Employment Agreement - Aastrom Biosciences Inc. and Alan M. Wright
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of July 22, 2002,
by and between Aastrom Biosciences, Inc., a Michigan corporation ("Employer")
and Alan M. Wright ("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 Senior Vice President
Administrative & Financial Operations. 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 $200,000 payable in semi-monthly 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 on or before Wednesday, August 7, 2002.
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 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.
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.
1
<PAGE>
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. INVENTION, 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 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."
2
<PAGE>
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.
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.
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.
3
<PAGE>
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 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.
8.7 EMPLOYMENT ELIGIBILITY During the term of this
Agreement, Employee shall maintain citizenship in the United States or
documentation to establish employment eligibility in compliance with the Federal
Immigration Reform and Control Act of 1986.
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.
4
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth above.
EMPLOYER:
Aastrom Biosciences, Inc.
/s/ R. Douglas Armstrong
By: ______________________________________
R. Douglas Armstrong, Ph.D.
President and Chief Executive Officer
EMPLOYEE:
/s/ Alan M. Wright
_________________________________________
Alan M. Wright
Address: 3735 Tangelwood Court
Ann Arbor, MI 48105
5
<PAGE>
EXHIBIT A
List of Prior Inventions
(Section 6.2.3)
None, other than the following:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
6