to practice prior to the commencement of
my
employment with the Company, that I consider to be my property or the property
of third parties, and that I wish to have excluded from the scope of this
Agreement (collectively referred to as “Prior
Inventions”).
If
disclosure of any such Prior Invention would cause me to violate any prior
confidentiality agreement, I understand that I am not to list such Prior
Inventions in Exhibit A
but am
only to disclose a cursory name for each such invention, a listing of the
party(ies) to whom it belongs and the fact that full disclosure as to such
inventions has not been made for that reason. A space is provided on
Exhibit
A
for such
purpose. If no such disclosure is attached, I represent that there are no Prior
Inventions. If, in the course of my employment with the Company, I incorporate
a
Prior Invention into a Company product, process or machine, the Company is
hereby granted and will have a nonexclusive, royalty-free, irrevocable,
perpetual, fully-paid, worldwide license (with rights to sublicense through
multiple tiers of sublicensees) to make, have made, modify, make derivative
works of, publicly perform, publicly perform, use, sell, import, and exercise
any and all present and future rights in such Prior Invention. Notwithstanding
the foregoing, I agree that I will not incorporate, or permit to be
incorporated, Prior Inventions in any Company Inventions without the Company's
prior written consent.
2.3 Assignment
of Inventions.
Subject
to Subsections 2.4 and 2.6, I hereby assign and agree to assign in the future
(when any such Inventions or Proprietary Rights are first reduced to practice
or
first fixed in a tangible medium, as applicable) to the Company all my right,
title and interest in and to any and all Inventions (and all Proprietary Rights
with respect thereto) whether or not patentable or registrable under copyright
or similar statutes, made or conceived or reduced to practice or learned by
me,
either alone or jointly with others, during the period of my employment with
the
Company. Inventions assigned to the Company, or to a third party as directed
by
the Company pursuant to this Section 2, are hereinafter referred to as
“Company
Inventions.”
2.4 Unassigned
or Nonassignable Inventions.
I
recognize that this Agreement will not be deemed to require assignment of any
Invention that I developed entirely on my own time without using the Company’s
equipment, supplies, facilities, trade secrets, or Proprietary Information,
except for those Inventions that either (i) relate to the Company’s actual or
anticipated business, research or development, or (ii) result from or are
connected with work performed by me for the Company. In addition, this Agreement
does not apply to any Invention which qualifies fully for protection from
assignment to the Company under any specifically applicable state law,
regulation, rule, or public policy (“Specific
Inventions Law”).
A-2.
2.5 Obligation
to Keep Company Informed.
During
the period of my employment and for six (6) months after termination of my
employment with the Company, I will promptly disclose to the Company fully
and
in writing all Inventions authored, conceived or reduced to practice by me,
either alone or jointly with others. In addition, I will promptly disclose
to
the Company all patent applications filed by me or on my behalf within a year
after termination of employment. At the time of each such disclosure, I will
advise the Company in writing of any Inventions that I believe fully qualify
for
protection under the provisions of a Specific Inventions Law; and I will at
that
time provide to the Company in writing all evidence necessary to substantiate
that belief. The Company will keep in confidence and will not use for any
purpose or disclose to third parties without my consent any confidential
information disclosed in writing to the Company pursuant to this Agreement
relating to Inventions that qualify fully for protection under a Specific
Inventions Law. I will preserve the confidentiality of any Invention that does
not fully qualify for protection under a Specific Inventions Law.
2.6 Government
or Third Party.
I also
agree to assign all my right, title and interest in and to any particular the
Company Invention to a third party, including without limitation the United
States, as directed by the Company.
2.7 Works
for Hire.
I
acknowledge that all original works of authorship which are made by me (solely
or jointly with others) within the scope of my employment and which are
protectable by copyright are “works made for hire,” pursuant to United States
Copyright Act (17 U.S.C., Section 101).
2.8 Enforcement
of Proprietary Rights.
I will
assist the Company in every proper way to obtain, and from time to time enforce,
United States and foreign Proprietary Rights relating to the Company Inventions
in any and all countries. To that end I will execute, verify and deliver such
documents and perform such other acts (including appearances as a witness)
as
the Company may reasonably request for use in applying for, obtaining,
perfecting, evidencing, sustaining and enforcing such Proprietary Rights and
the
assignment thereof. In addition, I will execute, verify and deliver assignments
of such Proprietary Rights to the Company or its designee. My obligation to
assist the Company with respect to Proprietary Rights relating to such the
Company Inventions in any and all countries will continue beyond the termination
of my employment, but the Company will compensate me at a reasonable rate after
my termination for the time actually spent by me at the Company's request on
such assistance.
In
the
event the Company is unable for any reason, after reasonable effort, to secure
my signature on any document needed in connection with the actions specified
in
the preceding paragraph, I hereby irrevocably designate and appoint the Company
and its duly authorized officers and agents as my agent and attorney in fact,
which appointment is coupled with an interest, to act for and in my behalf
to
execute, verify and file any such documents and to do all other lawfully
permitted acts to further the purposes of the preceding paragraph with the
same
legal force and effect as if executed by me. I hereby waive and quitclaim to
the
Company any and all claims, of any nature whatsoever, which I now or may
hereafter have for infringement of any Proprietary Rights assigned hereunder
to
the Company.
3. Records. I
agree
to keep and maintain adequate and current records (in the form of notes,
sketches, drawings and in any other form that may be required by the Company)
of
all Proprietary Information developed by me and all Inventions made by me during
the period of my employment at the Company, which records will be available
to
and remain the sole property of the Company at all times.
4. Duty
Of Loyalty During Employment. I
agree
that during the period of my employment by the Company I will not, without
the
Company's express written consent, directly or indirectly engage in any
employment or business activity which is directly or indirectly competitive
with, or would otherwise conflict with, my employment by the
Company.
5. Reasonableness
Of Restrictions.
5.1 I
agree
that I have read this entire Agreement and understand it. I agree that this
Agreement does not prevent me from earning a living or pursuing my career.
I
agree that the restrictions contained in this Agreement are reasonable, proper,
and necessitated by the Company’s legitimate business interests. I represent and
agree that I am entering into this Agreement freely and with knowledge of its
contents with the intent to be bound by the Agreement and the restrictions
contained in it.
A-3.
5.2 In
the
event that a court finds this Agreement, or any of its restrictions, to be
ambiguous, unenforceable, or invalid, I and the Company agree that the court
will read the Agreement as a whole and interpret the restriction(s) at issue
to
be enforceable and valid to the maximum extent allowed by law.
5.3 If
the
court declines to enforce this Agreement in the manner provided in subsection
5.2,
I and
the Company agree that this Agreement will be automatically modified to provide
the Company with the maximum protection of its business interests allowed by
law
and I agree to be bound by this Agreement as modified.
6. No
Conflicting Agreement or Obligation.
I
represent that my performance of all the terms of this Agreement and as an
employee of the Company does not and will not breach any agreement to keep
in
confidence information acquired by me in confidence or in trust prior to my
employment by the Company. I have not entered into, and I agree I will not
enter
into, any agreement either written or oral in conflict herewith.
7. Return
of the Company Property.
When I
leave the employ of the Company, I will deliver to the Company any and all
drawings, notes, memoranda, specifications, devices, formulas, and documents,
together with all copies thereof, and any other material containing or
disclosing any Company Inventions, Third Party Information or Proprietary
Information of the Company. I further agree that any property situated on the
Company's premises and owned by the Company, including disks and other storage
media, filing cabinets or other work areas, is subject to inspection by the
Company personnel at any time with or without notice. Prior to leaving, I will
cooperate with the Company in completing and signing the Company's termination
statement if requested to do so by the Company.
8. Notices.
Any
notices required or permitted hereunder will be given to the appropriate party
at the address specified below or at such other address as the party will
specify in writing. Such notice will be deemed given upon personal delivery
to
the appropriate address or if sent by certified or registered mail, three (3)
days after the date of mailing.
9. Notification
of New Employer.
In the
event that I leave the employ of the Company, I hereby consent to the
notification of my new employer of my rights and obligations under this
Agreement.
10. General
Provisions
10.1 Governing
Law.
All
questions concerning the construction, validity, interpretation of this
Agreement will be governed by and construed according to the laws of the State
of Maryland as applicable to contracts made and wholly performed within the
State of Maryland by residents of the State of Maryland.
I hereby
expressly consent to the personal jurisdiction and venue of the state and
federal courts located in Xxxxxxxxxx County, Maryland for any lawsuit filed
there against me by Company arising from or related to this Agreement.
10.2 Severability.
In case
any one or more of the provisions, subsections, or sentences contained in this
Agreement will, for any reason, be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability will not affect
the other provisions of this Agreement, and this Agreement will be construed
as
if such invalid, illegal or unenforceable provision had never been contained
herein. If moreover, any one or more of the provisions contained in this
Agreement will for any reason be held to be excessively broad as to duration,
geographical scope, activity or subject, it will be construed by limiting and
reducing it, so as to be enforceable to the extent compatible with the
applicable law as it will then appear.
10.3 Successors
and Assigns.
This
Agreement is for my benefit and the benefit of the Company, its successors,
assigns, parent corporations, subsidiaries, affiliates, and purchasers, and
will
be binding upon my heirs, executors, administrators and other legal
representatives.
10.4 Survival.
The
provisions of this Agreement will survive the termination of my employment,
regardless of the reason, and the assignment of this Agreement by the Company
to
any successor in interest or other assignee.
10.5 Employment
Status.
I agree
and understand that nothing in this Agreement will change my employment status
or confer any right with respect to continuation of employment by the Company,
nor will it interfere in any way with my right or the Company's right to
terminate my employment at any time, with or without cause or advance
notice.
A-4.
10.6 Waiver.
No
waiver by the Company of any breach of this Agreement will be a waiver of any
preceding or succeeding breach. No waiver by the Company of any right under
this
Agreement will be construed as a waiver of any other right. The Company will
not
be required to give notice to enforce strict adherence to all terms of this
Agreement.
10.7 Advice
of Counsel. I ACKNOWLEDGE THAT, IN EXECUTING THIS AGREEMENT, I HAVE HAD THE
OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND I HAVE READ
AND
UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT
WILL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR PREPARATION
HEREOF.
10.8 Entire
Agreement.
The
obligations pursuant to Sections 1 and 2 (except Subsection 2.7) of this
Agreement will apply to any time during which I was previously engaged, or
am in
the future engaged, by the Company as a consultant if no other agreement governs
nondisclosure and assignment of inventions during such period. This Agreement
is
the final, complete and exclusive agreement of the parties with respect to
the
subject matter hereof and supersedes and merges all prior discussions between
us. No modification of or amendment to this Agreement, nor any waiver of any
rights under this Agreement, will be effective unless in writing and signed
by
the party to be charged. Any subsequent change or changes in my duties, salary
or compensation will not affect the validity or scope of this Agreement.
I
have read this agreement carefully and understand its terms. I have completely
filled out Exhibit A to this Agreement.
Dated:
August 30, 2008
|
||
/s/
Xxxxxxx Xxxxxxxx
|
||
Name:
Xxxxxxx Xxxxxxxx
|
||
Accepted
and Agreed To:
|
||
By:
|
/s/ Xxxxxxxxx Xxxx | |
Name:
Xxxxxxxxx Xxxx
|
||
Title:
President & CEO
|
A-5.
Exhibit
A
Previous
Inventions
TO:
|
||
FROM:
|
||
DATE:
|
SUBJECT: Previous
Inventions
1. Except
as
listed in Section 2 below, the following is a complete list of all inventions
or
improvements relevant to the subject matter of my employment by [Company]
(the
“Company”)
that
have been made or conceived or first reduced to practice by me alone or jointly
with others prior to my engagement by the Company:
¨
|
No
inventions or improvements.
|
¨
|
See
below:
|
¨
|
Additional
sheets attached.
|
2. Due
to a
prior confidentiality agreement, I cannot complete the disclosure under
Section 1 above with respect to inventions or improvements generally listed
below, the proprietary rights and duty of confidentiality with respect to which
I owe to the following party(ies):
Invention
or Improvement
|
Party(ies)
|
Relationship
|
||||
1.
|
||||||
2.
|
||||||
3.
|
|
|
|
¨ |
Additional
sheets attached.
|
A-6.
Exhibit
B
RELEASE
AGREEMENT
This
Release of Claims (Release”)
is made
as of _________________ by and between Xxxxxxx
Xxxxxxxx (“Executive”)
and
Micromet, Inc. (the “Company”)
(together, the “Parties”).
1. In
consideration for Executive’s execution of this Release, the Company will
provide the following Severance Benefits: [itemize
benefits].
2. Executive
hereby releases, acquits and forever discharges the Company, its parents and
subsidiaries, and their officers, directors, agents, servants, employees,
stockholders, successors, assigns and affiliates, of and from any and all
claims, liabilities, demands, causes of action, costs, expenses, attorneys
fees,
damages, indemnities and obligations of every kind and nature, in law, equity,
or otherwise, which were known or through reasonable diligence should have
been
known, arising out of or in any way related to Releases, events, acts or conduct
at any time prior to the date Executive executes this Settlement Release,
including, but not limited to: all such claims and demands directly or
indirectly arising out of or in any way connected with Executive’s employment
with the Company, including but not limited to, claims of intentional and
negligent infliction of emotional distress, any and all tort claims for personal
injury, claims or demands related to salary, bonuses, commissions, stock, stock
options, or any other ownership interests in the Company, PTO pay, fringe
benefits, expense reimbursements, severance pay, or any other form of
compensation; claims pursuant to any federal, state or local law or cause of
action including, but not limited to, any and all claims and causes of action
that the Company, its parents and subsidiaries, and its and their respective
officers, directors, agents, servants, employees, attorneys, shareholders,
successors, assigns or affiliates:
·
|
has
violated its personnel policies, handbooks, contracts of employment,
or
covenants of good faith and fair
dealing;
|
·
|
has
discriminated against him on the basis of age, race, color, sex (including
sexual harassment), national origin, ancestry, disability, religion,
sexual orientation, marital status, parental status, source of income,
entitlement to benefits, any union activities or other protected
category
in violation of any local, state or federal law, constitution, ordinance,
or regulation, including but not limited to: Title VII of the Civil
Rights
Act of 1964, as amended; 42 U.S.C. § 1981, as amended; the Equal Pay
Act; the Americans With Disabilities Act; the Family and Medical
Leave
Act; the Employee Retirement Income Security Act; Section 510; and
the
National Labor Relations Act;
|
·
|
has
violated any statute, public policy or common law (including but
not
limited to claims for retaliatory discharge; negligent hiring, retention
or supervision; defamation; intentional or negligent infliction of
emotional distress and/or mental anguish; intentional interference
with
contract; negligence; detrimental reliance; loss of consortium to
him or
any member of his/her family and/or promissory
estoppel).
|
Excluded
from this Release are any claims which cannot be waived by law. Executive is
waiving, however, his/her right to any monetary recovery should any governmental
agency or entity, such as the EEOC or the DOL, pursue any claims on his/her
behalf. Executive acknowledges that he is knowingly and voluntarily waiving
and
releasing any rights he may have under the ADEA, as amended. Executive also
acknowledges that (i) the consideration given to his/her in exchange for the
waiver and release in this Release is in addition to anything of value to which
he was already entitled, and (ii) that he/she has been paid for all time worked,
have received all the leave, leaves of absence and leave benefits and
protections for which he/she is eligible, and have not suffered any on-the-job
injury for which he/she has not already filed a claim. Executive further
acknowledges that he has been advised by this writing that: (a) his waiver
and
release do not apply to any rights or claims that may arise after the execution
date of this Release; (b) he has been advised hereby that he/she has the right
to consult with an attorney prior to executing this Release; (c) he has
twenty-one (21) days to consider this Release (although Executive may choose
to
voluntarily execute this Release earlier and if he/she does he/she will sign
the
Consideration Period waiver below); (d) he has seven (7) days following his
execution of this Release to revoke the Release; and (e) this Release will
not
be effective until the date upon which the revocation period has expired
unexercised, which will be the eighth day after Executive executes this
Release.
3. On
or
before the last day of Executive’s employment, Executive agrees to return to the
Company all Company documents (and all copies thereof) and other Company
property that Executive has had in his/her possession at any time, including,
but not limited to, Company files, notes, drawings, records, business plans
and
forecasts, financial information, specifications, computer-recorded information,
tangible property (including, but not limited to, computers), credit cards,
entry cards, identification badges and keys; and, any materials of any kind
that
contain or embody any proprietary or confidential information of the Company
(and all reproductions thereof). Executive will coordinate the return of Company
property with [name/title].
4. Executive
further agrees that both during and after Executive’s employment Executive
acknowledges his/her continuing obligations under his/her Proprietary
Information, Inventions and Non-Competition Agreement not to use or disclose
any
confidential or proprietary information of the Company and to refrain from
certain solicitation and competitive activities.
5. It
is
understood that Executive will hold the provisions of this Release in strictest
confidence and will not publicize or disclose it in any manner whatsoever;
provided,
however,
that:
(a) Executive may disclose this Release to his immediate family; (b) Executive
may disclose this Release in confidence to his/her attorney, accountant,
auditor, tax preparer, and financial advisor; and (c) Executive may disclose
this Release insofar as such disclosure may be required by law.
6. Executive
agrees not to disparage the Company, and the Company’s attorneys, directors,
managers, partners, employees, agents and affiliates, in any manner likely
to be
harmful to them or their business, business reputation or personal reputation;
provided that Executive may respond accurately and fully to any question,
inquiry or request for information when required by legal process.
7. This
Release does not constitute an admission by the Company of any wrongful action
or violation of any federal, state, or local statute, or common law rights,
including those relating to the provisions of any law or statute concerning
employment actions, or of any other possible or claimed violation of law or
rights.
8. Executive
agrees that upon any breach of this Release Executive will forfeit all benefits
paid or owing to Executive by virtue of his execution of this Release. Executive
further acknowledges that it may be impossible to assess the damages caused
by
violation of the terms of paragraphs 3, 4, 5 and 6 of this Release and further
agree that any threatened or actual violation or breach of those paragraphs
of
this Release will constitute immediate and irreparable injury to the Company.
Executive therefore agrees that any such breach of this Release is a material
breach of this Release, and, in addition to any and all other damages and
remedies available to the Company upon Executive’s breach of this Release, the
Company will be entitled to an injunction to prevent Executive from violating
or
breaching this Release. Executive agrees that if the Company is successful
in
whole or part in any legal or equitable action against Executive under this
Release, Executive agree to pay all of the costs, including reasonable
attorney’s fees, incurred by the Company in enforcing the terms of this
Release.
9. This
Release constitutes the complete, final and exclusive embodiment of the entire
Release between the Parties with regard to this subject matter. It is entered
into without reliance on any promise or representation, written or oral, other
than those expressly contained herein, and it supersedes any other such
promises, warranties or representations. This Release may not be modified or
amended except in a writing signed by both Executive and a duly authorized
officer of the Company. This Release will bind the heirs, personal
representatives, successors and assigns of the Parties, and inure to the benefit
of the Parties, their heirs, successors and assigns. If any provision of this
Release is determined to be invalid or unenforceable, in whole or in part,
this
determination will not affect any other provision of this Release and the
provision in question will be modified by the court so as to be rendered
enforceable. This Release will be deemed to have been entered into and will
be
construed and enforced in accordance with the laws of the State of Maryland
as
applied to contracts made and to be performed entirely within
Maryland.
In
Witness Whereof,
the
Parties have duly authorized and caused this Agreement to be executed as
follows:
Xxxxxxx
Xxxxxxxx, an Individual
|
|||
By:
|
|||
Name
|
|||
Title
|
|||
Date:
|
|
Date:
|
Exhibit
C
DEATH
BENEFITS RECIPIENTS
Primary
Beneficiary:
|
Amount
of Payment pursuant to Section 7.5
|
|
[__________]
|
[___]%
|
|
Secondary
Beneficiary (if Primary Beneficiary pre-deceased):
|
||
[__________]
|
[___]%
|
|
[__________]
|
[___]%
|
-i-
Exhibit
D
RELOCATION
BENEFITS
In
order
to facilitate Executive’s and his family’s relocation from his current domicile
to the area of the Company’s headquarter offices in Bethesda (the “Capital
Region”), the Company will:
(a) pay
all
of Executive’s reasonable expenses for the relocation of Executive and his
household to the area of the Capital Region, including two house hunting trips
by Executive and his spouse;
(b) reimburse
Executive’s transaction costs with respect to the sale of his current home in
the amount of up to 6% (grossed up for any applicable tax withholding and
payroll deductions) of the sales price of such home;
(c) reimburse
up to US$10,000 (net of any applicable tax withholding and payroll deductions)
of Executive’s closing costs incurred in connection with the purchase of a new
home in the Capital Region (excluding such costs resulting from the payment
of
“points” to reduce the mortgage interest rate);
(d) reimburse
Executive for the cost of renting a temporary apartment in the Capital Region
for a period ending on the earlier to occur of thirty (30) days after the
closing of the purchase of Executive’s new home in the Capital Region, and (ii)
June 30, 2009, and a maximum amount of up to US$15,000 (grossed up for any
applicable tax withholding and payroll deductions);
(e) if
the
sale of Executive’s current home occurs after the purchase of Executive’s new
home in the Capital Region, the Company will reimburse the mortgage payments
for
Executive’s current home during the period starting on the date on which it is
first offered for sale and ending on the date of closing of the sale;
provided
that
such
reimbursement a maximum amount of up to US$30,000 (grossed up for any applicable
tax withholding and payroll deductions) and will end no later than June 30,
2009; and provided
further that
Executive will use good faith efforts to effect the sale as soon as
practicable.
(f) Reimburse
Executive for the cost of renting or leasing a car in the Capital Region until
such time as Executive and his family have relocated to said region;
provided
that such
reimbursement will not to exceed US$300 per month, and will end no later than
June 30, 2009;
(g) Reimburse
Executive for the cost of flights between Chicago and the DC capital region
until such time as Executive and his family have relocated to said region;
provided
that
such
reimbursement will not to exceed $4,500 in total, and will end no later than
June 30, 2009;
-i-