Exhibit 10.11.1
MEDI-JECT CORPORATION
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of May 1, 2000, by and between Medi-Ject
Corporation, a Minnesota corporation (the "Company"), and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, an
individual resident of ▇▇▇▇▇▇ County in the State of Minnesota ("Executive").
WHEREAS, the Company wishes to employ Executive to render services for the
Company on the terms and conditions set forth in this Agreement, and Executive
wishes to be retained and employed by the Company on such terms and conditions.
NOW, THEREFORE, in consideration of the premises and the respective
undertakings of the Company and Executive set forth below, the Company and
Executive agree as follows:
1. Employment. The Company hereby employs Executive, and Executive accepts
----------
such employment and agrees to perform services for the Company, for the
period and upon the other terms and conditions set forth in this Agreement.
2. Term. Unless terminated at an earlier date in accordance with Section 9 of
----
this Agreement, the term of Executive's employment hereunder shall be for a
period commencing on the date of this Agreement and continuing as set forth
in the Term and Compensation Addendum applicable to each year.
3. Position and Duties.
-------------------
3.01 Service with Company. During the term of this Agreement, Executive
-------------------
agrees to perform such reasonable employment duties as the Board of
Directors of the Company shall assign to him from time to time. As of
the date of this Agreement, Executive has been elected to serve as
Executive Vice President and Chief Technology Officer.
3.02 Performance of Duties. Executive agrees to serve the Company
---------------------
faithfully and to the best of his ability and to devote his full
time, attention and efforts to the business and affairs of the
Company during the term of this Agreement. Executive hereby confirms
that, other than as set forth herein, he is under no contractual
commitments inconsistent with his obligations set forth in this
Agreement, and that for the term of this Agreement, he will not
render or perform services for any other corporation, firm, entity or
person that are inconsistent with the provisions of this Agreement.
4. Compensation.
------------
4.01 Salary. Compensation shall be set by the Board of Directors subject
------
to adjustment annually by same Board of Directors and subject to any
additional incentive(s) and/or bonus(es) approved by same Board of
Directors as set out annually in the Term and Compensation Addendum
applicable to each year.
4.02 Participation in Benefit Plans. Executive shall also be entitled to
------------------------------
participate in all employee benefit plans or programs (including
vacation time) of the Company to the extent that his position, title,
tenure, salary, age, health and other qualifications make him
eligible to participate. The Company does not guarantee the adoption
or continuance of any particular employee benefit plan or program
during the term of this Agreement, and Executive's participation in
any such plan or program shall be subject to the provisions, rules
and regulations applicable thereto.
4.03 Expenses. The Company will pay or reimburse Executive for all
--------
reasonable and necessary out-of-pocket expenses incurred by him in
the performance of his duties under this Agreement, subject to the
presentment of appropriate vouchers in accordance with the Company's
normal policies for expense verification.
5. Confidential Information. Except as permitted or directed by the Company's
------------------------
Board of Directors, during the term of this Agreement and for a period of
five years thereafter, Executive shall not divulge, furnish or make
accessible to anyone or use in any way (other than in the ordinary course
of the business of the Company) any confidential or secret knowledge or
information of the Company which Executive has acquired or become
acquainted with or will acquire or become acquainted with prior to the
termination of the period of his employment by the Company (including
employment by the Company or any affiliated companies prior to the date of
this Agreement), whether developed by himself or by others, concerning any
trade secrets, confidential or secret designs, processes, formulae, plans,
devices or material (whether or not patented or patentable) directly or
indirectly useful in any aspect of the business of the Company, any
customer or supplier lists of the Company, any confidential or secret
development or research work of the Company, or any other confidential
information or secret aspects of the business of the Company. Executive
acknowledges that the above-described knowledge or information constitutes
a unique and valuable asset of the Company and represents a substantial
investment of time and expense by the Company and its predecessors, and
that any disclosure or other use of such knowledge or information other
than for the sole benefit of the Company would be wrongful and would cause
irreparable harm to the Company. Both during and after the term of this
Agreement, Executive will refrain from any acts or omissions that would
reduce the value of such knowledge or information to the Company. The
foregoing obligations of confidentiality, however, shall not apply to any
knowledge or information which is now published or which subsequently
becomes generally publicly known in the form in
which it was obtained from the Company, other than as a direct or indirect
result of the breach of this Agreement by Executive.
6. Ventures. During the term of this Agreement, it is anticipated that
--------
Executive will be engaged in or associated with the planning and
implementing of projects, programs and ventures involving the Company and
third parties, and Executive hereby expressly acknowledges and agrees that
all rights in such projects, programs and ventures shall belong to the
Company. Except as formally approved by the Company's Board of Directors,
Executive shall not be entitled to any interest in such projects, programs
and ventures or to any commission, finder's fee or other compensation in
connection therewith, other than the salary and compensation to be paid to
Executive as provided in this Agreement, described in Section 4.01 of this
Agreement.
7. Noncompetition and Nonsolicitation Covenants.
--------------------------------------------
7.01 Agreement Not to Compete. Executive agrees that, during the term of
------------------------
his employment by the Company he shall not, directly or indirectly,
engage in competition with the Company in any manner or capacity
(e.g., as an advisor, principal, agent, partner, officer, director,
stockholder, employee, member of any association, or otherwise) in
any phase of the business that the Company is conducting during the
term of this Agreement, including the design, development,
manufacture, distribution, marketing, leasing or selling of
accessories, devices, or systems related to the products or services
being sold by the Company.
7.02 Geographic Extent of Covenant. The obligations of Executive under
-----------------------------
Section 7.01 shall apply to any geographic area in which the Company:
(a) has engaged in business during the term of this Agreement through
production, promotional sales or marketing activity, or
otherwise; or
(b) has otherwise established its goodwill, business reputation, or
any customer or supplier relations.
7.03 Limitation on Covenant. Ownership by Executive, as a passive
----------------------
investment, of less than one percent (1%) of the outstanding shares
of capital stock of any corporation listed on a national securities
exchange or publicly traded in the over-the-counter market shall not
constitute a breach of this Section 7.
7.04 Nonsolicitation and Noninterference. During the term of this
-----------------------------------
Agreement and for a period of two years thereafter, Executive shall
not:
(a) induce or attempt to induce any employee of the Company to leave
the employ of the Company, or in any way interfere adversely with
the relationship between any such employee and the Company;
(b) induce or attempt to induce any employee of the Company to work
for, render services to, provide advise to or supply confidential
business information or trade secrets of the Company to any third
person, firm or corporation; or
(c) induce or attempt to induce any customer, supplier, licensee,
licensor or other business relation of the Company to cease doing
business with the Company, or in any way interfere with the
relationship between any such customer, supplier, licensee,
licensor or other business relation and the Company.
7.05 Indirect Competition and Interference. Executive further agrees that,
-------------------------------------
during the term of this Agreement and, solely with respect to Section
7.04, the period covered by Section 7.04, he will not, directly or
indirectly, assist or encourage any other person in carrying out,
directly or indirectly, any activity that would be prohibited by the
above provisions of this Section 7 if such activity were carried out
by Executive, either directly or indirectly; and, in particular,
Executive agrees that he will not, directly or indirectly, induce any
employee of the Company to carry out, directly or indirectly, any
such activity.
8. Patent and Related Matters.
---------------------------
8.01 Disclosure and Assignment. Executive will promptly disclose in
-------------------------
writing to the Company complete information concerning each and every
invention, discovery, improvement, device, design, apparatus,
practice, process, method or product, whether patentable or not,
made, developed, perfected, devised, conceived or first reduced to
practice by Executive, either solely or in collaboration with others,
during the term of this Agreement, or within six months thereafter,
whether or not during regular working hours, relating either directly
or indirectly to the business, products, practices, or techniques of
the Company (hereinafter referred to as "Developments"). Executive,
to the extent that he has the legal right to do so, hereby
acknowledges that any and all of said Developments are the property
of the Company and hereby assigns and agrees to assign to the Company
any and all of Executive's right, title and interest in and to any
and all of such Developments. Without limiting the foregoing, any and
all original works of authorship which are created by Executive
(solely or jointly with others) within the scope of Executive's
employment and which are protectable by copyright law shall be deemed
"works made for hire," as that term is defined in the U.S. Copyright
Act (17 U.S.C. Section 101).
8.02 Future Developments. As to any future Developments made by Executive
-------------------
that relate to the business, products or practices of the Company and
that are first conceived or reduced to practice during the term of
this Agreement, or within six months thereafter, but that are claimed
for any reason to belong to an entity or person other than the
Company, Executive will promptly disclose the same in writing to the
Company and shall not disclose the same to others if the
Company, within twenty (20) days thereafter, shall claim ownership of
such Developments under the terms of this Agreement. If the Company
makes such claim, Executive agrees that, insofar as the rights (if
any) of Executive are involved, it will be settled by arbitration in
accordance with the rules of the American Arbitration Association.
The locale of the arbitration shall be Minneapolis, Minnesota (or
other locale convenient to the Company's principal executive
offices). If the Company makes no such claim, Executive hereby
acknowledges that the Company has made no promise to receive and hold
in confidence any such information disclosed by Executive.
8.03 Limitation on Sections 8.01 and 8.02. The provisions of Sections
------------------------------------
8.01 and 8.02 shall not apply to any Development meeting the
following conditions:
(a) such Development was developed entirely on Executive's own time;
(b) such Development was made without the use of any Company
equipment, supplies, facility or trade secret information;
(c) such Development does not relate:
(i) directly to the business of the Company; or
(ii) to the Company's actual or demonstrable anticipated
research;
(d) such Development does not result from any work performed by
Executive for the Company.
8.04 Assistance of Executive. Upon request and without further
-----------------------
compensation therefor, but at no expense to Executive, and whether
during the term of this Agreement or thereafter, Executive will do
all lawful acts, including, but not limited to, the execution of
papers and lawful oaths and the giving of testimony, that in the
opinion of the Company, its successors and assigns may be necessary
or desirable in obtaining, sustaining, reissuing, extending and
enforcing United States and foreign Letters Patent, including, but
not limited to, design patents, on any and all of such Developments,
and for perfecting, affirming and recording the Company's complete
ownership and title thereto, and to cooperate otherwise in all
proceedings and matters relating thereto.
8.05 Records. Executive will keep complete, accurate and authentic
-------
accounts, notes, data and records of all Developments in the manner
and form requested by the Company. Such accounts, notes, data and
records shall be the property of the Company, and, upon its request,
Executive will promptly surrender the same to it or, if not
previously surrendered upon its request or otherwise, Executive will
surrender the same, and all copies thereof, to the Company upon the
conclusion of his employment.
8.06 Obligations, Restrictions and Limitations. Executive understands that
-----------------------------------------
the Company may enter into agreements or arrangements with agencies
of the United States Government, and that the Company may be subject
to laws and regulations which impose obligations, restrictions and
limitations on it with respect to inventions and patents that may be
acquired by it or that may be conceived or developed by employees,
consultants or other agents rendering services to it. Executive
agrees that he shall be bound by all such obligations, restrictions
and limitations applicable to any such invention conceived or
developed by him during the term of this Agreement and shall take any
and all further action that may be required to discharge such
obligations and to comply with such restrictions and limitations.
9. Termination.
------------
9.01 Grounds for Termination. This Agreement shall terminate prior to the
-----------------------
expiration of the initial term set forth in Section 2 or any
extension thereof in the event that at any time during the initial
term or any extension thereof:
(a) Executive shall die;
(b) the Board of Directors of the Company shall determine that:
(i) Executive has become disabled;
(ii) Executive had breached this Agreement in any material
respect, which breach is not cured by Executive or is not
capable of being cured by Executive within thirty (30)
days after written notice of such breach is delivered to
Executive; or
(iii) Executive has engaged in willful and material misconduct,
including willful and material failure to perform his
duties as an officer or employee of the Company.
Notwithstanding any termination of this Agreement, Executive, in consideration
of his employment hereunder to the date of such termination, shall remain bound
by the provisions of this Agreement that specifically relate to periods,
activities or obligations upon or subsequent to the termination of Executive's
employment.
9.02 "Disability" Defined. The Board of Directors may determine that
-------------------
Executive has become disabled, for the purpose of this Agreement, in
the event that Executive shall fail, because of illness or
incapacity, to render services of the character contemplated by this
Agreement over a period of ninety (90) days during any one hundred
and eighty (180) day period. The existence or nonexistence of grounds
for termination because of disability shall be made in good faith by
the Board of Directors after notice in writing given to Executive at
least thirty (30) days prior to such determination. During such
thirty (30) day period, Executive
shall be permitted to make a presentation to the Board of Directors
for its consideration.
9.03 Surrender of Records and Property. Upon termination of his
---------------------------------
employment with the Company, Executive shall deliver promptly to the
Company all records, manuals, books, blank forms, documents, letters,
memoranda, notes, notebooks, reports, data, tables, calculations or
copies thereof, which are the property of the Company or which relate
in any way to the business, products, practices or techniques of the
Company, and all other property, trade secrets and confidential
information of the Company, including, but not limited to, all
documents which in whole or in part contain any trade secrets or
confidential information of the Company, which in any of these cases
are in his possession or under his control.
10. Miscellaneous.
--------------
10.01 Governing Law. This Agreement is made under and shall be governed by
-------------
and construed in accordance with the laws of the State of Minnesota.
10.02 Prior Agreements. This Agreement contains the entire Agreement of
----------------
the parties relating to the subject matter hereof and supersedes all
prior Agreements and understandings with respect to such subject
matter, and the parties hereto have made no Agreements,
representations or warranties relating to the subject matter of this
Agreement which are not set forth herein.
10.03 Withholding Taxes. The Company may withhold from any benefits payable
-----------------
under this Agreement all federal, state, city or other taxes as shall
be required pursuant to any law or governmental regulation or ruling.
10.04 Amendments. No amendment or modification of this Agreement shall be
----------
deemed effective unless made in writing and signed by the parties
hereto.
10.05 No Waiver. No term or condition of this Agreement shall be deemed to
---------
have been waived, nor shall there be any estoppel to enforce any
provisions of this Agreement, except by a statement in writing signed
by the party against whom enforcement of the waiver or estoppel is
sought. Any written waiver shall not be deemed a continuing waiver
unless specifically stated, shall operate only as to the specific
term or condition waived and shall not constitute a waiver of such
term or condition for the future or as to any act other than that
specifically waived.
10.06 Severability. To the extent any provision of this Agreement shall be
------------
invalid or unenforceable, it shall be considered deleted here from
and the remainder of such provision and of this Agreement shall be
unaffected and shall continue in full force and effect. In
furtherance and not in limitation of the foregoing, should the
duration or geographical extent of, or business activities covered
by,
any provision of this Agreement be in excess of that which is valid
and enforceable under applicable law, then such provision shall be
construed to cover only that duration, extent or activities which
may validly and enforceably be covered. Executive acknowledges the
uncertainty of the law in this respect and expressly stipulates that
this Agreement be given the construction which renders its
provisions valid and enforceable to the maximum extent (not
exceeding its express terms) possible under applicable law.
10.07 Assignment. This Agreement shall not be assignable, in whole or in
----------
part, by either party without the written consent of the other
party, except that the Company may, without the consent of
Executive, assign its rights and obligations under this Agreement to
any corporation, firm or other business entity with or into which
the Company may merge or consolidate, or to which the Company may
sell or transfer all or substantially all of its assets, or of which
50% or more of the equity investment and of the voting control is
owned, directly or indirectly, by, or is under common ownership
with, the Company. After any such assignment by the Company, the
Company shall be discharged from all further liability hereunder and
such assignee shall thereafter be deemed to be the Company for the
purposes of all provisions of this Agreement including this Section
10.
10.08 Injunctive Relief. Executive agrees that it would be difficult to
-----------------
compensate the Company fully for damages for any violation of the
provisions of this Agreement, including without limitation the
provisions of Sections 5, 7, 8 and 9.03. Accordingly, Executive
specifically agrees that the Company shall be entitled to temporary
and permanent injunctive relief to enforce the provisions of this
Agreement and that such relief may be granted without the necessity
of proving actual damages. This provision with respect to injunctive
relief shall not, however, diminish the right of the Company to
claim and recover damages in addition to injunctive relief.
IN WITNESS WHEREOF, Executive and the Company have executed this Agreement as of
the date set forth in the first paragraph.
MEDI-JECT CORPORATION EXECUTIVE
By: /s/ Franklin Pass /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------- -----------------------------
Franklin Pass ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: Chairman/CEO
TERM AND COMPENSATION ADDENDUM FOR 2000
TO AMEND EMPLOYMENT AGREEMENT DATED MAY 1, 2000,
AS OF MAY 1, 2000
THIS AGREEMENT, effective as of May 1, 2000, by and between Medi-Ject
Corporation, a Minnesota corporation (the "Company") and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, an
individual resident of the State of Minnesota (the "Executive"),
WHEREAS, the Company and the Executive are parties to an Employment Agreement
dated May 1, 2000 (the "Agreement"), and
PURSUANT to the approval of the Board of Directors on June 5, 2000, and
WHEREAS, the Company and the Executive each wish to agree to the following:
1. The Agreement term shall begin on May 1, 2000, and extend through and
include December 31, 2002.
2. Base compensation for year 2000 shall be $135,820.
3. A $25,000 cash bonus upon signing a development and distribution
agreement and/or product and technology rights agreement with either
Disetronic or Pharmacia & Upjohn.
4. A bonus payable upon closing a merger agreement with Permatec
comprising two (2) parts:
Part A: A $17,000 cash bonus upon closing of the merger agreement.
Subject bonus to be payable 25% at close of business on the
next business day following the closing day of subject merger
and 25% payable on the last business day of each of the next
three (3) successive calendar quarters.
If employee termination occurs, for any reason, prior to
completion of the payout schedule, as stated above, all
amounts are due and payable as of the termination date.
Part B: A 5,000 share stock option grant with grant date established
as closing date of subject merger described above.
All other terms of the Agreement and all amendments applicable thereto are to
remain in full force and effect.
AGREED:
MEDI-JECT CORPORATION: EXECUTIVE:
By: /s/ Franklin Pass /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------- --------------------------------
Franklin Pass, Chairman & CEO ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Dated: 5-01-00 Dated: 5/1/00
------------------------------- --------------------------