EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") between Vadim Babenko, residing at
7501 Heatherton Lane, Potomac, MD 20854, ("Employee"), and INFORMAX, INC., a
Delaware corporation with offices at 6010 Executive Boulevard, 10th floor, North
Bethesda, Maryland 20852 ("InforMax" or the "Company") is made effective as of
July 14, 2000 (the "Effective Date") and sets forth the terms and conditions of
Employee's continued employment by InforMax.
WITNESSETH
WHEREAS, Employee is presently employed by InforMax; and
WHEREAS, InforMax believes that it is in the best interest of InforMax to
assure the continued services of Employee on behalf of InforMax under the terms
and conditions set forth herein; and
NOW THEREFORE, in consideration of the premises and of the mutual covenants
and conditions contained in this Agreement, the parties hereto, intending to be
legally bound, agree as follows:
1. EMPLOYMENT. . Informax hereby employs Employee and Employee hereby
accepts continued employment with Informax upon the terms and conditions set
forth in this Agreement. Employee's principal titles and responsibilities shall
be that of Chief Technology Officer. Employee's sole duties and responsibilities
in the Company shall be to participate in the day-to-day operations of software
development for the Company and to supervise software developers and programmers
of the Company. It is expressly understood that Employee shall not have
policy-making functions or authority in the Company in carrying out his duties
and shall not participate in management of the Company other than as expressly
set forth in this paragraph. Employee shall report to and be directed by the
Chief Executive Officer ("CEO") with respect to his duties and responsibilities.
Both Employee and Informax reserve the right to change Employee's job
responsibilities and title on a mutually agreeable basis should that be
desirable in the future.
2. TERM OF AGREEMENT. The term of this Agreement shall commence on the
Effective Date, and, except as otherwise provided herein, shall terminate two
(2) years thereafter. The Agreement shall automatically renew for additional
terms of one (1) year unless, not less than ninety (90) days before the next
termination date of the Agreement, either party provides notice in writing to
the other that it does not intend to renew the Agreement.
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3. COMPENSATION.
(a) Base Salary. InforMax shall pay, and Employee shall accept, during the
term of this Agreement, as compensation for services rendered hereunder an
annual salary of $285,000 payable in semi-monthly payments, with increases and
bonuses annually at the discretion of the CEO.
(b) Benefit Plans. Employee shall be entitled to participate in such
benefit plan(s) of InforMax now in existence or which may hereafter during the
term of this Agreement become effective for Senior Executives of InforMax.
Nothing in this Section 3(c) shall be deemed to prevent InforMax from altering
or abolishing any of such plans or benefits provided that all such Senior
Executives are treated equally.
(c) Vacation. During the term of this Agreement, Employee shall be entitled
to a minimum of three (3) weeks paid vacation in accordance with the established
policy of InforMax, or such other greater number of days pursuant to an amended
policy in effect at the relevant time. Employee also shall be entitled to all
paid holidays and personal days given by InforMax.
(d) Expenses. InforMax shall promptly pay or reimburse Employee upon
submission of vouchers or receipts, and such other documentation as InforMax may
request, for all reasonable out-of-pocket expenses for entertainment, travel,
meals, hotel accommodations and the like, incurred by him that are reasonably
related to the performance of his duties.
(e) Withholding. Employee acknowledges that InforMax may withhold from
amounts payable to Employee under this Agreement with respect to certain income,
unemployment and social security taxes required to be withheld from the wages of
employees under applicable Federal, State, and local law. No other taxes, fees,
impositions, duties or other charges of any kind shall be deducted or withheld
from amounts payable hereunder, unless otherwise required by law or agreed to by
Employee.
4. TERMINATION OF EMPLOYMENT. Notwithstanding any provisions herein to the
contrary, Employee's employment with InforMax may be terminated prior to the
completion of the term described in Section 2 of this Agreement, subject to the
following terms and conditions:
(a) Termination for Cause. InforMax may terminate Employee's employment at
any time for Cause. For the purpose of this Agreement, the term "Cause" shall
mean Employee's: (1) willful misconduct; (2) gross negligence or incompetence in
the performance of his duties; (3) willful violation of any law, rule or
regulation (other than traffic violations or similar offenses) or final
cease-and-desist order in performance of his duties; or (4) material
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breach of any provision of this Agreement which breach continues for more than
five (5) days after receiving written notice from InforMax.
(b) Termination Without Cause upon a Change of Control. InforMax shall pay
Employee a sum equal to his annual base salary at the time of a "Change in
Control" upon termination by InforMax of Employee's employment without Cause
within 180 days of a "Change in Control". For the purposes of this Section a
"Change of Control" of the Company shall be deemed to have occurred if (i) any
persons or entities other than a person currently a beneficial owner of the
Company's securities becomes, after the date hereof, the beneficial owner of
securities of the Company representing 50% of more of the combined voting power
of the Company's then outstanding securities, or (ii) the Company sells all or
substantially all or substantially all of its assets.
(c) Termination Without Cause other than upon a Change of Control. InforMax
shall pay Employee a lump-sum cash payment in an amount equal to his annual
salary upon termination by InforMax of Employee's employment without Cause other
than as provided in Section 4(b) above. The severance payment shall be paid to
Employee in cash as promptly as practicable, but in no event later than thirty
(30) days following the termination of his employment.
(d) Voluntary Termination by Employee without Cause. Any termination of
Employee's employment by resignation, retirement or any other action of Employee
shall be deemed to be a "Voluntary Termination." Employee shall give InforMax
thirty (30) days notice prior to the effective time of a Voluntary Termination.
(e) Payment Upon Termination For Cause or Voluntary Termination. InforMax's
obligation to pay Employee any and all compensation and benefits shall cease in
the event of a Termination for Cause or a Voluntary Termination, and InforMax
shall not be liable for any further payments to Employee hereunder except for
accrued salary, accrued vacation days, reimbursement of appropriate expense
vouchers, applicable indemnification obligations and other benefit continuation
obligations imposed by law.
5. DEVOTION OF TIME. Except for vacations as provided herein and absences
due to temporary illness or family emergencies, Employee agrees to devote his
full business time, best efforts and undivided attention and energies during the
term of this Agreement to the performance of his duties and to advance
InforMax's interests. During the term of this Agreement, Employee shall not,
without the prior written approval of the Board of Directors, or its designee,
be engaged in any other business activity which, in the reasonable judgment of
the Board of Directors, conflicts with the duties of Employee, whether or not
such business activity is pursued for gain, profit, or other pecuniary
advantage; but this restriction shall not be construed as preventing Employee
from investing his assets in such form or manner as will not
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require the performance of services of Employee in the operations of the affairs
of the enterprises or companies in which said investments are made.
Notwithstanding the foregoing, services, which are neither substantial nor
significant, individually or in the aggregate, shall be permitted with respect
to investments of Employee provided that they shall not have an adverse effect
on Employee's duties hereunder.
6. NON-COMPETITION; NON-SOLICITATION; NON-HIRE. Employee agrees that during
the term of this Agreement and for a period of two years after termination of
this Agreement:
a) Employee shall not, directly, indirectly or in concert with any
other person or entity (whether for or on behalf of Employee or for any
entity in which Employee shall have a direct or indirect interest (or any
subsidiary or affiliate of any such entity), whether as a proprietor,
partner, co-venturer, financier, investor or stockholder, director,
officer, employer, employee, consultant, servant, agent, representative or
otherwise), solicit, attempt to solicit, service or attempt to service, any
entity or individual who (a) is a customer of InforMax at the time
Employee's employment is terminated, (b) was a customer of InforMax during
the one (1)-year period preceding the date Employee's employment is
terminated or (c) is, at the time Employee's employment is terminated, a
prospective customer of InforMax.
b) Employee will not, directly or indirectly, on Employee's behalf or
in the service or on behalf of others, render or be retained to render
services whether as an officer, partner, trustee, consultant, or employee,
for any business engaged in the Same Business as InforMax including, but
not limited to, any customer of InforMax for whom Employee has provided
services during Employee's employment with InforMax. As used in this
Agreement, the term "Same Business" means any business in which InforMax is
engaged at the time of termination or any business in which the Board of
Directors has given the management of InforMax the approval to engage in as
of the date of termination.
c) Employee shall not, directly or indirectly, hire or engage or
attempt to hire or engage any individual who shall have been a consultant
or employee of InforMax as of the date Employee's employment is terminated
or at any time during the one (1)- year period prior to such date, whether
for or on behalf of Employee or for any entity in which Employee shall have
a direct or indirect interest (or any subsidiary or affiliate of any such
entity), whether as a proprietor, partner, co-venturer, financier, investor
or stockholder, director, officer, employer, employee, consultant, servant,
agent, representative or otherwise.
d) The business of InforMax is international in scope and the
restrictions of this paragraph shall accordingly apply worldwide.
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7. NONDISCLOSURE OF PROPRIETARY INFORMATION. Both during and after the term
of this Agreement, Employee agrees to preserve and protect the confidentiality
of Proprietary Information as defined in Section 8 below. In addition, Employee
will not (i) disclose or disseminate Proprietary Information to any third party,
including employees of InforMax without a need to know, or (ii) use Proprietary
Information for his own benefit or for the benefit of any third party. If
Employee receives information with uncertain confidentiality, he agrees to treat
the information as Proprietary Information until management has verified to him
that such information is neither confidential nor proprietary. Notwithstanding
the foregoing limitations, Employee shall not be required to keep confidential
pursuant to this Section 7 any Proprietary Information that: (i) is known or
available through other lawful sources, or (ii) is or becomes publicly known or
generally known in the industry through no fault of Employee or his agents, or
(iii) is required to be disclosed pursuant to any statutes, laws, rules,
regulations, ordinances, codes, directives, writs, injunctions, decrees,
judgments, and orders of any governmental body (provided the Company is given
reasonable prior notice).
8. DEFINITION OF PROPRIETARY INFORMATION. Proprietary Information is
defined as information regarding InforMax's current and planned business
activities, including (i) information which relates to InforMax's actual or
anticipated products, software, research inventions, processes, techniques,
designs or other technical data; (ii) information regarding administrative,
financial or marketing activities of InforMax; (iii) information received from
InforMax clients and other third parties; and (iv) any materials or documents
containing any of the above information. Proprietary Information does not
include information which is or becomes publicly available without a breach of
this Agreement by Employee.
9. RETURN OF PROPRIETARY INFORMATION. Upon termination of his employment
with InforMax, Employee agrees to deliver to InforMax all Proprietary
Information and any and all documents and other tangibles including diskettes
and other electronic or other storage media containing any Proprietary
Information in whole or part.
10. TRADE SECRETS. Employee understands and agrees that the covenants,
restrictions and prohibitions against disclosure of Proprietary Information set
forth in this Agreement are in addition to, and not in lieu of, any rights or
remedies which InforMax may have available pursuant to the laws of any
jurisdiction or at common law to prevent disclosure of trade secrets or
proprietary information, and the enforcement by InforMax of its rights and
remedies pursuant to this Agreement shall not be construed as a waiver of any
other rights or available remedies which it may possess in law or equity absent
this Agreement.
11. OWNERSHIP OF WORKS. During the time Employee is employed by InforMax,
InforMax shall own all rights, including, without limitation, all trade secrets,
patents and copyrights, in and to the following works created by Employee
whether created on InforMax's
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premises or at some other location: (i) works which relate to or are derived
from the actual or anticipated business of InforMax and (ii) works which result
from or are derived from any task assigned to Employee or work performed by
Employee for InforMax (collectively, the "Works"). InforMax shall own such Works
even if created outside normal working hours and regardless of whether
Employee's own equipment or InforMax's equipment was used to create the Works.
Such Works shall include program codes and documentation. To the extent that any
such Works do not qualify as works made for hire under U.S. copyright law,
pursuant to this Agreement Employee hereby grants an irrevocable assignment to
InforMax of the ownership of, and all right, title and interest of copyright in,
such Works. Employee agrees to give InforMax or its designees all assistance
reasonably required to perfect such rights provided that following termination
of this Agreement, InforMax shall reimburse Employee for his reasonable time and
expense in assisting with such matters.
12. INVENTIONS. If Employee individually or jointly makes or conceives of
any invention, technique, process, or other know-how, whether patentable or not,
in the course of performing services for InforMax, which relates in any manner
to the actual or anticipated business of InforMax or results from any task
assigned to Employee or work performed by Employee for InforMax (collectively,
"Inventions"), Employee will and hereby does assign to InforMax his entire
right, title and interest in such Inventions. Employee will disclose any such
Inventions to an officer of InforMax and will, upon request, promptly sign a
specific assignment of title to InforMax, and do anything else reasonably
necessary to enable InforMax to secure patents, trade secret or any other
proprietary rights in the United States or foreign countries, provided that
following termination of this Agreement, InforMax shall reimburse Employee for
his reasonable time and expense in assisting with such matters. Any Inventions
Employee has made or conceived before the effective date of this Agreement are
listed and described on Exhibit A attached hereto. These items are excluded from
this Agreement.
13. ASSIGNABILITY. This Agreement and all rights hereunder are personal to
Employee and shall not be assignable except in accordance with the laws of
descent and distribution, and any purported assignment in violation thereof
shall not be valid or binding on InforMax. This Agreement, however, shall inure
to the benefit of, and be binding upon each successor of InforMax, whether
resulting from a merger or consolidation or to the recipient of all or
substantially all of the assets of InforMax (and such successor shall thereafter
be deemed the same as InforMax for purposes of this Agreement). This Agreement
shall in no way restrict InforMax's right to merge, consolidate, sell all or
substantially all of its assets or engage in any business combination or other
transaction of any nature.
14. ENTIRE AGREEMENT. This Agreement, including Exhibit A, supersedes and
replaces any and all present, written or oral, agreements of employment between
the parties hereto, and all such agreements are hereby deemed canceled, revoked,
and of no further force or effect.
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15. ACKNOWLEDGMENT. Employee and InforMax consider the restrictions
contained in Section 6 of this Agreement reasonable, and it is the desire of
both parties that such restrictions and the other provisions of this Agreement
be enforced to the fullest extent permissible under the laws and the public
policies applied in each jurisdiction in which enforcement is sought.
Accordingly, in the event that any such restriction or provision shall be found
to be void or invalid but would be valid if some part thereof were deleted or
the period or area of application reduced, such restriction or provisions shall
apply with such modification as shall be necessary to make it valid and
effective. A deletion resulting from any adjudication shall occur only with
respect to the operation of the provision or a portion thereof affected in the
particular jurisdiction in which such adjudication is made, and each court or
other body having jurisdiction with respect to the enforcement of the provisions
of Section 6 of this Agreement are hereby empowered to modify by reduction,
rather than deletion, the time periods or other restrictions referred to
therein.
16. MODIFICATION. This Agreement constitutes the entire agreement regarding
employment of Employee by InforMax and there are no terms other than those
stated herein. No variation hereof shall be deemed valid unless in writing and
signed by the parties hereto, and no discharge of the terms hereof shall be
deemed valid unless by full performance by the parties hereto and by a writing
signed by the parties hereto. No waiver by either party of any provision or
condition of this Agreement by him or it to be performed shall be deemed a
waiver of similar or dissimilar provisions and conditions at the same time or
any prior or subsequent time.
17. NOTICES. Any notice, statement, report, request or demand required or
permitted to be given by this Agreement shall be in writing, and shall be
sufficient if addressed and sent by certified mail, return receipt requested, to
the parties at the addresses set forth above or at such other place that either
party may designate by notice to the other.
18. EQUITABLE RELIEF/PAYMENT OF FEES. The parties to this Agreement agree
that each of them shall be entitled, in addition to any other remedies they may
have under this Agreement, at law, or otherwise, to immediate injunctive and
other equitable relief to prevent or curtail any breach of this Agreement. .
19. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Maryland (regardless of the laws that might otherwise govern under
applicable principles or conflicts of law) as to all matters, including but not
limited to matters of validity, construction, effect, performance and remedies.
20. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but which together shall constitute one and
the same instrument.
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22. LIMITED AGREEMENT. This Agreement is intended by the parties to govern
only those rights and obligations described herein, and it is not the parties'
intent to abrogate any other rights in favor of Employee or InforMax provided
under Federal or State Law.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
set forth below.
InforMax, Inc.
By: /s/ Alexander Titomirov
--------------------------------
Alex Titomirov
Chairman, CEO
Date:
--------------------------------
Employee
By: /s/ Vadim Babenko
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Vadim Babenko
Date: 7/14/00
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