EMPLOYMENT AGREEMENT
This Employment Agreement is entered into as of January 19, 1998, between Charles E. Bergeron ("Employee") and Epitope, Inc., an Oregon corporation (the "Company").
1. SERVICES.
1.1 EMPLOYMENT. The Company agrees to employ Employee as Chief Financial Officer of the Company. Employee hereby accepts such employment in accordance with the terms and conditions of this Agreement. Employment shall continue until terminated pursuant to the terms of this Agreement.
1.2 DUTIES. Employee shall have the position named in Section 1.1 with such powers and duties appropriate to that office as may be provided by the bylaws of the Company and as determined from time to time by the President and Chief Executive Officer or the board of directors of the Company. Subject to the provisions of Section 7.4, Employee's position and duties may be changed from time to time during the term of this Agreement, and Employee's place of work may be relocated at the sole discretion of the President and Chief Executive Officer or the board of directors.
1.3 OUTSIDE ACTIVITIES. Employee shall obtain the consent of the President and Chief Executive Officer or the board of directors before he engages, either directly or indirectly, in any other professional or business activities that may require an appreciable portion of Employee's time or effort to the detriment of the Company's business. Such consent will not be unreasonably withheld.
1.4 DIRECTION OF SERVICES. Employee shall at all times discharge his duties in consultation with and under the supervision and direction of the President and Chief Executive Officer or the board of directors of the Company.
2. COMPENSATION AND EXPENSES.
2.1 SALARY. As compensation for services under this Agreement, the Company shall pay to Employee a regular salary established by the President and Chief Executive Officer or the board of directors. Such salary may be adjusted from time to time in the discretion of the President and Chief Executive Officer or the board of directors. Payment shall be made on a bi-weekly basis, less all amounts required by law or authorized by Employee to be withheld or deducted, at such times as shall be determined by the Company.
2.2 ADDITIONAL EMPLOYEE BENEFITS. To the extent otherwise eligible, Employee shall also be entitled to receive or participate in any additional benefits, including without limitation insurance programs, profit sharing or
Pension Plans and medical reimbursement plans, which may from time to time be made available by the Company to
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corporate officers. The Company may change or discontinue such benefits at any time in its sole discretion.
2.3 EXPENSES. The Company shall reimburse Employee for all reasonable and necessary expenses incurred in carrying out his duties under this Agreement. Employee shall present to the Company from time to time an itemized account of such expenses in such form as may be required by the Company.
2.4 FEES. All compensation earned by Employee, other than pursuant to this Agreement, as a result of services performed on behalf of the Company or as a result of or arising out of any work done by Employee in any way related to the scientific or business activities of the Company shall belong to the Company. Employee shall pay or deliver such compensation to the Company promptly upon receipt. For the purposes of this provision, "compensation" shall include, but is not limited to, all professional and nonprofessional fees, lecture fees, expert testimony fees, publishing fees, royalties, and any related income, earnings, or other things of value; and "scientific or business activities of the Company" shall include, but not be limited to, any project or projects in which the Company is involved and any subject matter that is directly or indirectly researched, tested, developed, promoted, or marketed by the Company.
3. STOCK OPTIONS. The Company has granted Employee an option to purchase 30,000 shares of common stock of the Company at an exercise price equal to the fair market value of the stock on the date of grant.
4. CONFIDENTIAL INFORMATION.
4.1 DEFINED. "Confidential Information" is all nonpublic information relating to the Company or its business that is disclosed to Employee, that Employee produces, or that Employee otherwise obtains during employment. "Confidential Information" also includes information received from third parties that the Company has agreed to treat as confidential. Examples of Confidential Information are:
4.1.1 Marketing plans.
4.1.2 Customer lists.
4.1.3 Product design and manufacturing information.
4.1.4 Financial information.
4.2 ACCESS TO INFORMATION. Employee acknowledges that in the course of his employment he will have access to Confidential Information, that such information is a valuable asset of the Company, and that its disclosure or unauthorized use will cause the Company substantial harm.
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4.3 OWNERSHIP. Employee acknowledges that all Confidential Information shall continue to be the exclusive property of the Company (or the third party that disclosed it to the Company), whether or not prepared in whole or in part by Employee and whether or not disclosed to Employee or entrusted to his custody in connection with his employment by the Company.
4.4 NONDISCLOSURE AND NONUSE. Unless authorized or instructed in writing by the Company, or required by legally constituted authority, Employee will not, except as required in the course of the Company's business, during or after his employment, disclose to others or use any Confidential Information, unless and until, and then only to the extent that, such items become available to the public through no fault of Employee.
4.5 RETURN OF CONFIDENTIAL INFORMATION. Upon request by the Company during or after his employment, and without request upon termination of employment pursuant to this Agreement, Employee will deliver immediately to the Company all written or tangible materials containing Confidential Information without retaining any excerpts or copies.
4.6 DURATION. The obligations set forth in this Section 4 will continue beyond the term of employment of Employee by the Company and for so long as Employee possesses Confidential Information.
5. MATERIALS PREPARED AND INVENTIONS MADE DURING EMPLOYMENT. The Company shall be the exclusive owner of all materials, concepts, and inventions Employee prepares, develops, or makes (whether alone or jointly with others) within the scope of his employment, and of all related rights (including copyrights, trademarks, and patents) and proceeds. Without limitation, materials, concepts, and inventions that (a) relate to the Company's business or actual or demonstrably anticipated research or development, or (b) result from any work performed by Employee for the Company, shall be considered within the scope of Employee's employment. Employee shall promptly disclose all such materials, concepts, and inventions to the Company. Employee shall take all action reasonably requested by the Company to vest ownership of such materials, consents, and inventions in the Company and to permit the Company to obtain copyright, trademark, patent, or similar protection in its name.
6. NONCOMPETITION. Employee confirms the noncompetition covenant set forth in his Employment Agreement dated as of August 31, 1993 (the "1993 Agreement"). The covenant is restated below to refer to the appropriate sections of this Agreement.
6.1 COVENANT. Subject to the provisions of Section 6.3, Employee covenants that Employee will not, throughout the United States, either individually or as a director, officer, partner, employee, agent, representative, or consultant with any business, directly or indirectly during the term of employment and for one year thereafter:
6.1.1 Engage or prepare to engage in any business that competes with the Company;
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6.1.2 Induce or attempt to induce any person who is an employee of the Company during the term of this covenant to leave the employ of the Company; or
6.1.3 Solicit, divert, or accept orders for products or services that are substantially competitive with the products or services sold by the Company from any customer of the Company.
6.2 ENFORCEMENT. Employee acknowledges and agrees that the time, scope, and other provisions of this Section 6 have been specifically negotiated by sophisticated parties with the advice and consultation of counsel and specifically hereby agrees that such time, scope, and other provisions are reasonable under the circumstances. Employee further agrees that if, at any time, despite the express agreement of the parties hereto, a court of competent jurisdiction holds that any portion of this Section 6 is unenforceable for any reason, the maximum restrictions reasonable under the circumstances, as determined by such court, will be substituted for any such restrictions held unenforceable.
6.3 RELEASE FROM OBLIGATION. In the event that Employee shall be entitled to extraordinary compensation pursuant to the provisions of Section 7.5.2, Employee may elect to waive all rights to receive such compensation from and after the date of such waiver in exchange for the release of Employee from the obligations of Sections 6.1.1 and 6.1.3. Such waiver shall be in writing, shall state that it is in consideration for the release of Employee from the obligations of Sections 6.1.1 and 6.1.3 of this Agreement, and shall be effective when delivered to Epitope. In the event of such a waiver, the amounts payable pursuant to the provisions of Section 7.5.2 shall be prorated through the period commencing on the date of termination of employment and ending on the date of delivery of the written notice of waiver to Epitope. For example, if such waiver is delivered to Epitope six months after the commencement for the 12-month-period set forth in Section 7.5.2, Employee shall be paid one-half of the amounts otherwise payable pursuant to the provisions of Section 7.5.2; in the event that Employee shall have received more than such pro rata share of such compensation, it shall be a condition of Employee's rights under this section that he shall have returned to Epitope any amounts in excess of such pro rata share with the delivery of the waiver notice to Epitope.
7. TERMINATION.
7.1 TERMINATION UPON DEATH. This Agreement shall terminate immediately upon Employee's death.
7.2 TERMINATION BY EMPLOYEE. Employee may terminate his employment under this Agreement by 90 days' written notice to the Company.
7.3 TERMINATION BY THE COMPANY FOR CAUSE. The Company may terminate Employee's employment under this Agreement for cause at any time, with or without advance notice. "Cause" includes, but is not limited to: (a) a material breach of this Agreement by Employee and Employee's failure to promptly cure such breach after receipt of written notice thereof from the President and Chief Executive Officer or the board of directors of the
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Company; (b) Employee's willful and continuous refusal or failure to comply with the policies or standards of the Company or to perform any material job duties of Employee; (c) any act of fraud, dishonesty, or misconduct by Employee in connection with Employee's employment with the Company; (d) the commission of any act in direct competition with or materially detrimental to the best interests of the Company; or (e) Employee's failure to otherwise comply with the standards of behavior that an employer reasonably has the right to expect of an employee.
7.4 TERMINATION BY THE COMPANY WITHOUT CAUSE. The Company may terminate Employee's employment under this Agreement without ...