Exhibit 10.2
Delcath Systems, Inc.
EMPLOYEE CONFIDENTIALITY AND RESTRICTIVE
COVENANT AGREEMENT
AGREEMENT (“Agreement”) made this
day of
20
, between Delcath Systems, Inc., and its predecessors,
divisions, affiliates, successors, and assigns (the “Company”), and
, residing at
(“Employee”).
WHEREAS, the Company wishes to obtain reasonable protection of its confidential
business and technical information which it has developed, acquired and/or is or may be developed or acquired by the Company at substantial expenses, and
WHEREAS, the Company wishes to obtain reasonable protection against unfair competition during the Employees employment by the Company and following termination of the Employee’s employment by the
Company and to further protect against unfair use of its confidential business and technical information the Company desires to have Employee execute this Agreement, and
WHEREAS, the Employee is willing to execute this Agreement and grant the Company the benefits of the restrictive covenants contained herein.
For and in consideration of the continued employment of Employee by the Company and compensation and benefits paid to Employee and
hereafter to be paid to Employee by the Company, Employee agrees as follows:
|
|
1.
|
NO PRIOR CONFLICTING CONTRACTS
.
|
Employee represents that Employee’s employment or potential employment by the Company is not in violation of any contract or covenants to which Employee is a party with any employer, entity, or
person. Employee agrees not to use or disclose in Employee’s work with the Company any secret or confidential information of others, including prior employers, unless such information is rightfully possessed by the Company.
(a)
Confidential Information.
For purposes of this Agreement, the term “Confidential Information” means information that is not generally known to the public and that is used, developed, or obtained by the Company in connection with its
business, including, but not limited to, information, observations, and data obtained by Employee while employed by the Company thereof concerning (i) the business or affairs of the Company, (ii) products or services, (iii) fees,
costs, compensation, and pricing structures, (iv) designs, (v) specifications (including, but not limited to, supplier specifications); (vi) clinical trial data; (vii) analyses, (viii) drawings, photographs and reports,
(ix) computer software, including operating systems, applications, and program listings, (x) flow charts, manuals, and documentation, (xi) data or data bases, (xii) accounting and business methods, (xiii) inventions,
devices, new developments, methods and processes, whether patentable or unpatentable and whether or not reduced to practice, (xiv)
customers and clients and customer or client lists, (xv) other copyrightable works, (xvi) all production methods, processes, technology, and trade secrets, and (xvii) all similar
and related information in whatever form. Confidential Information will not include any information that has been published (other than a disclosure by Employee in breach of this Agreement) in a form generally available to the public prior to the
date Employee proposes to disclose or use such information. Confidential Information will not be deemed to have been published merely because individual portions of the information have been separately published, but only if all material features
comprising such information have been published in combination.
(b) Work Product.
For purposes of this Agreement, the
term “Work Product” means all inventions, innovations, improvements, technical information, systems, software developments, discoveries, methods, designs, processes, analyses, drawings, reports, service marks, trademarks, trade names,
logos, and all similar or related information (whether patentable or unpatentable, copyrightable, registerable as a trademark, reduced to writing, or otherwise) that relates to the Company’s actual or anticipated business, research and
development, or existing or future products or services and which are conceived, developed, or made by Employee (whether or not during usual business hours, whether or not by the use of the facilities of the Company, and whether or not alone or in
conjunction with any other person) while employed by the Company (including those conceived, developed, or made prior to the effective date of this Agreement) together with all patent applications, letters patent, trademark, trade name and service
mark applications or registrations, copyrights and reissues thereof that may be granted for or upon any of the foregoing.
|
|
3.
|
CONFIDENTIALITY REQUIREMENTS
.
|
(a)
Employee acknowledges and agrees that, as a result of the nature of the Company’s business and the nature of Employee’s position with the Company, Employee has been or will come into
contact with, and will have access to, Confidential Information belonging to the Company. Employee acknowledges that the aforementioned Confidential Information is unique and not generally known to the public with respect to the Company and has been
developed, acquired, and compiled by the Company at its great effort and expense.
(b)
Employee further acknowledges
and agrees that any disclosure or use of the Company’s Confidential Information by Employee, other than in connection with the Company’s business or as specifically authorized by the Company, will be or may become highly detrimental to the
business of the Company, and serious loss of business and damage to the Company will or may result.
(c)
Accordingly,
Employee agrees to hold all Confidential Information in the strictest confidence and agrees to safeguard and not use, disclose, divulge or reveal the Company’s Confidential Information to any person, either during Employee’s employment or
at any time after the termination of Employee’s employment with the Company, without specific prior written authorization from an executive officer of the Company. If Employee is an executive officer of the Company, Employee must obtain prior
written authorization from the Chief Executive Officer.
(d)
Employee further agrees to promptly deliver to the
Company, upon the termination of Employee’s employment with the Company, or at any other time as the Company
2
may so request, all Company property, including but not limited to laptops, personal digital assistants (PDAs), and cell phones, and all documentation, memoranda, notes, customer lists, records,
reports, blueprints, software, drawings, computer disks, programs, and any other documents (and all copies thereof) containing Confidential Information or relating to the Company’s business and any property associated therewith, which Employee
may then possess or have under Employee’s control.
|
|
4.
|
WORK PRODUCT REQUIREMENTS
.
|
(a)
All Work Product that Employee may have conceived, developed, made, discovered, invented or originated during his/her
employment by the Company prior to the Effective Date, during Employee’s employment with the Company, or at any time in the period of twelve (12) months after termination of Employee’s employment, shall be deemed work for hire and
shall be the exclusive property of the Company, as applicable. Employee hereby assigns all of Employee’s right, title, and interest in and to such Work Product to the Company, including all intellectual property rights therein.
(b)
Employee shall promptly disclose all Work Product to the Company, shall execute at the request of the Company any assignments
or other documents the Company may deem necessary to protect or perfect its rights therein, and shall assist the Company, at the Company’s expense, in obtaining, defending, and enforcing the Company’s rights therein. Employee hereby
appoints the Company as Employee’s attorney-in-fact to execute on Employee’s behalf any assignments or other documents deemed necessary by the Company to protect or perfect the Company’s rights to any Work Product.
(a)
Employee acknowledges and agrees that the Company has invested and will invest substantial time, effort, resources and finances
in the research, development and commercialization of the Company’s product(s) and is engaged in a highly competitive business and that, by virtue of the position in which Employee is employed, he or she will help create and will be given
access to Confidential Information. If the Employee engages in any business that is competitive with the Company it will cause great and irreparable harm to the Company, the monetary loss from which would be difficult, if not impossible, to measure.
(b)
Consequently, Employee covenants and agrees that so long as Employee is employed by the Company, and for a period
of one (1) year following termination of Employee’s employment with the Company, whether such termination is voluntary or involuntary, Employee will not, directly or indirectly (whether as an individual for Employee’s own account, or
as a partner, joint venturer, employee, agent, consultant or sales representative, officer, director or shareholder of any entity or otherwise), engage in, enter the employ of, render any services to, have any ownership interest in, nor participate
in the financing, operation, management or control of, any Competing Business, or in any manner compete with the Company, in any country in which the Company does business, without the Company’s specific written consent to do so.
“Competing Business” shall mean any enterprise, activity, or business that competes with the Company in any of its or their material businesses, including, without limitation, the research, design, development, identification, manufacture,
marketing, or sales of targeted regional cancer or infectious disease drug delivery systems.
3
The restrictions contained in this section shall not prevent Employee from accepting employment with a large
diversified organization with separate and distinct divisions that do not compete, directly or indirectly, with the Company, as long as prior to accepting such employment the Company receives separate written assurances from the prospective employer
and from Employee, satisfactory to the Company, to the effect that Employee will not render any services, directly or indirectly, to any division or business unit that competes, directly or indirectly, with the Company. During the restrictive period
set forth in this section, Employee will inform any new employer, prior to accepting employment, of the existence of this Agreement and provide such employer with a copy of this Agreement.
Nothing in this Agreement shall be construed to prevent or otherwise restrict or limit the Employee from owning shares and investing (as a passive investor), directly or indirectly, in the stock of any
publicly traded competing corporation whose shares are listed on a national securities exchange or traded in the over-the-counter market, but only if Employee does not own more than an aggregate of one percent (1%) of the outstanding stock of
such corporation.
|
|
6.
|
NON-SOLICITATION OF CUSTOMERS AND EMPLOYEES
.
|
(a)
Employee acknowledges and agrees that, during the course of Employee’s employment by the Company, Employee may come into contact with and become aware of some, most, or all of the
Company’s customers and employees, past, present, and prospective, and their names and addresses, as well as other information about the customers and employees not publicly available. Employee further acknowledges and agrees that the loss of
such customers and employees may cause the Company great and irreparable harm.
(b)
Consequently, Employee covenants
and agrees that, if Employee’s employment with the Company terminates, whether such termination is voluntary or involuntary, Employee will not, for a period of one (1) year following such termination, directly or indirectly (whether as an
individual for Employee’s own account, or as a partner, joint venturer, employee, agent, consultant or sales representative, officer, director or shareholder of any entity or otherwise), solicit or attempt to solicit to do business that would
compete with the Company in any of its or their material businesses, including, without limitation, the research, design, development, identification, manufacture, marketing, or sales of targeted regional cancer or infectious disease drug delivery
systems.
(c)
Employee also agrees that, for a period of one (1) year following termination of Employee’s
employment with the Company, whether such termination is voluntary or involuntary, Employee will not, directly or indirectly (whether as an individual for Employee’s own account, or as a partner, joint venturer, employee, agent, consultant or
sales representative, officer, director or shareholder of any entity or otherwise), solicit or attempt to solicit any then current employee of the Company to leave employee’s employment with the Company to become employed by any person, firm,
corporation, or other entity.
|
|
7.
|
ENFORCEMENT OF COVENANTS
.
|
(a)
Employee acknowledges that a breach by Employee of any of the terms of this Agreement will result in material, irreparable
injury to the Company for which any remedy at law will not be adequate. Moreover, it will not be possible to measure damages for such
4
injuries precisely and, in the event of such a breach or threat of breach, the Company shall be entitled to obtain a temporary restraining order and/or a preliminary or permanent injunction
restraining Employee from engaging in activities prohibited by this Agreement, together with such other relief as may be required to enforce specifically any of the terms of this Agreement. Employee consents to such temporary, preliminary, or
permanent injunctive relief. Nothing in this Agreement shall be construed as prohibiting the Company from pursuing any other available remedies for breach or threatened breach of this Agreement, including recovery of damages, court costs, and
attorneys’ fees.
(b)
If the Company is required to enforce any of its rights hereunder through legal proceedings,
Employee shall reimburse the Company for all reasonable costs, expenses, and attorneys’ fees incurred by the Company in connection with the enforcement of its rights hereunder.
(c)
Employee understands and agrees that nothing in this Agreement creates a contract, express or implied, of employment for any
specified period. Employee’s employment may be terminated by Employee or the Company at any time and for any reason or no reason, unless expressly limited by a separate writing executed by both the Company and Employee.
(d)
If one or more provisions of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal, or
unenforceable, Employee agrees the validity, legality, and enforcement of the remaining provisions of the Agreement shall not in any way be affected or impaired. Employee also agrees that the language contained in Sections “3”,
“4”, “5” and “6” of the Agreement is reasonable in scope and that Employee will not raise any issue regarding the reasonableness of the Agreement as a defense in any proceeding to enforce the Agreement. If a court
determines that the language contained in Sections “3”, “4”, “5” and “6” of the Agreement is not reasonable, the parties agree that the court may modify such provisions to the maximum period of restriction,
activities, term, or geographic scope that the court deems reasonable.
The
waiver by the Company of a breach of any provision of this Agreement by Employee shall not operate or be construed as a waiver of any subsequent breach by Employee, and the failure of the Company to take action against any other employee(s) for
similar breach(es) on their part, shall not be construed as a waiver of a breach by Employee.
This
Agreement shall be binding upon and inure to the benefit of the successors and assigns of the Company, and the heirs, executors, and administrators of Employee. The Company shall have the right to transfer and assign all or any portion of its rights
and obligations hereunder to any third party.
|
|
10.
|
APPLICABLE LAW AND CHOICE OF FORUM
.
|
This Agreement shall be governed by and construed in accordance with the laws of the State of New York. The parties, being desirous of having any disputes resolved in a forum having a substantial body of
law and experience with matters contained herein, and the parties
5
having a substantial connection with the State of New York, agree that any action or proceeding with respect to this Agreement shall be brought in a state or federal court located within the
State of New York. The parties consent to the personal jurisdiction of the state and federal courts of New York should a legal action to enforce this Agreement be necessary.
This
Agreement may only be modified by the express written consent of both parties.
This
Agreement constitutes the entire understanding between Company and Employee with respect to the subject matter hereof and supersedes and replaces all prior contracts, agreements and understandings related to the same subject matter between the
parties.
The
section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.
I have read and understand this Agreement and I agree to abide by its terms.
|
|
|
|
|
[EMPLOYEE]
|
|
DELCATH SYSTEMS, INC.
|
|
|
|
|
(Signature)
|
|
(Signature)
|
|
|
|
|
Date
|
|
Name
|
|
|
|
|
Witness
|
|
Title
|
|
|
|
|
|
|
Date
|
6
Exhibit 99.1
DELCATH EXPANDS SENIOR MANAGEMENT TEAM
Graham G. Miao Appointed Chief Financial Officer; David McDonald Appointed
Executive Vice President, Business Development
NEW YORK, NY – September 26, 2011 — Delcath Systems, Inc. (NASDAQ: DCTH) today announced the appointment of Graham G. Miao, M.S, MBA, Ph.D., 47, to the position of Executive Vice President,
Chief Financial Officer (CFO). Concurrent with this appointment, David McDonald, 51, Delcath’s CFO since 2009, will assume the newly created role of Executive Vice President, Business Development. Mr. Miao will report directly to Eamonn P.
Hobbs, President & CEO, and Mr. McDonald will continue to report to Mr. Hobbs. Both appointments are effective as of September 26, 2011.
Mr. Miao is a senior financial executive with extensive experience in global business operations, financial planning and analysis, and business development in the United States, Asia and Europe. He
joins Delcath from Dun & Bradstreet Corporation, where he served as Chief of Staff of the Global CFO Organization and member of the Financial Leadership team since 2009. Previously, Mr. Miao was Executive Vice President & CFO
of Pagoda Pharmaceuticals—a Shanghai-based specialty pharmaceuticals and medical device company focused in urology and allergy.
Prior to
joining Pagoda, Mr. Miao was Vice President of Strategic Planning & Financial Analysis at Symrise Inc., a German supplier of flavoring and fragrance products. In this role Mr. Miao served as division-CFO responsible for driving
profitable growth of a $700 million business line. Mr. Miao was also Senior Director for Global Primary Care and Global Medical Affairs at Schering-Plough Corporation, serving as the division-CFO for the company’s $3 billion primary care
pharmaceuticals franchise. Prior to his time at Schering-Plough, Mr. Miao was at Pharmacia Corporation, serving as Director-Head of Finance for Pharmacia’s $1.3 billion Global Oncology franchise. In this role, he reported operationally to
Gabriel Leung, then Head of Global Oncology franchise for Pharmacia and current member of the Delcath Board of Directors. Earlier in his career, Mr. Miao worked as a biotechnology analyst at J.P. Morgan and Company. Mr. Miao earned a Ph.D.
in Biological Sciences and an M.B.A. from Columbia University, an M.S. in molecular biology from Arizona State University, and a B.S. in biochemistry from Fudan University in Shanghai, China.
Commenting on the appointments, Mr. Hobbs said, “The timing of Graham Miao’s appointment as CFO is part of the planned
expansion of our executive leadership team in advance of the expected commercial launch of our Hepatic CHEMOSAT
®
Delivery System at the end of this year. Graham’s deep background in global financial operations and management, and track record of building high performance finance organizations,
make him ideally suited to help complete the next phase of our transition to a fully commercial enterprise. His knowledge of the global pharmaceutical industry landscape and experience in both
established and development stage pharmaceutical/medical device companies will bring additional strategic insights as well. We are pleased to welcome Graham to the Delcath team.”
Mr. Hobbs continued, “We are also pleased to appoint Dave McDonald to the newly created position of Executive Vice President, Business Development. Dave’s considerable investment banking
experience and skill set are well suited for this important new role. Dave will now be able to focus exclusively on the strategic development and partnering opportunities vital to the successful launch of CHEMOSAT in the EU and other foreign
markets, as well as the long-term expansion of available markets for chemosaturation therapy. Dave’s contributions as CFO during the past two years have been immeasurable, not the least of which was successfully raising almost $100 million in
new capital during a volatile and challenging period for the equity markets. We are confident that in his new capacity his skills and leadership will continue to help drive Delcath’s long-term success.”
About Delcath Systems
Delcath Systems, Inc. is a development stage specialty pharmaceutical and medical device company focused on oncology. Delcath’s proprietary system
for chemosaturation is designed to administer high dose chemotherapy and other therapeutic agents to diseased organs or regions of the body, while controlling the systemic exposure of those agents. The Company’s initial focus is on the
treatment of primary and metastatic liver cancers. In 2010, Delcath concluded a Phase III metastatic melanoma study, and the Company recently completed a multi-arm Phase II trial to treat other liver cancers. The Company obtained authorization to
affix a CE Mark for the Hepatic CHEMOSAT delivery system in April 2011. The Company has not yet received FDA approval for commercial sale of its system in the United States. For more information, please visit the Company’s website at
http://www.delcath.com/
.
The Private Securities Litigation Reform Act of 1995 provides a safe harbor for forward-looking statements
made by the Company or on its behalf. This news release contains forward-looking statements, which are subject to certain risks and uncertainties that can cause actual results to differ materially from those described. Factors that may cause such
differences include, but are not limited to, uncertainties relating to our ability and the time required to build inventory and establish commercial operations in Europe, adoption, use and resulting sales for the Hepatic CHEMOSAT delivery system in
the EEA, if any, our ability to successfully commercialize the chemosaturation system and the potential of the chemosaturation system as a treatment for patients with terminal metastatic disease in the liver, acceptability of the Phase III clinical
trial data by the FDA, our ability to address the issues raised in the Refusal to File letter received from the FDA and the timing of our re-submission of our NDA, re-submission and acceptance of the Company’s NDA by the FDA, approval of the
Company’s NDA for the treatment of metastatic melanoma to the liver, adoption, use and resulting sales in the United States, if
any, approval of the current or future chemosaturation system for other indications, actions by the FDA or other foreign regulatory agencies, our ability to successfully enter into distribution
and strategic partnership agreements in foreign markets and the corresponding revenue associated with such foreign markets, our ability to obtain reimbursement for the Hepatic CHEMOSAT system in Europe, uncertainties relating to the results from
current or future research and development or clinical trials, and uncertainties regarding our ability to obtain financial and other resources for any research, development and commercialization activities. These factors, and others, are discussed
from time to time in our filings with the Securities and Exchange Commission. You should not place undue reliance on these forward-looking statements, which speak only as of the date they are made. We undertake no obligation to publicly update or
revise these forward-looking statements to reflect events or circumstances after the date they are made.
|
|
|
|
|
|
|
|
|
Contact Information:
|
|
|
|
|
|
|
|
Investor Contact:
|
|
|
|
Media Contact:
|
|
|
|
Doug Sherk/Gregory Gin
|
|
|
|
Janine McCargo
|
|
|
|
EVC Group
|
|
|
|
EVC Group
|
|
|
|
415-568-4887/646-445-4801
|
|
|
|
646-688-0425
|
|
|
