Employee Confidentiality, Invention Assignment and Non-Compete Agreement - deCODE genetics Inc. and Lance Thibault
EMPLOYEE
CONFIDENTIALITY, INVENTION ASSIGNMENT
AND NON-COMPETE AGREEMENT
THIS EMPLOYEE CONFIDENTIALITY, INVENTION ASSIGNMENT AND
NON-COMPETE AGREEMENT ("Agreement") is made as of 1 February 2001 , between
deCODE genetics, Inc. (the "Company"), and Lance Thibault ("Employee").
In consideration of the Employee's employment or continued employment by
the Company, with the intention that this Agreement shall apply to the entire
period of Employee's employment with the Company (including the period prior to
the date of this Agreement), the Employee hereby agrees as follows:
1. CONFIDENTIAL INFORMATION DEFINED. "Confidential Information" means trade
secrets, proprietary information, and confidential knowledge and information
which includes, but is not limited to, matters of a technical nature (such as
discoveries, ideas, concepts, designs, drawings, specifications, techniques,
models, diagrams, test data, scientific methods and know-how), and matters of a
business nature (such as the identity of customers and prospective customers,
the nature of work being done for or discussed with customers or prospective
customers, suppliers, marketing techniques and materials, marketing and
development plans, pricing or pricing policies, financial information, plans for
further development, and any other information of a similar nature not available
to the public).
2. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF THE COMPANY. Employee
acknowledges that, during the period of Employee's employment with the Company,
Employee has had or will have access to Confidential Information of the Company.
Therefore, Employee agrees that both during and after the period of Employee's
employment with the Company, Employee shall not, without the prior written
approval of the Company, directly or indirectly (a) reveal, report, publish,
disclose or transfer any Confidential Information the Company to any person or
entity, or (b) use any Confidential Information of the Company for any purpose
or for the benefit of any person or entity, except as may be necessary in the
performance of Employee's work for the Company.
3. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF OTHERS. Employee
acknowledges that, during the period of Employee's employment with the Company,
Employee may have had or will have access to Confidential Information of third
parties who have given the Company the right to use such Confidential
Information, subject to a non-disclosure agreement between the Company and such
third party. Therefore, Employee agrees that both during and after the period of
Employee's employment with the Company, Employee shall not, without the prior
written approval of the Company, directly or indirectly (a) reveal, report,
publish, disclose or transfer any Confidential Information of such third parties
to any person or entity, or (b) use any Confidential Information of such third
parties for any purpose or for the benefit of any person or entity, except as
may be necessary in the performance of Employee's work for the Company.
5. PROPERTY OF THE COMPANY. Employee acknowledges and agrees that all
Confidential Information of the Company and all reports, drawings,
blueprints, data, notes, and other documents and records, whether
printed, typed, handwritten, videotaped, transmitted or transcribed on
data files or on any other type of media, made or compiled by Employee,
or made available to Employee, during the period of Employee's
employment with the Company (including the period prior to the date of
this Agreement) concerning the Company's Confidential Information are
and shall remain the Company's property and shall be delivered to the
Company within five (5) business days after the termination of such
employment with the Company or at any earlier time on request of the
Company. Employee shall not retain copies of such Confidential
Information, documents and records.
5. PROPRIETARY NOTICES. Employee shall not, and shall not permit any other
person to, remove any proprietary or other legends or restrictive notices
contained in or included in any Confidential Information.
6. INVENTIONS.
<PAGE> 2
(E) EMPLOYEE SHALL PROMPTLY, FROM TIME TO TIME, FULLY INFORM AND
DISCLOSE TO THE COMPANY IN WRITING ALL INVENTIONS, COPYRIGHTABLE MATERIAL,
DESIGNS, IMPROVEMENTS AND DISCOVERIES OF ANY KIND WHICH EMPLOYEE NOW HAS MADE,
CONCEIVED OR DEVELOPED (INCLUDING PRIOR TO THE DATE OF THIS AGREEMENT), OR WHICH
EMPLOYEE MAY LATER MAKE, CONCEIVE OR DEVELOP, DURING THE PERIOD OF EMPLOYEE'S
EMPLOYMENT WITH THE COMPANY, WHICH PERTAIN TO OR RELATE TO THE COMPANY'S
BUSINESS OR ANY OF THE WORK OR BUSINESSES CARRIED ON BY THE COMPANY
("INVENTIONS"). THIS COVENANT APPLIES TO ALL SUCH INVENTIONS, WHETHER OR NOT
THEY ARE ELIGIBLE FOR PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET OR OTHER LEGAL
PROTECTION; AND WHETHER OR NOT THEY ARE CONCEIVED AND/OR DEVELOPED BY EMPLOYEE
ALONE OR WITH OTHERS; AND WHETHER OR NOT THEY ARE CONCEIVED AND/OR DEVELOPED
DURING REGULAR WORKING HOURS; AND WHETHER OR NOT THEY ARE CONCEIVED AND/OR
DEVELOPED AT THE COMPANY'S FACILITY OR NOT.
(F) ALL INVENTIONS SHALL BE THE SOLE AND EXCLUSIVE PROPERTY OF THE
COMPANY, AND SHALL BE DEEMED PART OF THE CONFIDENTIAL INFORMATION OF THE COMPANY
FOR PURPOSES OF THIS AGREEMENT, WHETHER OR NOT FIXED IN A TANGIBLE MEDIUM OF
EXPRESSION. EMPLOYEE HEREBY ASSIGNS ALL EMPLOYEE'S RIGHTS IN ALL INVENTIONS AND
IN ALL RELATED PATENTS, COPYRIGHTS AND TRADEMARKS, TRADE SECRETS AND OTHER
PROPRIETARY RIGHTS THEREIN TO THE COMPANY. WITHOUT LIMITING THE FOREGOING,
EMPLOYEE AGREES THAT ANY COPYRIGHTABLE MATERIAL SHALL BE DEEMED TO BE "WORKS
MADE FOR HIRE" AND THAT THE COMPANY SHALL BE DEEMED THE AUTHOR OF SUCH WORKS
UNDER THE UNITED STATES COPYRIGHT ACT, PROVIDED THAT IN THE EVENT AND TO THE
EXTENT SUCH WORKS ARE DETERMINED NOT TO CONSTITUTE "WORKS MADE FOR HIRE",
EMPLOYEE HEREBY IRREVOCABLY ASSIGNS AND TRANSFERS TO THE COMPANY ALL RIGHT,
TITLE AND INTEREST IN SUCH WORKS.
(G) EMPLOYEE SHALL ASSIST AND COOPERATE WITH THE COMPANY, BOTH DURING
AND AFTER THE PERIOD OF EMPLOYEE'S EMPLOYMENT WITH THE COMPANY, AT THE COMPANY'S
SOLE EXPENSE, TO ALLOW THE COMPANY TO OBTAIN, MAINTAIN AND ENFORCE PATENT,
COPYRIGHT, TRADEMARK, TRADE SECRET AND OTHER LEGAL PROTECTION FOR THE
INVENTIONS. EMPLOYEE SHALL SIGN SUCH DOCUMENTS, AND DO SUCH THINGS NECESSARY, TO
OBTAIN SUCH PROTECTION AND TO VEST THE COMPANY WITH FULL AND EXCLUSIVE TITLE IN
ALL INVENTIONS AGAINST INFRINGEMENT BY OTHERS. EMPLOYEE HEREBY APPOINTS THE
SECRETARY OF THE COMPANY AS EMPLOYEE'S ATTORNEY-IN-FACT TO EXECUTE DOCUMENTS ON
EMPLOYEE'S BEHALF FOR THIS PURPOSE.
(H) EMPLOYEE SHALL NOT BE ENTITLED TO ANY ADDITIONAL COMPENSATION FOR
ANY AND ALL INVENTIONS MADE DURING THE PERIOD OF EMPLOYEE'S EMPLOYMENT WITH THE
COMPANY.
7. COVENANT NOT TO COMPETE. Employee and the Company agree that the
services rendered by the Employee are unique and irreplaceable, and that
competitive use and knowledge of any Confidential Information would
substantially and irreparably injure the Company's business, prospects and good
will. Employee and the Company also agree that the Company's business is global
in nature due to the type of products and/or services being provided. Therefore,
Employee agrees that during the period of Employee's employment with the Company
and for a period of two (2) years thereafter, Employee shall not, directly or
indirectly, through any other person, firm, corporation or other entity (whether
as an officer, director, employee, partner, consultant, holder of equity or debt
investment, lender or in any other manner or capacity):
(e) sell, market, offer to sell products and/or services anywhere in
the world similar to that being developed, offered or sold by the Company on the
date of the termination of Employee's employment with the Company for any reason
;
(f) solicit, induce, encourage or attempt to induce or encourage any
employee or consultant of the Company to terminate his or her employment or
consulting relationship with the Company, or to breach any other obligation to
the Company;
(g) solicit, interfere with, disrupt, alter or attempt to disrupt or
alter the relationship, contractual or otherwise, between the Company and any
other person including, without limitation, any consultant, contractor,
customer, potential customer, or supplier of the Company; or
(h) engage in or participate in any business conducted under any
name that shall be the same as or similar to the name of the Company or any
trade name used by the Company.
Employee acknowledges that the foregoing geographic, activity and time
limitations contained in this Section 7 are reasonable and properly required for
the adequate
<PAGE> 3
protection of the Company's business. In the event that any such geographic,
activity or time limitation is deemed to be unreasonable by a court, Employee
shall submit to the reduction of either said activity or time limitation to such
activity or period as the court shall deem reasonable. In the event that
Employee is in violation of the aforementioned restrictive covenants, then the
time limitation thereof shall be extended for a period of time equal to the
pendency of such proceedings, including appeals.
8. REPRESENTATIONS. Employee represents that Employee has the right to
enter into this Agreement, and that Employee's performance of all the terms of
this Agreement and his duties as an employee of the Company will not breach any
confidential information agreement, non-competition agreement or other agreement
with any former employer of his services, either as an employee, consultant,
contractor or independent contractor, or with any other party. Employee
represents that Employee will not disclose to the Company any trade secrets or
confidential or proprietary information of any third party that are not
generally available to the public.
9. DISCLOSURE OF THIS AGREEMENT. Employee hereby authorizes the Company to
notify others, including but not limited to customers of the Company and any of
Employee's future employers, of the terms of this Agreement and Employee's
responsibilities under this Agreement.
10. SPECIFIC PERFORMANCE. Employee acknowledges that money damages alone
would not adequately compensate the Company in the event of a breach or
threatened breach by Employee of this Agreement, and that, in addition to all
other remedies available to the Company at law or in equity, the Company shall
be entitled to injunctive relief for the enforcement of its rights and to an
accounting of profits made during the period of such breach.
11. NO RIGHTS GRANTED. Employee understands that nothing in this Agreement
shall be deemed to constitute, by implication or otherwise, the grant by the
Company to the employee of any license or other right under any patent, patent
application or other intellectual property right or interest belonging to the
Company.
12. SEVERABILITY.
(c) Each of the covenants provided in this Agreement are separate
and independent covenants. If any provision of this Agreement shall be
determined to be invalid or unenforceable, the remainder of this Agreement shall
not be affected thereby and any such invalid or unenforceable provision shall be
reformed so as to be valid and enforceable to the fullest extent permitted by
law.
(d) It is not a defense to the enforcement of any provision of this
Agreement that the Company has breached or failed to perform any obligation or
covenant hereunder or under any other agreement or understanding between
Employee and the Company.
13. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to conflict of
law rules.
14. SUPERSEDES OTHER AGREEMENTS. This Agreement contains the entire
agreement of the parties with respect to subject matter hereof and supersedes
all previous agreements and understandings between the parties with respect to
its subject matter.
15. AMENDMENTS. This Agreement may not be changed, modified, released,
discharged, abandoned or otherwise terminated in whole or in part except by an
instrument in writing, agreed to and signed by the Employee and a duly
authorized officer of the Company.
16. ACKNOWLEDGEMENTS. THE EMPLOYEE ACKNOWLEDGES THAT (i) THE EMPLOYEE HAS
READ AND FULLY UNDERSTANDS THIS AGREEMENT; (ii) THE EMPLOYEE HAS BEEN GIVEN THE
OPPORTUNITY TO ASK QUESTIONS; (iii) THE EMPLOYEE HAS RECEIVED A COPY OF THIS
AGREEMENT, THE ORIGINAL OF WHICH WILL BE RETAINED IN THE EMPLOYEE'S PERSONNEL
FILE; AND (iv) THE EMPLOYEE'S OBLIGATIONS UNDER THIS AGREEMENT SURVIVE THE
TERMINATION OF THE EMPLOYEE'S EMPLOYMENT WITH THE COMPANY FOR ANY REASON.
* * *
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
<PAGE> 4
deCODE genetics, Inc.
By: Kari Stefansson /sign
Name: Kari Stefansson
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Title: President and CEO
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Signed on: 20 June 2001
WITNESS OR ATTEST: EMPLOYEE: Lance Thibault
Lance Thibault / sign
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(Signature)
Address: 105 Hyott Avenue,
Bradford, MA 01835
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<PAGE> 5
[deCODE GENETICS LOGO]
Lynghalsi 1
IS-110 Reykjavik
ICELAND
Phone: (354) 570-1900
Fax: (354) 570-1981
E-mail: info@decode.is
Web Page: www.decode.com
As of 21 Jan. 2001
PERSONAL AND CONFIDENTIAL
OFFER LETTER - AS AMENDED
-SUBSTITUTES THE OFFER MADE BY AXEL NIELSEN ON THE SAME DATE
Mr. Lance Thibault
Dear Lance,
Following our recent discussions, it gives us great pleasure to offer you a
position with our company. Your primary role will be to supervise the accounting
team of the company. (See description in a special memo sent). The arrangement
would begin on or around 1 February 2001. As we have discussed, in exchange for
your services you will receive the following compensation:
- Base salary at an annual rate of $120,000 payable as per your
instructions at the last day of each month.
- Stock options of 75,000 shares vested according to deCODE's
standard vesting schedule of the Stock Option plan - which is
four years vesting - and having an exercise price of $9.00 per
share or the fair market value on the date of grant, whichever
is lower.
- 5,000 fully vested options as a sign-on bonus having an exercise
price of $9.00 per share or the fair market value on the date of
grant, whichever is lower.
- Bonuses similar to what management is receiving, typically 25%
of a base annual salary.
- Other things paid for by deCODE include:
- Parking in Harvard Square and reimbursement for commute
at the standard amount per mile for US taxation
purposes.
- All travel expenses including, but not limited to,
transportation to and from Logan airport, transportation
to and from Keflavik airport, business class flights,
hotel and meals whilst in Reykjavik (or Reykjavik
apartment), and transportation whilst in Reykjavik.
- Participation in setting up a "home office" including,
but not limited to, US mobile phone, printer, fax
machine, RAM, hard drive, fast internet connection,
telephone and supplies.
- Compensation benefits as customary in the US/Boston
including, but not limited to, health, dental, life AD&D
and disability insurance, and pension/401K.
- Other benefits similar to that of deCODE management including,
but not limited to, deCODE will provide you with 24 paid
vacation days per year, in addition to US Federal holidays per
year, reimbursement for professional licenses and fees,
necessary technology and training, and at least 5 days per year
for continuing professional education.
Sincerely,
deCODE genetics, Inc.
Kari Stefansson / sign
Signed by: Kari Stefansson
Title: President and CEO
<PAGE> 6
If you agree with the terms offered and decide to accept our offer, please sign
below. Please also add in information about your bank details. We will
subsequently ask you to sign a Employee, Confidentiality, Invention Assignment
and non-Compete Agreement and a separate stock option agreement.
Date: 6/20/01
/s/ Lance Thibault
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Lance Thibault
Address:
105 Hyatt Ave.
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Bradford, MA 01835
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Bank details:
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