EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") made and entered into as of October
1, 2003, by and between Intercell International Corporation (the "Corporation"),
a Nevada corporation, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, an individual with her principal
business address at370 17th Street, Suite 3640, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
"Executive");
1. EMPLOYMENT AND TERM.
(a) Employment. The Company hereby employs Executive and
Executive hereby accepts such employment, in the capacity of President and
Chief Executive Officer of the Corporation to act in accordance with the
terms and conditions hereinafter set forth.
(b) Term. Executive's employment hereunder shall be for an
initial term of one year (the "Initial Term") commencing on October 1, 2003
(the "Effective Date") and terminating on September 30, 2006, subject to
the extension or earlier expiration of the Initial Term as provided in this
Agreement. Within forty-five (45) days of September 30, 2006 the
Corporation's Board of Directors (the "Board") shall review Executive's
performance under this Agreement and, in its sole discretion, renew the
Agreement for a term of one year (a "Renewal Term") commencing on the first
day immediately following the Expiration Date (as defined below). The board
shall provide Executive written notice of its decision to renew or not
renew this Agreement at least 30 days prior to the date of this Agreement
expires under the Initial Term of any Renewal Term (the "Expiration Date").
If the Board fails to provide Executive with such written notice, within
the time period set forth above, the Agreement shall terminate on the
Expiration Date of the Initial Term or Renewal Term, as the case may be.
Whenever the word "Term" is used in this Agreement is shall refer to either
the Initial Term or the Renewal Term, as the case may be.
(c) Location of Employment. Effective upon the date of this
Agreement, and through the Initial Term the Corporation shall maintain an
office for Executive at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, or such other location upon which the Corporation and Executive
shall mutually agree at which location Executive shall carry out her
duties.
2. DUTIES.
(a) During the period of employment as provided in Paragraph
1(b) hereof, Executive shall serve as Chief Financial Officer of the
Corporation, and shall have all powers and duties consistent with such
position subject to the direction of the Board. Such duties shall include,
without limitation, the following:
(i) Chief Financial Officer. The primary duties and
responsibilities of the Chief Financial Officer consist of the
following: to establish overall financial practices and procedures
necessary to maintaining effective accounting control over all aspects
of the Corporation and its subsidiaries. In addition, the Chief
Financial Officer will have primary responsibility for the appropriate
management and investment of the Corporation's assets, particularly
cash, to maximize the highest possible rate of return. Additional
responsibilities will include
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dealing primarily with the Corporation's independent auditors,
financial institutions, particularly commercial banks and financial
analysts, the preparation, based upon information obtained from
appropriate personnel, of an annual budget, both consolidated and
unconsolidated and additional interim reports as will permit him to
maintain effective control and supervision on a continuing basis of
the Corporation's financial results or operations and financial
status, and such further responsibilities as are delegated to
Executive by the President and Chief Executive Officer of the
Corporation.
(b) Executive shall devote substantially all of her entire
professional time, attention and energy exclusively to the business and
affairs of the Corporation and its subsidiaries, as its business and
affairs now exist and as they hereafter may be changed, and shall not
during the term of her employment hereunder be engaged in any other
business activity whether or not such business activity is pursued for gain
or profit. The foregoing shall not be construed as preventing Executive
from (a) managing her personal investments or investing her assets in such
form or manner as will not require any significant services on her part in
the operation of the affairs of the businesses or entities in which such
investments are made, provided Executive shall not invest in any business
competitive with the Corporation and its affiliates, except those companies
whose securities are listed on a national securities exchange or quoted
daily in the Over-the-Counter Market listing of the The Wall Street
Journal; or (b) preclude Executive from continuing to serve on the board of
directors of any business corporation or any charitable organization on
which he now serves and which has been disclosed to the Corporation in
writing or, subject to the prior approval of the Board, from accepting
employment to additional board of directors, provided that such activities
do not materially interfere with the performance of Executive's duties
hereunder.
(c) Executive further agrees that during the term of her
employment under this Agreement he will engage in no business or other
activities, directly or indirectly, which are or may be competitive with or
which might place him in a competing position to that of the Corporation
and its affiliates without obtaining the prior written consent of the
Board, including, without limitation, the solicitation or acceptance of
consulting work from clients of the Corporation and its affiliates for whom
he has performed services by virtue of this Agreement or who he has met in
connection with her employment under this Agreement.
3. COMPENSATION.
(a) Base Salary. For services performed by Executive for the
Corporation pursuant to this Agreement during the Term, the Corporation
shall pay Executive a base salary at the rate of $60,000.00 per year (the
"Base Salary"). The Base Salary will be payable in accordance with the
Corporation's normal payroll practices but in no event less than once a
month. Any compensation paid to Executive under any additional compensation
or incentive plan of the Corporation, or that may be otherwise authorized
from time to time by the Board, shall be in addition to the base salary to
which Executive shall be entitled under this Agreement.
(b) Salary Adjustments. The Corporation shall determine
adjustments to the base salary on an annual basis.
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(c) Tax Withholding. The Corporation shall provide for the
withholding of any taxes required to be withheld by federal, state and
local law with respect to any payment in cash, shares of capital stock or
other property made by or on behalf of the corporation to or for the
benefit of Executive under this Agreement or otherwise. The Corporation
may, at its option: (i) withhold such taxes from any cash payments owing to
the Corporation to Executive, including any payments owing under any other
provision of this Agreement, (ii) require Executive to pay to the
Corporation in cash such amount as may be required to satisfy such
withholding obligations or (iii) make other satisfactory arrangements with
Executive to satisfy such withholding obligations.
4. BENEFITS. In addition to the base Salary, Executive shall also be
entitled to the following:
(a) Participation in Benefit Plans. Executive shall be
entitled to participate in the various retirement, welfare, fringe benefit,
group long-term disability plans and other executive perquisite plans,
programs and arrangements of the Corporation available for senior executive
level officers of the Corporation. Executive and her dependents, at
Executive's request shall be enrolled in the Corporation's health, life,
disability and other insurance plans and programs immediately upon her
commencement of employment hereunder.
(b) Vacation and Sick Leave. Executive shall be entitled to
two weeks of vacation during each calendar year during which this Agreement
is in effect, or such greater period as the Board may approve, and to paid
holidays given by the Corporation to its domestic employees generally,
without reduction in salary or other benefits. Executive shall also be
entitled to sick leave according to the sick leave policy, which the
Corporation may adopt from time to time.
(c) Basic Stock Option. Executive shall be eligible for
grants of stock options in accordance with the Corporation's 1995
Compensatory Stock Option Plan or such other stock option plan developed by
the Board.
(d) Expenses. The Corporation shall reimburse Executive,
upon proper accounting, for reasonable business expenses and disbursements
incurred by him in the course of the performance of her duties under this
Agreement and in accordance with the Corporation's policies as in effect
from time to time.
(e) Proration of Benefits. Any payments or benefits hereunder,
in any year during which Executive is employed by the Corporation for less
than the entire year shall, unless otherwise provided in the applicable
plan or arrangement, be prorated in accordance with the number of days in
such year during which Executive is employed by the Corporation.
5. INDEMNIFICATION AND INSURANCE. Executive shall be entitled to the
maximum indemnification provided by the Bylaws and the Articles of Incorporation
of the Corporation for officers and employees of the Corporation. Executive's
rights under this Paragraph shall continue without time limit so long as he may
be subject to any such liability, whether or not the Term of employment has
ended. The Corporation shall obtain and maintain, in effect, officers and
directors liability insurance in an amount not less than $1,000,000 without time
limit so long as
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Executive may be subject to any such liability, whether or not the Term of
employment has ended.
6. REPRESENTATIONS AND WARRANTIES OF EXECUTIVE. Executive hereby
represents and warrants to the Corporation that (a) Executive's execution and
delivery of this Agreement and her performance of her duties and obligations
hereunder will not conflict with, or cause a default under, or give any party a
right to damages under, or to terminate, any other agreement to which Executive
is a party or by which he is bound, and (b) there are no agreements or
understandings that would make unlawful Executive's execution or delivery of
this Agreement or her employment hereunder.
7. REPRESENTATIONS AND WARRANTIES OF THE CORPORATION. The Corporation
hereby represents and warrants to Executive as follows:
(a) The Corporation is duly organized and established as a
corporation under the laws of the State of Nevada and has all requisite
power and authority to enter into this agreement and to perform its
obligations hereunder. The consummation of the transactions contemplated by
this Agreement will neither violate nor be in conflict with any agreement
or instrument to which the Corporation is a party or by which it is bound.
(b) The execution, delivery and performance of this Agreement and the
transactions contemplated hereby have been duly and validly authorized by
all requisite corporate action on the part of the Corporation and are
valid, legal and binding obligations of the Corporation, enforceable in
accordance with their terms except as may be limited by the laws of general
application relating to bankruptcy, insolvency, moratorium or other similar
laws relating to or affecting the enforcement or creditors' rights, and
rules of law governing specific performance, injunctive relief or other
equitable remedies.
8. TERMINATION.
(a) Cause. The Corporation may terminate Executive's employment
at any time for Cause (as defined herein), by reason of Disability (as
defined herein), or without Cause; provided, however, that for any reason
constituting Cause, Executive is given (x) reasonable notice ("Notice of
Termination for Cause") setting forth the reasons for the Corporation's
intention to terminate for Cause and the effective date of such termination
(which effective date may be the date of such notice), (y) an opportunity
for Executive, together with her counsel, to be heard before the Board
within two weeks of such notice and (z) within five (5) business days after
Executive's hearing before the Board, written notice to Executive from the
Board of its good faith determination that the reasons specified in the
Notice of Termination for Cause constitute Cause under this Paragraph 8(a),
and that Executive's employment is terminated effective as of the date
specified in the Notice of Termination for Cause. Executive's rights to
receive her salary and benefits hereunder shall not be affected during the
period between the receipt of the Notice of Termination for Cause and the
determination, if any, by the Board that the reasons specified in such
notice constituted Cause. For purposes of this Agreement, "Cause" means:
(i) Executive commits a breach of any material term of this
Agreement, or any material obligation of the Corporation, and such
breach constitutes gross negligence
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or willful misconduct and, if such breach is capable of being cured,
Executive Fails to cure such breach within 30 days of notice of such
breach;
(ii) Executive is convicted of, or pleads guilty or nolo
contendere to a felony;
(iii) Executive's commission of any act that would cause any
license of the Corporation or its subsidiaries or affiliates to be
revoked, suspended, or not be renewed after proper application;
(iv) gross negligence in the performance of Executive's duties
and responsibilities;
(v) refusal of Executive to follow proper and achievable written
direction of the Board, provided that this shall not be Cause if
Executive in good faith believes the direction to be illegal,
unethical or immoral and so notifies the Board;
(vi) material fraud or dishonesty with regard to the Corporation
(other than good faith expense account disputes); or
(vii) continuous refusal to attempt to perform Executive's
responsibilities and duties after written notice.
(b) Good Reason. Executive may terminate her employment at any time
for any of the following reasons (each of which is referred to herein as
"Good Reason") by giving the Corporation notice of the effective date of
such termination (which effective date may be the date of such notice):
(i) the Corporation commits a breach of any material term of
this Agreement and, if such breach is capable of being cured, the
Corporation fails to cure such breach within 30 days of receipt of
notice of such breach; or
(ii) a material change of position, duties or the assignments of
duties materially inconsistent with Executive's position as Executive
Officer of the Corporation.
(c) Change in Control. Executive may, at her option, terminate her
employment upon a "Change in Control." For purposes of this Agreement,
"Change of Control" shall mean:
(i) the obtaining by any party of fifty percent (50%) of more of
the voting shares of the Corporation pursuant to a "tender offer" for
such shares as provided under Rule 14d-2 promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or
any subsequent comparable federal rule or regulation governing tender
offers; or
(ii) individuals who were members of the Board immediately prior
to any particular meeting of the Corporation's shareholders which
involves a contest for the election of directors fail to constitute a
majority of the members of the Board following such election; or
(iii) the Corporation's executing an agreement concerning the
sale of substantially all of its assets to a purchaser which is not a
subsidiary; or
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(iv) the Corporation's adoption of a plan of dissolution or
liquidation;
(v) the Corporation's executing an agreement concerning a merger
of consolidation involving the Corporation in which the Corporation is
not the surviving corporation or if, immediately following such merger
or consolidation, less than fifty percent (50%) of the surviving
corporation's outstanding voting stock is held by persons who are
stockholders of the Corporation immediately prior to such merger of
consolidation.
(d) Executive's Rights to Terminate. Executive may, at her option,
terminate her employment hereunder for any reason upon 60 days' prior
written notice to the Corporation.
(e) Death. This Agreement shall terminate automatically upon
Executive's death.
(f) Disability. The term "Disability" as used in connection with
termination of the employment of Executive shall mean the inability of
Executive to substantially perform her material duties hereunder due to
physical or mental disablement which continues for a period of six (6)
consecutive months, during the term of employment (during which six (6)
month period Executive's salary and benefits shall continue) as determined
by an independent qualified physician mutually acceptable to the
Corporation and Executive (or her personal representative). Notwithstanding
the above, in the event of Disability, Executive shall be entitled to
participate in and be covered by the Corporation's group health plan until
Executive is able to obtain health insurance on substantially the same
terms and conditions as provided in the Corporation's group health plan;
provided, however, that if the Corporation's group health plan does not
allow Executive and her dependents to continue coverage, then the
Corporation and Executive agree to negotiate a mutually satisfactory
alternative to provide Executive with the benefits intended by this
Paragraph 8(f).
(g) Without Cause. The Corporation may, at its option, terminate
Executive's employment without Cause at any time upon written notice to
Executive.
(h) Date of Termination. For purposes of this Agreement, the term
"Date of Termination" shall mean the date that any party gives notice,
through action or otherwise, that it intends to terminate this Agreement
pursuant to the terms hereof or the date, if any, specified by the
terminating party in such notice as the effective date of termination;
provided, however, with respect to termination for Cause, the Date of
Termination shall be the date of receipt by Executive of written notice
form the Board as required by Paragraph 8(a) hereof. In addition, where
Executive gives notice to terminate this Agreement and the effective date
of termination is other than the date the Corporation receives notice of
termination, the Corporation reserves the right to accelerate the
Termination Date to the date Executive notified the Corporation of her
intent to terminate this Agreement.
9. OBLIGATIONS OF THE CORPORATION UPON TERMINATION.
(a) Without cause or for Good Reason. If the Corporation shall
terminate Executive's employment without Cause or if Executive shall
terminate her employment for Good Reason, this Agreement shall terminate
without further obligation to Executive hereunder, other that the
obligation (i) to continue to pay Executive in accordance with the
Corporation's normal payroll payment procedures her Base Salary from the
Date of Termination at the rate in effect on the Date of Termination
through the next anniversary
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of the Effective Date; and (ii) to continue to provide Executive with the
benefits set forth in Paragraph 4(a) through the next anniversary of the
Effective Date.
(b) Voluntary. If Executive terminates her employment for other than
Good Reason (a "Voluntary Termination"), this Agreement shall terminate
without further obligation to Executive hereunder, other than the
obligation (i) to continue to pay Executive in accordance with the
Corporation's normal payroll payment procedures her Base Salary through the
Date of Termination at the rate in effect on the Date Termination; and (ii)
to continue to provide Executive with benefits of the type described in
Paragraph 4(a) through the day preceding the Date of Termination.
(c) Cause. If Executive's employment shall be terminated by the
Corporation for "Cause" the Corporation shall continue to pay Executive her
Base Salary through the Date of Termination at the rate in effect upon the
Date of Termination. Thereafter, the Corporation shall have no further
obligation to Executive.
(d) Death. If Executive's employment is terminated by reason of
Executive's death, the corporation shall pay to Executive's heirs or
estate, the Base Salary at the rate in effect on the day preceding death
through the next anniversary of the Effective Date, in one lump sum,
payable within sixty days of the date of death.
(e) Disability. If Executive's employment is terminated by reason of
Disability, the Corporation shall (i) continue in accordance with the
Corporation's normal payroll payment procedures to pay Executive her Base
Salary form the Date of Termination at the rate in effect on the Date of
Termination, through the next anniversary of the Effective Date; provided,
however, that if an event or condition is determined to be the cause of
Disability, by an independent qualified physician acceptable to Executive
and the Corporation, and such event or condition occurs at any time in the
last six months of the Term, then the Corporation shall continue to pay
Executive her Base Salary in accordance with the Corporation's normal
payroll procedures for a period of Six (6) months beyond the Term; and (ii)
continue to provide Executive with benefits of the type described in
Paragraph 4(a) through the next anniversary of the Effective Date;
provided, however, that if the Corporation's group health plan does not
allow Executive and her dependents to continue coverage, then the
Corporation and Executive agree to negotiate a mutually satisfactory
alternative to provide Executive with the benefits intended by this
Paragraph 9(e).
(f) Change of Control. If Executive terminates her employment within
90 days following a Change of Control, the Corporation shall (i) continue
in accordance with the Corporation's normal payroll payment procedures to
pay Executive her Base Salary at the rate in effect on the Date of
Termination through the next anniversary of the Effective Date; and (ii)
continue to provide Executive with benefits of the type described in
Paragraph 4(a) through the day preceding the Date of Termination.
10. NON-COMPETITION. Executive acknowledges and recognizes the highly
competitive nature of the Corporation and its affiliates and Executive
accordingly covenants and agrees, that at all times for a period of twelve (12)
consecutive months subsequent to the end of the Term or the Date of Termination,
whichever occurs earlier, as follows:
(a) Executive will not directly or indirectly own, manage, operate,
finance, join control or participate in the ownership, management,
organization , financing or control
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of, or be connected as an officer, director, employee, partner, principal,
agent, representative, consultant or otherwise with any business or
enterprise engaged in a business the same as or substantially similar to
the business of the Corporation and its affiliates except as a holder of
fewer that 5% of the outstanding shares or other equity interests of a
company whose shares or other equity interests are registered under Section
12 of the Exchange Act.
(b) Executive will not directly or indirectly induce any employee of
the Corporation or any of its affiliates to engage in any activity in which
Executive is prohibited from engaging by subparagraph (a) above or to
terminate their employment with the corporation or any of its affiliates,
and will not directly or indirectly employ or offer employment to any
person who was employed by the Corporation or any of its affiliates unless
such person shall have been terminated without cause or ceased to be
employed by any such entity for a period of at least 12 months.
(c) Executive will not use or permit her name to be used in connection
with any business or enterprise engaged in the business the same as or
similar to Corporation or its affiliates or any other business engaged in
by Corporation or any of its affiliates.
(d) Executive will not use the name of the Corporation or any name
similar thereto, but nothing in this clause shall be deemed, by
implication, to authorize or permit use of such name after expiration of
such period.
(e) Executive will not make any statement or take any action intended
to impair the goodwill or the business reputation of the Corporation or any
of is affiliates, or to be otherwise detrimental to the interests of the
Corporation or any of its affiliates, including any action or statement
intended, directly or indirectly, to benefit a competitor of the
Corporation or any of its affiliates, except as may be required by
applicable law or by a local, state or federal regulatory agency.
(f) Executive will not (a) disclose any customer lists or any part
thereof to any person, firm, corporation, association or other entity for
any reason or purpose whatsoever; (b) assist in obtaining any of the
Corporation's customers for any other similar business; (c) encourage any
customer to terminate, change or modify its relationship with the
Corporation; or (d) solicit or divert or attempt to solicit or divert the
Corporation's customers.
(g) The Corporation shall have the right, subject to applicable law,
to inform any other third party that the Corporation reasonably believes to
be, or to be contemplating participating with Executive or receiving from
Executive properties of the Corporation in violation of this Agreement and
of the rights of the Corporation hereunder, and that participation by any
such third party with Executive in activities in violation of this
Paragraph 10 may give rise to claims by the Corporation against such third
party;
(h) Executive and the Corporation agree that in light of the
specialized nature of the industry and the national-customer base of the
Corporation's business, that the restrictions set forth in this Paragraph
10 shall apply to Executive within the territory of the United States of
America. It is expressly understood and agreed that although Executive and
the Corporation consider the restriction contained in the Paragraph 10 to
be reasonable, if a final judicial determination is made by a court of
competent jurisdiction that the time or territory or any other restriction
contained in this Agreement
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is an unenforceable restriction against Executive, the provisions of this
Agreement shall not be rendered void but shall be deemed amended to apply
as to such maximum time and territory and to such maximum intent as such
court may judicially determine or indicate to be enforceable.
Alternatively, if any court of competent jurisdiction finds that any
restriction contained in this Agreement is unenforceable, and such
restriction cannot be amended so as to make it enforceable, such finding
shall not affect the enforceability of any of the other restrictions
contained herein; provided, however that the provisions of this Paragraph
10 shall not apply if Executive is terminated without Cause or Executive
terminates for Good Reason.
(i) The failure of Executive to abide by the provisions of this
Paragraph 10 shall be deemed a material breach of this Agreement. The
primary purpose of the covenant not to compete is the Corporation's
legitimate interest in protecting its economic welfare and business
goodwill. The Corporation and the Executive further agree that this
covenant shall in no way be construed as a mere limitation on competition
nor shall it be construed as a restraint on Executive's right to engage in
a common calling.
11. PROPRIETARY INFORMATION. Executive agrees that at all times during
the Term of this Agreement and after Executive is no longer employed by the
Corporation, Executive shall not use for her personal benefit, or disclose,
communicate or divulge to, or use for the direct or indirect benefit on any
person, firm, association or company other than the Corporation, any Proprietary
Information. "Proprietary Information" means information relating to the
properties, prospects, products, services or operations of the Corporation or
any direct or indirect affiliate thereof that is not generally known, is
proprietary to the Corporation or such affiliate and is made known to Executive
or learned or acquired by Executive while in the employ of the Corporation,
including, by way of illustration, but not limitation, information concerning
trade secrets, processes, structures, formulae, data and know-how, improvements,
inventions, product concepts, techniques, marketing plans, strategies,
forecasts, customer lists and information about the Corporation's employees
and/or consultants (including, without limitation, the compensation, job
responsibility and job performance of such employees and/or consultants).
However, Proprietary Information shall not include (i) at the time of disclosure
to Executive such information that was in the public domain or later entered the
public domain other than as result of a beach of an obligation herein; or (ii)
subsequent to disclosure to Executive, Executive received such information form
a third party under no obligation to maintain such information in confidence,
and the third party came into possession of such information other than as a
result of a breach of an obligation herein. All materials or articles of
information of any kind furnished to Executive by the Corporation or developed
by Executive in the course of her employment thereunder are and shall remain the
sole property of the Corporation; and if the Corporation requests the return of
such information at any time during, upon or after the termination of
Executive's employment hereunder, Executive shall immediately deliver the same
to the Corporation.
12. OWNERSHIP OF PROPRIETARY INFORMATION. Executive agrees that all
Proprietary Information shall be the sole property of the Corporation and its
assigns, and the Corporation and its assigns shall be the sole owner of all
licenses and other rights in connection with such proprietary Information. At
all times during the Term of this Agreement and after Executive is no longer
employed by the Corporation, Executive will keep the strictest confidence and
trust all Proprietary Information and will not use or disclose such Proprietary
Information, or anything relating to such information, without the prior written
consent of the Corporation, except as many be necessary in the ordinary course
of performing her duties under this Agreement.
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13. DOCUMENTS AND OTHER PROPERTY. All materials or articles of
information of any kind furnished to Executive in the course of her employment
hereunder are and shall remain the sole property of the Corporation; and if the
Corporation requests the return of such information at any time during, upon or
after the termination of Executive's employment hereunder, Executive shall
immediately deliver the same to the Corporation. Executive will not, without
the prior written consent of the Corporation, retain any documents, data or
property, or any reproduction thereof of any description, belonging to the
Corporation or pertaining to any Proprietary Information.
14. THIRD-PARTY INFORMATION. The Corporation from time to time receives
from third parties confidential or proprietary information subject to a duty on
the Corporation's part to maintain the confidentiality of such information and
to use it only for certain limited purposes ("Third-party Information"). At all
times, until after the later of (a) the Expiration Date, (b) the fifth
anniversary of the Date of Termination or (c) the period of time the Corporation
must maintain the Third-Party Information as confidential, Executive will hold
Third-Party Information in the strictest confidence and will not disclose or use
Third-Party Information except as permitted by the agreement between the
Corporation and such third party.
15. INTELLECTUAL PROPERTY. Any and all improvements, inventions, designs,
ideas, works of authorship, copyrightable works, discoveries, trademarks,
copyrights, trade secrets, formulae, processes, techniques, know-how, and data,
whether or not patentable (collectively "Products"), made or conceived or
reduced to practice or learned by Executive, either along or jointly with
others, during the period of Executive's employment (whether or not during
normal working hours) that are related to or useful in the actual or anticipated
business of the Corporation, or result from tasks assigned Executive by the
Corporation or result from Executive's use of premises or equipment owned,
leased, or contracted for by the Corporation (a) during the period of this
Agreement, or (b) within a period of one year after the Date of Termination,
which may be directly or indirectly useful in, or relate to, the business of the
Corporation, shall be promptly and fully disclosed by Executive to the Board
and, if such intellectual property was made, developed or created pursuant to
Executive's employment hereunder, such intellectual property shall be the
Corporation's exclusive property as against Executive, and Executive shall
promptly deliver to an appropriate representative of the Corporation as
designated by the Board all papers, drawings, models, data and other material
relating to any invention made, developed or created by him as aforesaid.
Executive shall, at the request of the Corporation and without any payment
therefor, execute any documents necessary or advisable in the opinion of the
Corporation's counsel or direct issuance of patents or copyrights to the
Corporation with respect to such Products as are to be the Corporation's
exclusive property as against Executive or to vest in the Corporation title to
such Products as against executive. The expense of securing any such patent or
copyright shall be borne by the Corporation. Executive shall be compensated, in
accordance with the Corporation's "Creative Awards" standard policy, for all
Products created or developed by the Executive either prior to her employment
(if delivered to the Corporation) or during the term of her Employment.
16. EQUITABLE RELIEF. Executive acknowledges that, in view of the nature
of the business in which the Corporation is engaged, the restrictions contained
in paragraphs 10 through 15, inclusive (the "Restrictions") are reasonable and
necessary in order to protect the legitimate interest of the Corporation, and
that any violation thereof would result in irreparable injuries to the
Corporation, and Executive therefor further acknowledges that, if Executive
violates, or threatens to violate, any of the Restrictions, the Corporation
shall be entitled to obtain from any court of competent jurisdiction, without
the posting of any bond or other security, preliminary and permanent injunctive
relief as well as damages and an equitable accounting of all earnings, profits
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and other benefits arising from such violation, which rights shall be cumulative
and in addition to any other rights or remedies in law or equity to which the
Corporation may be entitled.
17. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the heirs and representatives of Executive and the successors and
assigns of the Corporation. The Corporation shall require any successor
(whether direct or indirect, by purchase, merger, reorganization, consolidation,
acquisition of property or stock, liquidation or otherwise) to all or a
significant portion of its assets, by agreement in form and substance
satisfactory to Executive, expressly to assume and agree to perform this
Agreement in the same manner and to the same extent that the Corporation would
be required to perform this Agreement if no such succession had taken place.
Regardless whether such agreement is executed, this Agreement shall be binding
upon any successor of the Corporation in accordance with the operation of law
and such successor shall be deemed the "Corporation," for purposes of this
Agreement.
18. NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered by hand or mailed within the continental United States by first-class
certified mail, return receipt requested, postage prepaid, addressed as follows:
(a) if to the Board or the Corporation, to:
Intercell International Corporation
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Attention: Board of Directors
(b) if to Executive:
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Such addresses may be changed by written notice sent to the other party at the
last recorded address of that party.
19. ARBITRATION OF ALL DISPUTES.
(a) Any controversy or claim arising out of or relating to this
Agreement or the breach thereof (including the arbitrability of any
controversy or claim), shall be settled by arbitration in the City of
Denver in accordance with the laws of the State of Colorado by three
arbitrators, one of whom shall be appointed by the Corporation, one by
Executive and the third of whom shall be appointed by the first two
arbitrators. If the first two arbitrators cannot agree on the appointment
of a third arbitrator, then the third arbitrator shall be appointed by the
American Arbitration Association. The arbitration shall be conducted in
accordance with the rules of the American Arbitration Association, except
with respect to the selection of arbitrators which shall be as provided in
this paragraph 19. The cost of any arbitration proceeding hereunder shall
be borne equally by the Corporation and Executive. The award of the
arbitrators shall be binding upon the parties. Judgment upon the award
rendered by the arbitrators may be entered in any court having jurisdiction
thereof.
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(b) If it shall be necessary or desirable for Executive to retain
legal counsel and incur other costs and expenses in connection with the
enforcement of any or all of her rights under this Agreement, and provided
that Executive substantially prevails in the enforcement of such rights,
the Corporation shall pay (or Executive shall be entitled to recover from
the Corporation, as the case may be) Executive's reasonable attorneys' fees
and costs and expenses in connection with the enforcement of her rights
including the enforcement of any arbitration award.
20. NO ASSIGNMENT. Except as otherwise expressly provided herein, this
Agreement is not assignable by any party and no payment to be made hereunder
shall be subject to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance or other charge.
21. EXECUTION IN COUNTERPARTS. This Agreement may be executed by parties
hereto in two or more counterparts, each of which shall be deemed to be an
original, but all such counterparts shall constitute one and the same
instrument. The facsimile signature of any party to this Agreement shall be
considered an original signature of such person.
22. JURISDICTION AND GOVERNING LAW. Jurisdiction over disputes with
regard to this Agreement shall be exclusively in the courts of the State of
Colorado, and this Agreement shall be construed and interpreted in accordance
with and governed by the laws of the State of Colorado, other than the conflict
of laws provisions of such laws.
23. SEVERABILITY. If any provision of this Agreement shall be adjudged by
any court of competent jurisdiction to be invalid or unenforceable for any
reason, such judgment shall not affect, impair or invalidate the remainder of
this Agreement.
24. ENTIRE AGREEMENT. This Agreement embodies the entire agreement of the
parties hereof, and supersedes all other oral or written agreements or
understandings between them regarding the subject matter hereof. No change,
alteration or modification hereof may be made except in a writing, signed by
each of the parties hereto.
25. HEADINGS DESCRIPTIVE. The headings of the several paragraphs of this
Agreement are inserted for convenience only and shall not in any way affect the
meaning or construction of any of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
INTERCELL INTERNATIONAL CORPORATION
By: ________________________________
EXECUTIVE
By: _________________________________
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