1
EXHIBIT 10.35
BIOPURE CORPORATION
EMPLOYEE AGREEMENT CONCERNING PROTECTION OF
COMPANY PROPERTY AND THE ARBITRATION
OF LEGAL DISPUTES
AGREEMENT dated as of _____________________________, 1999, by and between
(the "Employee") and Biopure Corporation (the "Company").
INTRODUCTION. The principal purpose of this Agreement is to acknowledge
certain of the Employee's responsibilities relating to the protection of
confidential information and inventions and protection of the business of the
Company from competition for limited periods. Since these matters are vital to
the preservation and development of the Company's business, both the Company and
its employees have a common interest and responsibility in carrying out this
Agreement.
In this Agreement, the Employee acknowledges, among other things, that any
innovations, inventions, or discoveries which are made by the Employee in
connection with his(1) employment, are the exclusive property of the Company. In
addition, the Employee agrees to hold and maintain confidential certain secret,
confidential and/or proprietary information which is the property of the
Company, to return all such information to the Company when he leaves the employ
of the Company and not to compete with the Company during his employment and for
a limited period thereafter. The formal details of these and certain other
agreements are set forth below.
This Agreement further provides that with the exception of the Company's
right to seek injunctive relief and damages in court to restrain and remedy
violations of this Agreement, all legal disputes arising between the Employee
and the Company which cannot be resolved informally shall be determined through
final and binding arbitration in accordance with Biopure's "Mandatory Policy
Regarding Resolution of Legal Disputes," a copy of which is attached hereto, and
the terms of which are incorporated herein.
This Agreement is important because it confirms and creates certain
obligations which are binding on the Employee, and provides a mechanism for
resolving legal disputes between the Company and the Employee; it should be read
completely and carefully before being signed.
--------------
(1) Masculine pronouns are used solely for convenience of reference, and are
intended to have general application.
2
In consideration of, and as part of the terms of, the employment or
continued employment of the Employee by the Company, the compensation paid and
to be paid by the Company to the Employee, the entrusting to the Employee of
certain of the Company's trade secrets and proprietary information, and the
mutual covenants and promises set forth herein, the Employee and the Company
agree as follows:
1. CONFIDENTIAL INFORMATION. The Employee recognizes and acknowledges that
the Company's trade secrets, know-how and proprietary processes as they may
exist from time to time (including, without limitation, information regarding
methods, processes, synthesis techniques, protein and nucleic acid sequences,
purification techniques and assay procedures) as well as the Company's
confidential business plans and financial data, and confidential information
belonging to third parties which may from time to time be disclosed or made
available to the Company (together, "Confidential Information") are valuable,
special and unique assets of the Company's business. Without the Company's
express prior written consent, the Employee will not, at any time during or
after his employment by the Company, use any Confidential Information for
himself or others, or disclose or communicate any Confidential Information to
any third party for any purpose whatsoever.
2. EXTENT OF SERVICES; NON-COMPETITION. The Employee will devote his best
efforts, attention and energies to the Company's business. During the period of
employment and for five years thereafter, the Employee will not, directly or
indirectly, engage in (or own interest in any entity which engages in)
activities in competition with the business or potential business of the
Company. In addition, during the same period, the Employee will not, directly or
indirectly, solicit, hire, or attempt to persuade any employee or agent of, or
consultant to, the Company to terminate his relationship with the Company. The
time period provided for herein shall be extended for any period of time in
which the Employee is in violation of any of the provisions of this Section.
3. INVENTIONS. All discoveries, inventions, improvements (including, but
not limited to, all processes, technologies and procedures, ideas and
innovations, whether or not patentable or copyrightable including all data and
records pertaining thereto), which the Employee may invent, discover, originate,
make or conceive during the term of his employment and for a period of six
months thereafter, either alone or with others and whether or not during working
hours or by the use of facilities of the Company, and which arise out of
research conducted by, for or under the direction of the Company or which relate
to, or are or may be likely be, useful in connection with the business of the
Company. The Employee will promptly and fully disclose Inventions to the
Company, and will promptly record Inventions in such form as the Company may
request. The Employee will assign to the Company all right, title and interest
to all Inventions reduced to writing, drawings or practice by or for the
Employee, or an assignee or successor, within six months after termination of
employment. This Agreement shall not be construed to limit in any way any "shop
rights" or other common law or contractual rights of the Company with respect to
any Inventions or Confidential Information, which the Company has or may have by
virtue of the Employee's employment or otherwise.
3
The Employee will execute upon the Company's request at any time, and at
the Company's expense, any applications, assignments and other documents that
the Company may deem necessary or desirable to protect or perfect its rights
(including any patent rights) in the Inventions, and will assist the Company, at
the Company's expense, in obtaining, defending, and enforcing its rights
therein, all without further compensation or payments to the Employee. The
Employee hereby appoints the Company his attorney-in-fact for purposes of
effecting any or all of the foregoing.
4. TERMINATION; RETURN OF DOCUMENTS. All originals, copies and summaries
of manuals, memorandums, notes, notebooks, records, reports, plans, drawings,
and other documents or items of any kind concerning any matters affecting or
relating to the present or potential business of the Company, whether or not
they contain Confidential Information, are and shall continue to be the property
of the Company, and all of such documents or items in the possession or under
the control of the Employee will be delivered to the Company by the Employee
immediately upon termination of his employment.
5. FREEDOM TO CONTRACT, The Employee represents that he is free to enter
into this Agreement, that he has not and will not become subject to any
agreement in conflict with this Agreement, and that he will not disclose to the
Company or use for the Company's benefit any trade secrets or confidential
information which is the property of another party.
6. RESOLUTION OF LEGAL DISPUTES THROUGH BINDING ARBITRATION. Any legal
dispute arising between the Employee and the Company (other than a claim by the
Company that the Employee has committed an actual or threatened breach, default
or violation of the provisions set forth in paragraphs 1 through 4 hereof),
which legal dispute or claim cannot be resolved informally, shall be resolved
through final and binding arbitration in accordance with the Employment Dispute
Resolution Rules of the American Arbitration Association in effect as of
November 1, 1993, as amended by Biopure's "Mandatory Policy Regarding Resolution
of Legal Disputes." "Legal dispute" when applied to an employee claim means a
claim by an employee that Biopure Corporation or one of its agents has breached
a legal obligation to the employee by violating a statute, regulation or common
law obligation applicable in the employment relationship. Nothing in this
Agreement shall be construed to alter the nature of the employment relationship
between the Company and the Employee, or to confer on the Employee any right of
continued employment for a particular term of time or to require cause for the
termination of the employment relationship.
7. ENFORCEMENT. The Employee agrees and acknowledges that the Company will
suffer irreparable injury and damage and cannot be reasonably or adequately
compensated in monetary damages for the loss by the Company of its benefits or
rights under this Agreement as the result of a breach, default or violation by
the Employee of his obligations under paragraph 1 through 4, hereunder.
Accordingly, the Company shall be
4
entitled, in addition to all other remedies which may be available equitable
relief in any court of competent jurisdiction to prevent or otherwise restrain
or terminate any actual or threatened breach, default or violation by the
Employee of any provision contained in paragraphs 1 through 4 hereof or to
enforce any such provision.
8. MISCELLANEOUS. This Agreement shall inure to the benefit of and be
binding upon the parties' successors, assigns and legal representatives,
provided, however, that the Employee's obligations under this Agreement may not
be assigned. This Agreement may be executed in two or more counterparts, all of
which together shall constitute a single agreement. This Agreement together with
the Company's "Mandatory Policy Regarding Resolution of Legal Disputes," which
is incorporated herein by reference, constitute the sole and entire agreement
and understanding of the parties with respect to the subject matter hereof. No
prior or contemporaneous agreement, whether written or oral, shall be construed
to change, amend, alter, repeal or invalidate this Agreement. A waiver by one
party of a breach of this Agreement by the other party shall not be construed as
a waiver of any subsequent or similar breach. This Agreement may be amended or
terminated only by written agreement of both parties hereto.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the date first
written above as a sealed instrument to be governed by the laws of the
Commonwealth of Massachusetts.
EMPLOYEE: COMPANY:
BIOPURE CORPORATION
____________________________________ By:_________________________________
(Signature) Title:______________________________
____________________________________
(Print Name)