Exhibit 10.7
January 27, 1998
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Vice President, Development
VARIAGENICS, INC.
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Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Dear ▇▇▇▇:
This letter agreement (the "Agreement") affirms the terms and conditions of your
continued employment by VARIAGENICS, INC. ("VARIAGENICS" or the "Company") after
the Interim Period as defined in the Terms and Conditions sheet dated September
10, 1997 (the "Terms and Conditions Sheet").
This Agreement will be effective March 15, 1997 and will constitute the entire
agreement as to your employment by VARIAGENICS, and supersedes any prior
agreements or understandings, either written or oral, between us, including the
Terms and Conditions Sheet (except for paragraph 6 thereof), and except for the
"Invention and Non-Disclosure Agreement" dated September 10, 1997, which shall
remain in full force.
1. Position
(a) The Company agrees to continue your employment in the position of Vice
President, Development reporting to the President and CEO. The President
and CEO will determine the duties of this position. Initially your
responsibilities will include leading teams to:
(i) Transfer technologies and know-how for variance detection from the
Malvern facility to the Company's Cambridge headquarters.
(ii) Develop and implement high-throughput, quality-controlled process
for variance detection.
(iii) Develop and implement plan for diagnostic product development
through corporate alliances or affiliated companies with Business
Development.
(iv) Develop and implement advanced, high-throughput methods for genetic
variance detection and diagnostics as well as quality control
procedures required for clinical trials and commercialization of
diagnostic and therapeutic products.
(b) Your responsibilities, position, and location are subject to change at the
discretion of the Company, but will continue to be consistent with the
position of Vice President of the Company.
January 27, 1998
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(c) During your employment with the Company, you will devote your full
business time and energies to the business and affairs of the Company, and
not undertake any other employment or accept financial remuneration from
any person or entity in the biotechnology industry, without express
written consent by the President and CEO. You may continue to receive
remuneration from Avitech Diagnostics based on your historical contractual
relationships with that company.
(d) Within six (6) months of the start of this Agreement, you will assume
residence in the Boston, Massachusetts area.
2. Compensation/Benefits
(a) Your initial salary shall be $145,000.00 on an annualized basis, which
will be reviewed by the Company from time to time, but at least once each
year. The Company may increase or decrease the salary at any time at its
sole discretion after providing at least 10 days written notice of its
intent, and providing that any decrease in salary is commensurate with
decreases offered to other employees at the level of Vice President. In
addition, you will be eligible to receive bonuses of up to $14,500 for
achieving milestones that will be agreed upon with the President and CEO.
(b) The Company will also provide you with three (3) weeks of paid vacation
leave each year accrued on a monthly basis. All such amounts must be used
in the calendar year in which they were accrued and may not be carried
over into the following year. The Company will also make reasonable
accommodations to allow up to one (1) week of unpaid vacation per year. In
addition, you will be entitled to six (6) paid Company holidays per year
and four (4) paid floating holidays per year.
(c) You will be entitled to participate in all employee fringe benefit
programs generally offered to other management employees, including
without limitation, medical, dental and life insurance plans. Currently,
the Company provides benefits including: (i) comprehensive health
insurance, (ii) dental insurance, (iii) life insurance, (iv) short term
disability insurance, (v) long term disability insurance, (vi)
participation in the Company's 401K plan, and (vii) free parking near the
Company or a T pass. The Company retains the right to change, add or cease
any particular benefit at any time with or without advance notice, but you
will be afforded the same benefits while employed as other senior
executives at comparable levels with the Company.
(d) You will be provided with an option to purchase 32,000 shares of common
stock at $0.64 per share with the Company subject to all the terms and
restrictions contained in a "Stock Option Agreement" that provides for the
vesting of 1/60 of the total number of shares each month for 60 months
substantially in the form of the "Stock Option Agreement" attached as
Exhibit A.
January 27, 1998
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(e) The Company will reimburse your relocation/moving expenses up to $15,000
in connection with the presentation of actual and appropriate receipts to
the Company.
(f) The Company will assume certain severance/stay bonuses on behalf of
Avitech Diagnostics as described in the final Purchase and Sale documents
and paragraph 6 of the Terms and Conditions Sheet.
3. Term
Your employment shall have an Initial Term ("Initial Term") of one year,
beginning March 15, 1998, and ending March 14, 1999, unless terminated earlier
as specified below in Section 4. This Agreement shall be automatically extended
for an additional one (1) year term at the expiration of the Initial Term unless
either party provides no less than thirty (30) days advance written notice of
its intent not to extend.
4. Early Termination and Compensation Upon Early Termination
(a) You shall have the right to terminate the employment relationship at any
time during the Initial Term of this Agreement, and during any subsequent
extensions thereof, with or without "Good Reason" (which shall mean the
breach of any material term of this Agreement by the Company, which breach
is not cured within ten (10) days subject to written notice by you to the
Company), and with or without advance notice.
(i) If you voluntarily leave the Company without Good Reason at any
time, you will have no right to future compensation and no
compensation shall be due to you for any period beyond the effective
date of termination.
(ii) If you voluntarily leave the Company with Good Reason at any time,
the Company will continue to pay you an amount equal to your full
salary (with applicable withholdings and deductions) and will
provide you with equivalent benefits, excluding parking or
transportation, for a period of six (6) months from your last day of
employment, provided that you comply with the non-competition and
non-solicitation covenants set forth in paragraph 5.
(b) The Company shall have the right to terminate the employment relationship
at any time during the Initial Term of this Agreement, and during any
subsequent extensions thereof, with or without cause and with or without
advance notice.
(i) If your employment is terminated by the Company without Cause during
the Initial Term, the Company will continue to pay you an amount
equal to your full salary (with applicable withholdings and
deductions) and will provide you with
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equivalent benefits, excluding parking or transportation, for a
period of six (6) months from the date it informs you of its
intention to terminate your employment, or through the remainder of
the Initial Term, whichever is longer, provided that you comply with
the non-competition and non-solicitation covenants set forth in
paragraph 5.
(ii) If your employment is terminated by the Company without Cause after
the Initial Term and during a subsequent extension thereof, the
Company will continue to pay you an amount equal to your full salary
(with applicable withholdings and deductions) and will provide you
with equivalent benefits, excluding parking or transportation, for a
period of six (6) months from the date it informs you of its
intention to terminate your employment, provided that you comply
with the non-competition and non-solicitation covenants set forth in
paragraph 5.
(iii) If your employment is terminated by the Company for Cause at any
time, no compensation shall be due to you for any period beyond the
effective date of termination. "Cause" shall mean the breach of the
terms of this Agreement (which breach is not cured within ten (10)
days subsequent to written notice by the Company), commission of any
crime or embezzlement or other acts of dishonesty against the
financial or business interests of the Company, the use or
possession of illegal drugs, the willful refusal to perform your
duties (which is not cured within ten (10) days subsequent to
written notice by the Company), and any other conduct or
circumstance that constitutes cause as that term has been defined by
Massachusetts common law.
5. Non-competition / Non-solicitation
The non-competition and non-solicitation provisions contained in this paragraph
will apply during the entire term of your employment (including the Initial Term
and any subsequent extensions thereof), and in the event that your employment is
terminated early pursuant to paragraph 4, these provisions will apply for the
Initial Term or a period of six (6) months following this early termination,
whichever is longer.
(a) During the applicable time period described above, in the continental
United States, you shall not: (i) be associated as an employee, agent,
servant, owner, partner, consultant, independent contractor or
representative, or in any other capacity whatsoever with any person,
partnership, corporation, business organization or other entity (without
the prior written consent of the Company) which directly or indirectly
competes with the Company's business (a "Competing Business"); (ii)
canvass, solicit or accept any business from any of the Company's current
or former clients; (iii) own any substantial interest in a Competing
Business; or (iv) assist others to open or operate a Competing Business.
January 27, 1998
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(b) Should you violate any provision of paragraph 5(a), the Company will have
no obligation to continue any payments, salary or benefits pursuant to
paragraph 4 or otherwise.
6. Anti-Piracy of Employees
(a) For a period of twelve (12) months commencing on the later of your last
day of employment pursuant to this Agreement, you shall not, directly or
indirectly, entice, solicit or encourage any Company employee to leave the
employ of the Company, and shall not directly or indirectly, be involved
in the recruitment of any Company employee.
(b) Should you violate any provision of paragraph 6(a), the Company will have
no obligation to continue any payments, salary or benefits pursuant to
paragraph 4 or otherwise.
7. Workplace
The Company considers the safety and quality of the workplace to be very
important. You are expected to be familiar with and abide by the Company's
safety policies. You are expected to contribute to creating a working
environment that is both conducive to fostering the business objectives of the
Company and in which respect for the rights and dignity of all individuals is
maintained.
8. Choice of Law; Enforceability
You acknowledge that the Company's business is based out of and directed from
the Commonwealth of Massachusetts. You also acknowledge that during the course
of your employment with the Company you will have substantial contacts with
Massachusetts. This Agreement shall be deemed to have been made in the
Commonwealth of Massachusetts, shall take effect as an instrument under seal
within Massachusetts, and the validity, interpretation and performance of this
Agreement shall be governed by, and construed in accordance with, the internal
law of Massachusetts, without giving effect to conflict of law principles. Both
parties agree that any action, demand, claim or counterclaim relating to the
terms and provisions of this Agreement, or to its breach or its formation, shall
be commenced in Massachusetts in a court of competent jurisdiction. Both parties
further acknowledge that venue shall exclusively lie in Massachusetts and that
material witnesses and documents would be located in Massachusetts.
9. Miscellaneous
(a) You acknowledge and agree that should you be promoted or reassigned to
functions other than your present functions, the terms of this Agreement
and the other agreements incorporated herein shall continue to apply with
full force.
January 27, 1998
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(b) Should any provision or term of this Agreement be held to be invalid,
illegal or unenforceable, in whole or part, such invalidity, illegality,
or unenforceability shall not affect the validity, legality or
enforceability of any other provision of this Agreement, and to the extent
permissible by law, the parties agree that a court shall have the power to
amend such specific provision so that it can be enforced to the fullest
extent permissible by law.
(c) No amendment, waiver or revocation of this Agreement of any kind shall be
effective unless supported by a written instrument executed by you and an
authorized officer of the Company.
(d) You hereby acknowledge that you have had adequate opportunity to review
these terms and conditions and to reflect upon and consider the terms and
conditions of this Agreement. You further acknowledge that you fully
understand its terms and have voluntarily executed this Agreement.
Kindly acknowledge your acceptance of this Agreement by signing both copies of
this letter where indicated and returning one to my attention.
WITNESS: VARIAGENICS, INC.
Date: 2/5/98 By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D.
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▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D.
President & CEO
By Employee:
Date: 2/5/98 By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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VARIAGENICS, INC.
ATTACHMENT A
INVENTION AND NON-DISCLOSURE AGREEMENT
This Agreement is made between VARIAGENICS, INC., a Delaware corporation
(hereinafter referred to collectively with its subsidiaries as the "Company"),
▇▇▇▇ ▇▇▇▇▇▇ (the "Employee").
In consideration of the employment or the continued employment of the Employee
by the Company, the Company and the Employee agree as follows:
1. Proprietary Information.
(a) The Employee agrees that all information, whether or not in writing, of a
private, secret or confidential nature concerning the Company's business,
business relationships or financial affairs (collectively, "Proprietary
Information") is and shall be the exclusive property of the Company. By
way of illustration, but not limitation, Proprietary Information may
include inventions, products, processes, methods, techniques, formulas,
compositions, compounds, projects, developments, plans, research data,
clinical data, financial data, personnel data, computer programs, customer
and supplier lists, and contacts at or knowledge of customers or
prospective customers of the Company. The Employee will not disclose any
Proprietary Information to any person or entity other than employees of
the Company or use the same for any purposes (other than in the
performance of his/her duties as an employee of the Company) without
written approval by an officer of the Company, either during or after
his/her employment with the Company, unless and until such Proprietary
Information has become public knowledge without fault by the Employee.
(b) The Employee agrees that all files, letters, memoranda, reports, records,
data, sketches, drawings, laboratory notebooks, program listings, or other
written, photographic, or other tangible material containing Proprietary
Information, whether created by the Employee or others, which shall come
into his/her custody or possession, shall be and are the exclusive
property of the Company to be used by the Employee only in the performance
of his/her duties for the Company. All such materials or copies thereof
and all tangible property of the Company in the custody or possession of
the Employee shall be delivered to the Company, upon the earlier of: (i) a
request by the Company or (ii) termination of his/her employment. After
such delivery, the Employee shall not retain any such materials or copies
thereof or any such tangible property.
(c) The Employee agrees that his/her obligation not to disclose or to use
information and materials of the types set forth in paragraphs (a) and (b)
above, and his/her obligation to return materials and tangible property,
set forth in paragraph (b) above, also extends to such types of
information, materials and tangible property of customers of the Company
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or suppliers to the Company or other third parties who may have disclosed
or entrusted the same to the Company or to the Employee.
2. Developments.
(a) The Employee will make full and prompt disclosure to the Company of all
inventions, improvements, discoveries, methods, developments, software,
and works of authorship, whether patentable or not, which are created,
made, conceived or reduced to practice by him/her or under his/her
direction or jointly with others during his/her employment by the Company,
whether or not during normal working hours or on the premises of the
Company (all of which are collectively referred to in this Agreement as
"Developments").
(b) The Employee agrees to assign and does hereby assign to the Company (or
any person or entity designated by the Company) all his/her right, title
and interest in and to all Developments and all related patents, patent
applications, copyrights and copyright applications. However, this
paragraph 2(b) shall not apply to Developments which do not relate to the
present or planned business or research and development of the Company and
which are made and conceived by the Employee not during normal working
hours, not on the Company's premises and not using the Company's tools,
devices, equipment or Proprietary Information. The Employee understands
that, to the extent this Agreement shall be construed in accordance with
the laws of any state which precludes a requirement in an employee
agreement to assign certain classes of inventions made by an employee,
this paragraph 2(b) shall be interpreted not to apply to any invention
which a court rules and/or the Company agrees falls within such classes.
The Employee also hereby waives all claims to moral rights in any
Developments.
(c) The Employee agrees to cooperate fully with the Company, both during and
after his/her employment with the Company, with respect to the
procurement, maintenance and enforcement of copyrights, patents and other
intellectual property rights (both in the United States and foreign
countries) relating to Developments. The Employee shall sign all papers,
including, without limitation, copyright applications, patent
applications, declarations, oaths, formal assignments, assignments of
priority rights, and powers of attorney, which the Company may deem
necessary or desirable in order to protect its rights and interests in any
Development. The Employee further agrees that if the Company is unable,
after reasonable effort, to secure the signature of the Employee on any
such papers, any executive officer of the Company shall be entitled to
execute any such papers as the agent and the attorney-in-fact of the
Employee, and the Employee hereby irrevocably designates and appoints each
executive officer of the Company as his/her agent and attorney-in-fact to
execute any such papers on his/her behalf, and to take any and all actions
as the Company may deem necessary or desirable in order to protect its
rights and interests in any Development, under the conditions described in
this sentence.
3. Other Agreements.
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The Employee hereby represents that, except as the Employee has disclosed in
Exhibit A to this Agreement or in writing to the Company, the Employee is not
bound by the terms of any agreement with any previous employer or other party to
refrain from using or disclosing any trade secret or confidential or proprietary
information in the course of his/her employment with the Company or to refrain
from competing, directly or indirectly, with the business of such previous
employer or any other party. The Employee further represents that his/her
performance of all the terms of this Agreement and as an employee of the Company
does not and will not breach any agreement to keep in confidence proprietary
information, knowledge or data acquired by the Employee in confidence or in
trust prior to his/her employment with the Company, and the Employee will not
disclose to the Company or induce the Company to use any confidential or
proprietary information or material belonging to any previous employer or
others.
4. United States Government Obligations.
The Employee acknowledges that the Company from time to time may have agreements
with the other persons or with the United States Government, or agencies
thereof, which impose obligations or restrictions on the Company regarding
inventions made during the course of work under such agreements or regarding the
confidential nature of such work. The Employee agrees to be bound by all such
obligations and restrictions which are made known to the Employee and to take
all action necessary to discharge the obligations of the Company under such
agreements.
5. No Employment Contract.
The Employee understand that this Agreement does not constitute a contract of
employment and does not imply that his/her employment will continue for any
period of time.
6. Miscellaneous.
(a) The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of
this Agreement.
(b) This Agreement supersedes all prior agreements, written or oral, between
the Employee and the Company relating to the subject matter of this
Agreement. This Agreement may not be modified, changed or discharged in
whole or in part, except by an agreement in writing signed by the Employee
and the Company. The Employee agrees that any change or changes in his/her
duties, salary or compensation after the signing of this Agreement shall
not affect the validity or scope of this Agreement.
(c) This Agreement will be binding upon the Employee's heirs, executors and
administrators and will inure to the benefit of the Company and its
successors and assigns.
(d) No delay or omission by the Company in exercising any right under this
Agreement will operate as a waiver of that or any other right. A waiver or
consent given by the Company on any one occasion is effective only in that
instance and will not be construed as a bar to or waiver of any right on
any other occasion.
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(e) The Employee expressly consents to be bound by the provisions of this
Agreement for the benefit of the Company or any subsidiary or affiliate
thereof to whose employ the Employee may be transferred without the
necessity that this Agreement be re-signed at the time of such transfer.
(f) The restrictions contained in this Agreement are necessary for the
protection of the business and goodwill of the Company and are considered
by the Employee to be reasonable for such purpose. The Employee agrees
that any breach of this Agreement is likely to cause the Company
substantial and irrevocable damage and therefore, in the event of any such
breach, the Employee agrees that the Company, in addition to such other
remedies which may be available, shall be entitled to specific performance
and other injunctive relief.
(g) This Agreement is governed by and will be construed as a sealed instrument
under and in accordance with the laws of the Commonwealth of
Massachusetts. Any action, suit, or other legal proceeding which is
commenced to resolve any matter arising under or relating to any provision
of this Agreement shall be commenced only in a court of the Commonwealth
of Massachusetts (or, if appropriate, a federal court located within
Massachusetts), and the Company and the Employee each consents to the
jurisdiction of such a court.
THE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND
UNDERSTANDS ANT) AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.
WITNESS: VARIAGENICS, INC.
Date: 9/15/97 By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D.
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▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D.
President
By Employee:
Date: 9/15/97 By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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VARIAGENICS, INC.
INVENTION AND NON-DISCLOSURE AGREEMENT
EXHIBIT A
OTHER AGREEMENTS
Pursuant to section 3 of this Agreement, the following is a list of pertinent
agreements between the Employee and previous employers or other parties:
None
As shown below
1. FMC Corporation: Expires 2/17/2000 - Confidentiality regarding at
Biochem GEI products.
By VARIAGENICS, INC. By Employee:
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D. 9/15/97 By: /s/ ▇▇▇▇ ▇▇▇▇▇▇, 9/15/97
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▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D. Date ▇▇▇▇ ▇. ▇▇▇▇▇▇ Date
President
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