EXHIBIT 10.1
PRO-PHARMACEUTICALS, INC.
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, made this 6th day of May 2003, with an effective
date as herewith set forth, between Pro-Pharmaceuticals, Inc., a Nevada
corporation having an address of 000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxxxxxxx 00000 (the "Company"), and, Xxxxxxx X. Xxxxxxxx, an individual
residing at 00 Xxxxxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxx Xxxxxxxxx 00000, (the
"Employee").
WHEREAS, the Company desires to hire the Employee, and Employee desires
to be employed by the Company, on the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement, the parties agree as follows:
1. Employment.
The Company shall employ the Employee, and Employee agrees to be so
employed, with the title of Vice President, Investor Relations and report to the
Chief Financial Officer of the Company (the "CFO"). The Employee acknowledges
that Employee's employment by the Company will commence on May 19, 2003. The
Employee agrees that, to the best of the Employee's ability and experience,
Employee will at all times conscientiously perform all of the duties and
obligations assigned to the Employee under this Agreement.
2. Salary; Reimbursement of Expenses.
(a) Salary. The Employee's salary for the period commencing on the date
hereof will be $7,500.00 per month (the "Base Salary"), less required
withholdings, payable on the Company's regular payroll dates. The Employee's
salary shall be reviewed at least annually and is subject to adjustment in
connection therewith. Such salary as in effect from time to time is herein
referred to as the "Base Salary".
(b) Reimbursement of Expenses. The Company shall reimburse the Employee
for all reasonable and appropriate or necessary out-of-pocket expenses incurred
in connection with the Employee's carrying out the Employee's duties under this
Agreement, in conformity with such procedures as the Company may establish from
time to time.
3. Benefits. The Employee will be entitled to insurance, vacation and
other benefits commensurate with the Employee's position in accordance with the
Company's standard employee benefits policies as in effect from time to time.
To the extent the Company obtains insurance with respect to (i)
directors' and officers' liability, (ii) errors and omissions and (iii) general
liability insurance, the Employee shall be covered by such insurance to the same
extent as other senior executives and directors of the Company.
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4. Conflicting Employment. The Employee agrees that, during the term of
the Employee's employment with the Company, Employee will not engage in any
other employment, occupation, consulting or other business activity related to
the business in which the Company is now involved or becomes involved during
such Term, nor will the Employee engage in any other activities that conflict
with the Employee's obligations to Company.
5. Compliance with Company Policy. During this agreement, the Employee
shall observe all Company rules and policies, including such policies as are
contained in the Company policy and procedures manual as from time to time
amended.
6. Termination of Employment.
(a) For Cause. The Company shall have the right, upon written notice
thereof to the Employee, to terminate the Employee's employment hereunder if
(i) the Employee
(A) fails or refuses in any material respect to perform any
duties consistent with the terms hereof communicated to the Employee in
writing by either the CEO, CFO or COO.
(B) is grossly negligent in the performance of the Employee's
duties hereunder,
(C) is convicted of a felony or other violation which in the
reasonable judgment of the CEO or CFO could materially impair the
Company from substantially meeting its business objectives, or
(D) is found to have committed any act of fraud,
misappropriation of funds or embezzlement with respect to the Company;
and
(ii) except as to the matters referred to in clauses (C) or
(D), within thirty (30) days (the "Cure Period") after delivery of
written notice from the CEO, CFO, or the Board of Directors of the
Company (the "Board"), stating with specificity the nature of the
reason for an anticipated for-cause termination, if the Employee fails
to cure, or if the matter is not curable within the Cure Period the
Employee fails, in the judgment of the CEO or CFO, within the Cure
Period to undertake diligently to cure such, failure, refusal or
negligence. In the event of termination pursuant to this Section 6(a),
the Employee shall be entitled to the payments and benefits set forth
in Sections 2 and 3 hereof through the end of the Cure Period.
(b) Without Cause. In the event the employment of the Employee is
terminated by the CEO, CFO or COO for any reason other than as stated in Section
6(a), any such termination deemed for the purposes hereof to be "without cause."
In that event,
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(i) if termination occurs prior to or within six (6) months of
hire (November 30, 2003, the Employee shall be paid Base Salary for one
month, after the effective date of such termination,
(ii) if the termination occurs after six (6) months of hire
(October 31, 2003), the Employee shall be paid Base Salary for two (2)
months, plus one (1) month of service for each year, not to exceed six
(6) months;
(iii) the Employee shall be reimbursed for all expenses
pursuant to Section 2 incurred through such effective date,
(iv) the Employee shall continue to have during such
post-employment period two (2) months of benefits, to the extent
permitted by law, to which he was entitled pursuant to Section 3 hereof
while he was employed by the Company,
(c) Survival of Obligations. The obligations of the Corporation and the
Employee set forth in Section 2(c) (reimbursement of expenses), in this Section
6, Section 7 (confidentiality), Section 8 (assignment of inventions), Section 10
(non-solicitation), Section 11 (non-competition) and Section 12 (publications)
will survive the termination of Employee's employment hereunder, regardless of
cause.
7. Confidential Information.
(a) Company Information. The Employee agrees at all times during the
term of the Employee's employment or other involvement with the Company and
thereafter to hold in strictest confidence, and not to use, except for the
benefit of the Company, or to disclose to, or permit the use by, any person,
firm or corporation without written authorization of its Board of Directors, any
Confidential Information of the Company. The Employee understands that
"Confidential Information" means any Company proprietary information, technical
data, trade secrets or know-how or other business information disclosed to the
Employee by the Company, either directly or indirectly in writing, orally or by
drawings or inspection of parts or equipment, including, but not limited to:
(i) medical and drug research and testing results and
information, research and development techniques, processes, methods,
formulas, trade secrets, patents, patent applications, computer
programs, software, electronic codes, mask works, inventions, machines,
innovations, ideas, designs, creations, writings, books and other works
of authorship, discoveries, improvements, data, formats, projects and
research projects;
(ii) information about costs, profits, markets, sales,
contracts and lists of customers, and distributors, business,
marketing, and strategic plans; forecasts, unpublished financial
information, budgets, projections, and customer identities,
characteristics and agreements as well as all business opportunities,
conceived, designed, devised, developed, perfected or made by the
Employee, whether alone or in conjunction with others, and related in
any manner to the actual or anticipated business of the Company or to
actual or anticipated areas of research and development; and
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(iii) employee personnel files and compensation information.
The Employee further understands that Confidential Information does not
include any of the foregoing items which (A) has become publicly known or made
generally available to the public through no wrongful act of the Employee, (B)
has been disclosed to the Employee by a third party having no duty to keep
Company matters confidential, (C) has been developed by the Employee
independently of employment by the Company, (D) has been disclosed by the
Company to a third party without restrictions on disclosure, or (E) has been
disclosed with the Company's written consent. The Employee further agrees that
all Confidential Information shall at all times remain the property of the
Company.
(b) Third Party and Former Employer Information. The Employee agrees
that the Employee will not improperly use or disclose any proprietary
information or trade secrets of any former employer or other person or entity
with which the Employee has an agreement or duty to keep in confidence
information acquired by the Employee and that the Employee will not bring onto
the premises of the Company any unpublished document or proprietary information
belonging to any such employer, person or entity unless consented to in writing
by such employer, person or entity.
(c) Future Third Party Information. The Employee recognizes that the
Company has received and in the future will receive from third parties their
confidential or proprietary information subject to a duty on the Company's part
to maintain the confidentiality of such information and to use it only for
certain limited purposes. The Employee agrees to hold all such confidential or
proprietary information in the strictest confidence and not to disclose it to
any person, firm or corporation or to use it except as necessary in carrying out
the Employee's work for the Company consistent with the Company's agreement with
such third party.
(d) Prior Actions and Knowledge. The Employee represents and warrants
that from the time of the Employee's first contact with the Company, the
Employee has held in strict confidence all Confidential Information and has not
disclosed any Confidential Information, directly or indirectly, to anyone
outside the Company, or used, copied, published, or summarized any Confidential
Information, except to the extent otherwise permitted in this Agreement.
(e) Third Parties. The Employee will not disclose to the Company or use
on its behalf any confidential information belonging to others, and the Employee
will not bring onto the premises of the Company any confidential information
belonging to any such party unless consented to in writing by such party.
8. Inventions.
(a) Inventions Retained and Licensed. Attached hereto, as Exhibit A, is
a list describing all ideas, processes, trademarks, service marks, inventions,
designs, technologies, computer hardware or software, original works of
authorship, formulas, discoveries, patents, copyrights, copyrightable works,
products, marketing and business ideas, and all improvements, know-how, data,
rights, and claims related to the foregoing, whether or not patentable,
registrable or copyrightable, which were conceived, developed or created by the
Employee prior to Employee's employment or first contact with the Company
(collectively referred to as "Prior Inventions"), (A) which belong to the
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Employee, (B) which relate to the Company's current or contemplated business,
products or research and development, and (C) which are not assigned to the
Company hereunder. If there is no Exhibit A or no items thereon, the Employee
represents that there are no such Prior Inventions. If in the course of
Employee's employment with the Company, the Employee incorporates or embodies
into a Company product, service or process a Prior Invention owned by the
Employee or in which the Employee has an interest, the Company is hereby granted
and shall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide
license to make, have made, modify, use and sell such Prior Invention as part of
or in connection with such product, service or process.
(b) Assignment of Intellectual Property Items. The Employee agrees that
Employee will promptly make full written disclosure to the Company and will hold
in trust for the sole right and benefit of the Company, and the Employee hereby
assigns to the Company, or its designee, all of the Employee's right, title and
interest in and to any and all ideas, processes, trademarks, service marks,
inventions, designs, technologies, computer hardware or software, original works
of authorship, formulas, discoveries, patents, copyrights, copyrightable works,
products, marketing and business ideas, and all improvements, know-how, data,
rights, and claims related to the foregoing, whether or not patentable,
registrable or copyrightable, which the Employee may , on or after the Effective
Date, solely or jointly with others conceive or develop or reduce to practice,
or cause to be conceived or developed or reduced to practice, during the period
of time the Employee is in the employ of the Company (collectively referred to
as "Intellectual Property Items"); and the Employee further agrees that the
foregoing shall also apply to Intellectual Property Items which relate to the
business of the Company or to the Company's anticipated business as of the end
of the Employee's employment and which are conceived, developed, or reduced to
practice during a period of one year after the end of such employment. Without
limiting the foregoing, the Employee further acknowledges that all original
works of authorship which are made by the Employee (solely or jointly with
others) within the scope of the Employee's employment and which are protectable
by copyright are works made for hire as that term is defined in the United
States Copyright Act.
(c) Maintenance of Records. The Employee agrees to keep and maintain
adequate and current written records of all Intellectual Property Items made by
the Employee (solely or jointly with others) during the term of the Employee's
employment with the Company. The records will be in the form of notes, sketches,
drawings, and any other format that may be specified by the Company. The records
will be available to, and remain the sole property of, the Company at all times.
(d) Patent and Copyright Registrations. The Employee agrees to assist
the Company, or its designee, at the Company's expense, in every proper way to
secure the Company's rights in the Intellectual Property Items and any
copyrights, patents, mask work rights or other intellectual property rights
relating thereto in any and all countries, including the disclosure to the
Company of all pertinent information and data with respect thereto and the
execution of all applications, specifications, oaths, assignments and all other
instruments which the Company shall deem necessary in order to apply for and
obtain such rights and in order to assign and convey to the Company, its
successors, assigns and nominees the sole and exclusive rights, title and
interest in and to such Inventions, and any copyrights, patents, mask work
rights or other intellectual property rights relating thereto.
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(e) No Use of Name. The Employee shall not at any time use the
Company's name or any of the Company trademark(s) or trade name(s) in any
advertising or publicity without the prior written consent of the Company.
9. Return of Company Property. The Employee agrees that, at any time upon
request of the Company, and in any event at the time of leaving the employ of
the Company, Employee will deliver to the Company (and will not keep in the
Employee's possession or deliver to anyone else) any and all devices, records,
data, notes, reports, proposals, lists, correspondence, specifications,
drawings, blueprints, sketches, materials, equipment, other documents or
property, or reproductions of any of the aforementioned items, containing
Confidential Information or otherwise belonging to the Company, its successors
or assigns, whether prepared by the Employee or supplied to the Employee by the
Company.
10. Non-Solicitation. The Employee agrees that Employee shall not during
the Employee's employment or other involvement with the Company and for a period
of twelve (12) months immediately following the termination of the Employee's
employment with the Company for any reason, whether with or without cause, (i)
either directly or indirectly solicit or take away, or attempt to solicit or
take away employees of the Company, either for the Employee's own business or
for any other person or entity, or (ii) either directly or indirectly recruit,
solicit or otherwise induce or influence any proprietor, partner, stockholder,
lender, director, officer, employee, sales agent, joint venturer, investor,
lessor, supplier, customer, agent, representative or any other person which has
a business relationship with the Company to discontinue, reduce or modify such
employment, agency or business relationship with the Company.
11. Covenants Against Competition.
(a) Definitions. For the purposes of this Section:
(i) "Competing Product" means any product, process, or service
of any person or organization other than the Company, in existence or
under development (A) which is identical to, substantially the same as,
or an adequate substitute for any product, process, or service of the
Company, in existence or under development, based on any patent or
patent application (provisional or otherwise) naming Employee as
inventor thereunder and which Employee has assigned or licensed to the
Company, or other intellectual property of the Company about which the
Employee acquires Confidential Information, and (B) which is (or could
reasonably be anticipated to be) marketed or distributed in such a
manner and in such a geographic area as to actually compete with such
product, process or service of the Company.
(ii) "Competing Organization" means any person or
organization, including the Employee, engaged in, or about to become
engaged in, research on or the acquisition, development, production,
distribution, marketing, or providing of a Competing Product.
(b) Non-Competition. As a material inducement to the Company to employ
or continue the employment of the Employee, and in order to protect the
Company's Confidential Information and good will, the Employee agrees to the
following stipulations:
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(i) For a period of twelve (12) months after termination of
the Employee's employment with the Company or its affiliates for any
reason, whether with or without cause, the Employee will not directly
or indirectly solicit or divert or accept business relating in any
manner to Competing Products or to products, processes or services of
the Company, from any of the customers or accounts of the Company with
which the Employee had any contact as a result of the Employee's
employment.
(ii) For a period of six (6) months after termination of the
Employee's employment with the Company for any reason, whether with or
without cause, the Employee will not (A) render services directly or
indirectly, as an employee, consultant or otherwise, to any Competing
Organization in connection with research on or the acquisition,
development, production, distribution, marketing or providing of any
Competing Product, or (B) own any interest in any Competing
Organization.
(c) Modification of Restrictions. The Employee agrees that the
restrictions set forth in this Section are fair and reasonable and are
reasonably required for the protection of the interests of the Company. However,
should an arbitrator or court nonetheless determine at a later date that such
restrictions are unreasonable in light of the circumstances as they then exist,
then the Employee agrees that this Section shall be construed in such a manner
as to impose on the Employee such restrictions as may then be reasonable and
sufficient to assure Company of the intended benefits of this Section.
12. Publications. The Employee agrees that Employee will in advance of
publication provide the Company with copies of all writings and materials which
Employee proposes to publish during the term of the Employee's employment and
for two years thereafter. The Employee also agrees that Employee will, at the
Company's request, cause to be deleted from such writings and materials any
information disclosing Confidential Information. The Company's good faith
judgment in these matters will be final. At the Company's sole discretion, the
Employee will also, at the Company's request, cause to be deleted any reference
whatsoever to the Company from such writings and materials.
13. Equitable Remedies. The Employee agrees that it would be impossible or
inadequate to measure and calculate the Company's damages from any breach of the
covenants set forth in Sections 7, 8, 9, 10 and 11 herein. Accordingly, at the
sole discretion of the Company, the Employee agrees that if Employee breaches
any of such Sections, the Company will have, in addition to any other right or
remedy available, the right to obtain an injunction from a court of competent
jurisdiction restraining such breach or threatened breach and to specific
performance of any such provision of this Agreement and, if it prevails in such
a proceeding, the right to recover from the Employee the costs and expenses
thereof, including reasonable attorneys' fees.
14. Representations and Warranties of Employee. The Employee represents and
warrants as follows: (i) that the Employee has no obligations, legal or
otherwise, inconsistent with the terms of this Agreement or with the Employee's
undertaking a relationship with the Company; and (ii) that Employee has not
entered into, nor will Employee enter into, any agreement (whether oral or
written) in conflict with this Agreement.
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15. Miscellaneous.
(a) Entire Agreement. This Agreement contains the entire understanding
of the parties with respect to the subject matter. It may not be changed orally
but only by an agreement in writing signed by the party against whom enforcement
of any waiver, change, modification, extension or discharge is sought.
(b) No Waiver. The failure of either party to insist on strict
compliance with the terms of this agreement in any instance or instances will
not be deemed a waiver of any such term of this Agreement or of that party's
right to require strict compliance with the terms of this Agreement in any other
instance.
(c) Successors and Assigns. This Agreement shall be binding on and
inure to the benefit of the successors in interest of the parties, including, in
the case of the Employee, the Employee's heirs, executors and estate. The
Employee may not assign the Employee's obligations under this Agreement. The
Company may not assign its obligations under this Agreement, except with the
prior written consent of the Employee.
(d) Notices. Any notices or other communications provided for hereunder
may be made by telecopier, first class mail or express courier services provided
that the same are addressed to the party required to be notified at its address
first written above, or such other address as may hereafter be established for
notices, and any notices or other communications sent by first class mail shall
be considered to have been made when posted. The parties telecopier numbers are
as follows: Company - (000) 000-0000; Employee - (____) ____ - ______.
(e) Severability. If any term or condition of this Agreement shall be
invalid or unenforceable to any extent or in any application, then the remainder
of this Agreement, and such term or condition except to such extent or in such
application, shall not be affected thereby, and each and every term and
condition of this Agreement shall be valid and enforceable to the fullest extent
and in the broadest application permitted by law.
(f) Captions; Gender Captions of sections herein are for convenience
only and are not intended to cover all matters therein. Any pronoun or other
gender-linked term shall in each case refer, as applicable, to the masculine,
feminine or neuter. Any defined term shall include it singular or plural form or
other part of speech.
(g) Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of The Commonwealth of Massachusetts without giving
effect to its principles on conflict of laws.
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the date and year first above written.
PRO-PHARMACEUTICALS, INC.
By:
--------------------------------
Name: Xxxxx Xxxxx
Title: Chief Executive Officer
By:
--------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President,
Investor Relations
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Exhibit A
List of Prior Inventions
and Original Works of Authorship
--------------------------------
Identifying
Number or
Title Date Brief Description
----- ---- -----------------
Name of
Employee: ____________________________________________
Xxxxxxx X. Xxxxxxxx
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