Employment Agreement - Aastrom Biosciences Inc. and Alan K. Smith
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of 26 October
1995, by and between AASTROM BIOSCIENCES, INC., a Michigan corporation
("Employer") and ALAN K. SMITH ("Employee").
NOW, THEREFORE, the parties agree as follows:
1. EMPLOYMENT Employer hereby engages Employee, and Employee hereby
accepts such engagement, upon the terms and conditions set forth herein.
2. DUTIES Employee is engaged as a Vice President Research. Employee
shall perform faithfully and diligently the duties customarily performed by
persons in the position for which employee is engaged, together with such other
reasonable and appropriate duties as Employer shall designate from time to time.
Employee shall devote Employee's full business time and efforts to the rendition
of such services and to the performance of such duties. As a full-time employee
of Employer, Employee shall not be entitled to provide consulting services or
other business or scientific services to any other party, without the prior
written consent of Employer.
3. COMPENSATION
3.1 BASE SALARY During the term of this Agreement, as compensation
for the proper and satisfactory performance of all duties to be performed by
Employee hereunder, Employer shall pay Employee at an annual salary rate of One
Hundred Twenty Two Thousand Five Hundred Dollars ($122,500), payable in arrears
in equal bi-weekly installments, less required deductions for state and federal
withholding tax, Social Security and all other employee taxes and payroll
deductions. The base salary shall be subject to review and adjustment on an
annual basis.
4. TERM
4.1 COMMENCEMENT The employment relationship pursuant to this
Agreement shall commence November 13, 1995.
4.2 TERMINATION AT WILL Although Employer and Employee anticipate a
long and mutually rewarding employment relationship, either party may terminate
this Agreement, without cause, upon fourteen (14) days' prior written notice
delivered to the other. It is expressly understood and agreed that the
employment relationship is "at will", and with no agreement for employment for
any specified term, and with no agreement for employment for so long as Employee
performs satisfactorily. Provided, however, before Employer exercises this
right of termination at will, Employer shall first either (i) discuss with
Employee the needs of Employer and why Employee no longer meets those needs, or
(ii) discuss with Employee any concerns or dissatisfactions which
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Employer has with Employee's performance, and give to Employee a reasonable
opportunity to remedy those concerns or dissatisfactions, to the reasonable
satisfaction of Employer. Should, for some reason, Employee's involuntary
termination without cause be necessary, severance compensation equal to four (4)
months' salary will be paid, along with compensation for any accumulated
vacation time.
4.3 TERMINATION FOR CAUSE Either party may terminate this employment
relationship immediately upon notice to the other party in the event of any good
cause, such as a default, dishonesty, neglect of duties, failure to perform by
the other party, or death or disability of Employee.
4.4 PAYMENT OF COMPENSATION UPON TERMINATION Upon termination for
cause, Employee shall be entitled to the compensation set forth as "base salary"
herein, prorated to the effective date of such termination as full compensation
for any and all claims of Employee under this Agreement.
5. FRINGE BENEFITS
5.1 CUSTOMARY FRINGE BENEFITS Employee shall be entitled to such
fringe benefits as Employer customarily makes available to employees of Employer
engaged in the same or similar position as Employee ("Fringe Benefits"). Such
Fringe Benefits may include vacation leave, sick leave, and health insurance
coverage. Employer reserves the right to change the Fringe Benefits on a
prospective basis, at any time, effective upon delivery of written notice to
Employee.
5.2 ACCUMULATION Employee shall not earn and accumulate unused
vacation in excess of Fifteen (15) days. Employee shall not earn and accumulate
sick leave or other Fringe Benefits in excess of an unused amount equal to twice
the amount earned for one year. Further, Employee shall not be entitled to
receive payments in lieu of said Fringe Benefits, other than for unused vacation
leave earned and accumulated at the time the employment relationship terminates.
6. INVENTIONS, TRADE SECRETS AND CONFIDENTIALITY
6.1 DEFINITIONS
6.1.1 Invention Defined. As used herein "Invention" means
inventions, discoveries, concepts, and ideas, whether patentable or
copyrightable or not, including but not limited to processes, methods, formulas,
techniques, materials, devices, designs, programs (including computer programs),
computer graphics, apparatus, products, as well as improvements thereof or know-
how related thereto, relating to any present or anticipated business or
activities of Employer.
6.1.2 Trade Secret Defined. As used herein "Trade Secret" means,
without limitation, any document or information relating to Employer's
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products, processes or services, including documents and information relating to
Inventions, and to the research, development, engineering or manufacture of
Inventions, and to Employer's purchasing, customer or supplier lists, which
documents or information have been disclosed to Employee or known to Employee as
a consequence of or through Employee's employment by Employer (including
documents, information or Inventions conceived, originated, discovered or
developed by Employee), which is not generally known in the relevant trade or
industry.
6.2 INVENTIONS
6.2.1 Disclosure. Employee shall disclose promptly to Employer
each Invention, whether or not reduced to practice, which is conceived or
learned by Employee (either alone or jointly with others) during the term of his
employment with Employer. Employee shall disclose in confidence to Employer all
patent applications filed by or on behalf of Employee during the term of his
employment and for a period of three (3) years thereafter. Any disclosure of an
Invention, or any patent application, made within one (1) year after termination
of employment shall be presumed to relate to an Invention made during Employee's
term of Employment with Employer, unless Employee clearly proves otherwise .
6.2.2 Employer Property; Assignment. Employee acknowledges and
agrees that all Inventions which are discovered, conceived, developed, made,
produced or prepared by Employee (alone or in conjunction with others) during
the duration of Employee's employment with Employer shall be the sole property
of Employer. Said property rights of Employer include without limitation all
domestic and foreign patent rights, rights of registration or other protection
under the patent and copyright laws, and all other rights pertaining to the
Inventions. Employee further agrees that all services, products and Inventions
that directly or indirectly result from engagement with Company shall be deemed
"works for hire" as that term is defined in Title 17 of the United States Codes,
and accordingly all rights associated therewith shall vest in the Company.
Notwithstanding the foregoing, Employee hereby assigns to Employer all of
Employee's right, title and interest in any such services, products and
Inventions, in the event any such services, products and Inventions shall be
determined not to constitute "works for hire."
6.2.3 Exclusion Notice. The Assignment by Employee of Inventions
under this Agreement does not apply to any Inventions which are owned or
controlled by Employee prior to the commencement of employment of Employee by
Employer (all of which are set forth on Exhibit "A" hereto). Additionally,
Employee is not required to assign an idea or invention where the invention or
idea meets all of the following criteria; namely if the invention or idea: (i)
was created or conceived without the use of any of Employer's equipment,
supplies, facilities, or trade secret information, and (ii) was developed
entirely on Employee's own time, and (iii) does not relate to the business of
Employer, and (iv) does not relate to Employer's actual or demonstrably
anticipated research or development, and (v) does not result from any work
performed by Employee for Employer.
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6.2.4 Patents and Copyrights; Attorney-in-Fact. Both before and
after termination of this Agreement (and with reasonable compensation paid by
Employer to Employee after termination), Employee agrees to assist the Employer
to apply for, obtain and enforce patents on, and to apply for, obtain and
enforce copyright protection and registration of, the Inventions described in
Section 6.2.2 in any and all countries. To that end, Employee shall (at
Employer's request) without limitation, testify in any proceeding, and execute
any documents and assignments determined to be necessary or convenient for use
in applying for, obtaining, registering and enforcing patent or copyright
protection involving any of the Inventions. Employee hereby irrevocably appoints
Employer, and its duly authorized officers and agents, as Employee's agent and
attorney-in-fact, to act for and in behalf of Employee in filing all patent
applications, applications for copyright protection and registration,
amendments, renewals, and all other appropriate documents in any way related to
the Inventions described in Section 6.2.2.
6.3 TRADE SECRETS
6.3.1 Acknowledgment of Proprietary Interest. Employee
recognizes the proprietary interest of Employer in any Trade Secrets of
Employer. Employee acknowledges and agrees that any and all Trade Secrets of
Employer, whether developed by Employee alone or in conjunction with others or
otherwise, shall be and are the property of Employer.
6.3.2 Covenant Not to Divulge Trade Secrets. Employee
acknowledges and agrees that Employer is entitled to prevent the disclosure of
Trade Secrets of Employer. As a portion of the consideration for the employment
of Employee and for the compensation being paid to Employee by Employer,
Employee agrees at all times during the term of the employment by Employer and
thereafter to hold in strictest confidence, and not to use, disclose or allow to
be disclosed to any person, firm, or corporation, Trade Secrets of Employer,
including Trade Secrets developed by Employee, other than disclosures to persons
engaged by Employer to further the business of Employer, and other than use in
the pursuit of the business of Employer.
6.3.3 Confidential Information of Others. Employee represents
and warrants that if Employee has any confidential information belonging to
others, Employee will not use or disclose to Employer any such information or
documents. Employee represents that his employment with Employer will not
require him to violate any obligation to or confidence with any other party.
6.4 NO ADVERSE USE Employee will not at any time use Employer's Trade
Secrets or Inventions in any manner which may directly or indirectly have an
adverse effect upon Employer's business, nor will Employee perform any acts
which would tend to reduce Employer's proprietary value in Employer's Trade
Secrets or Inventions.
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6.5 RETURN OF MATERIALS AT TERMINATION In the event of any
termination of Employee's employment, Employee will promptly deliver to Employer
all materials, property, documents, data, and other information belonging to
Employer or pertaining to Trade Secrets or Inventions. Employee shall not take
any materials, property, documents or other information, or any reproduction or
excerpt thereof, belonging to Employer or containing or pertaining to any Trade
Secrets or Inventions.
6.6 REMEDIES UPON BREACH In the event of any breach by Employee of
the provision in this Section 6, Employer shall be entitled, if it so elects, to
institute and prosecute proceedings in any court of competent jurisdiction,
either in law or in equity, to enjoin Employee from violating any of the terms
of this Section 6, to enforce the specific performance by Employee of any of the
terms of this Section 6, and to obtain damages for any of them, but nothing
herein contained shall be construed to prevent such remedy or combination of
remedies as Employer may elect to invoke. The failure of Employer to promptly
institute legal action upon any breach of this Section 6 shall not constitute a
waiver of that or any other breach hereof.
7. COVENANT NOT TO COMPETE Employee agrees that, during Employee's
employment, Employee will not directly or indirectly compete with Employer in
any way, and that Employee will not act as an officer, director, employee,
consultant, shareholder, lender or agent of any other entity which is engaged in
any business of the same nature as, or in competition with, the business in
which Employer is now engaged, or in which Employer becomes engaged during the
term of Employee's employment, or which is involved in science or technology
which is similar to Employer's science or technology.
8. GENERAL PROVISIONS
8.1 ATTORNEYS' FEES In the event of any dispute or breach arising
with respect to this Agreement, the party prevailing in any negotiations or
proceedings for the resolution or enforcement thereof shall be entitled to
recover from the losing party reasonable expenses, attorneys' fees and costs
incurred therein.
8.2 AMENDMENTS No amendment or modification of the terms or
conditions of this Agreement shall be valid unless in writing and signed by both
parties hereto. There shall be no implied-in-fact contracts modifying the terms
of this Agreement.
8.3 ENTIRE AGREEMENT This Agreement constitutes the entire
agreement between the parties with respect to the employment of Employee. This
Agreement supersedes all prior agreements, understandings, negotiations and
representation with respect to the employment relationship.
8.4 SUCCESSORS AND ASSIGNS The Rights and obligations of Employer
under this Agreement shall inure to the benefit of and shall be
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binding upon the successors and assigns of Employer. Employee shall not be
entitled to assign any of Employee's rights or obligations under this Agreement.
8.5 WAIVER Either party's failure to enforce any provision of this
Agreement shall not in any way be construed as a waiver of any such provision,
or prevent that party thereafter from enforcing each and every other provision
of this Agreement.
8.6 SEVERABLE PROVISIONS The provisions of this Agreement are
severable, and if any or more provisions may be determined to be judicially
unenforceable, in whole or in part, the remaining provisions shall nevertheless
be binding and enforceable.
9. EMPLOYEE'S REPRESENTATIONS Employee represents and warrants that
Employee (i) is free to enter into this Agreement and to perform each of the
terms and covenants contained herein, (ii) is not restricted or prohibited,
contractually or otherwise, from entering into and performing this Agreement,
and (iii) will not be in violation or breach of any other agreement by reason of
Employee's execution and performance of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
set forth above.
EMPLOYER:
Aastrom Biosciences, Inc.
By: /s/ R. DOUGLAS ARMSTRONG
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R. Douglas Armstrong, Ph.D.
President and CEO
EMPLOYEE:
/s/ ALAN K. SMITH 10/26/95
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Alan K. Smith
Address: 6964 Corte Antonio
Pleasanton, CA 94566
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Exhibit A
List of Prior Inventions
(Section 6.2.3)
None, other than the following:
See Attached list.
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In addition, have two potential applications pending:
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(1) Implantation of microcarrier bound packaging cell lines capable of
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performing in situ gene therapy.
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(2) Identification and use of a specific T-cell subset to facilitate allogeneic
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bone marrow transplantation.
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PATENTS:
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Kabori, Deans, Al-Abdaly, Smith, Guillermo, Angal, "Methods for Identification
of Peptides for Release of Selected Cells" (patent pending, submitted 1994)
AL-Abdaly, Guillermo and Smith, "Positive Selection of Human CD34+ Cells Using
Cell Specific Antibody-Desthiobiotin Conjugate/Anti-biotin Antibody Coated
Paramagnetic Beads" (patent pending, submitted 1993)
Y. A. Chang, A. Gee, A. Smith, W. Lake, "Activation of Hydroxyl Groups of
Polymeric Carriers Using 4-Fluorobenzenesulfonyl Chloride", European Patent
#91915059.9- (Issued 1992).
A. K. Smith, "Iron supplementation of Calf Serum" U. S. Patent (Issued 1987)
Jarrett, McCain, Vickers and Smith, "Development of a Biocompatible Polymer
Using Methyl Acrylamidoglycolate Methyl Ether"
Hardwick, Smith, Lake and Chenoweth, U. S. Patent for "Method and Useful
Apparatus for Preparing Pharmaceutical Compositions" (Issued 1991)