EXHIBIT 10.2
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made and entered into as of
August 26, 2005 (the "Effective Date") by and between GTX, INC., located at 0
Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx 00000 (the "Employer"), and XXXXXXX X. XXXXXX
(the "Employee"), residing at 000 Xxxxxxxx Xxxx Xxxxx, Xxxxxxx, Xxxxxxxxx 00000.
WHEREAS, Employee has been employed by Employer since February 9, 2004, and
as a result of Employee becoming an officer of Employer, the Employer desires to
enter into this Agreement to retain the services of Employee as Vice President
of Sales & Marketing; and
WHEREAS, the Employer and the Employee desire to enter into this Agreement
to set forth terms and conditions of the employment relationship between the
Employer and the Employee; and
WHEREAS, during the course of Employee's employment with the Employer, the
Employer will train and continue to train Employee and to impart to Employee
proprietary, confidential, and/or trade secret information, data and/or
materials of the Employer; and
WHEREAS, the Employer has a vital interest in maintaining its confidential
information and trade secrets, as well as rights to inventions, since doing so
allows the Employer to compete fairly and enhances the value of the Employer to
shareholders and job security for employees; and
WHEREAS, the Employer desires to procure the services of Employee and
Employee is willing to be employed and continue to be employed with the Employer
upon the terms and subject to the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement, the employment and continued employment of Employee
in accordance with the terms and conditions of this Agreement, and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties, intending to be legally bound, agree and covenant as
follows:
1. DEFINITIONS
For the purposes of this Agreement, the following terms have the meanings
specified or referred to in this Section 1.
"AGREEMENT" has the meaning set forth in first paragraph of this Agreement.
"BASIC COMPENSATION" means Salary and Benefits.
"BENEFITS" means as defined in Section 3.1(b).
"BOARD OF DIRECTORS" means the Board of Directors of the Employer.
"CEO" has the meaning set forth in Section 2.2.
"CHANGE OF CONTROL" means any of the following events: (a) the sale or
other disposition of all or substantially all of the assets of Employer in a
single transaction or in a series of transactions (including, without
limitation, any liquidation or dissolution of Employer); (b) any Person or group
becomes the beneficial owner, directly, or indirectly, of securities of the
Employer, other than J.R. Hyde, III and/or Xxxxxxxx X. Xxxxxxx and their
respective Affiliates, representing more than fifty percent (50%) of the
combined voting power of the Employer's then outstanding securities other than
by virtue of a merger, consolidation or similar transaction; or (c) a merger or
consolidation of Employer with or into any other entity, if immediately after
giving effect to such transaction more than fifty percent (50%) of the issued
and outstanding voting stock of the surviving entity of such transaction is held
by persons who were not holders (taking into account their individual and
affiliated holdings) as of the Effective Date of at least twenty percent (20%)
of the voting stock of Employer. For such purposes, "voting stock" shall mean
the capital stock of Employer of any class or classes, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the election
of members of the Board of Directors (or Persons performing similar functions)
of Employer. A Change of Control shall not include: (1) any transfer or issuance
of stock of Employer to one or more of Employer's lenders (or to any agents or
representatives thereof) in exchange for debt of Employer owed to any such
lenders; (2) any transfer of stock of Employer to or by any person or entity,
including but not limited to one or more of the Employer's lenders (or to any
agents or representatives thereof), pursuant to the terms of any pledge of said
stock as collateral for any loans or financial accommodations to Employer and/or
its subsidiaries; (3) any transfer or issuance to any person or entity,
including but not limited to one or more of Employer's lenders (or to any agents
or representatives thereof), in connection with the workout or restructuring of
Employer's debts to any one of Employer's lenders, including but not limited to
the issuance of new stock in exchange for any equity contribution to Employer in
connection with the workout or restructuring of such debt; (4) any transfer of
stock by a stockholder of Employer which is a partnership or corporation to the
partners or stockholders in such stockholder or any transfer of stock by a
stockholder of Employer to an entity affiliated with such stockholder or the
immediate family of such stockholder or a trust or similar entity for the
benefit of such family members; or (5) any transfer or issuance of stock in
connection with an offering of the Employer's stock in a registered public
transaction not involving a transaction described in Rule 145, promulgated under
the Securities Act of 1933, as amended, provided that the Employer's officers
and Board of Directors shall not materially change as a result thereof.
"CHANGE OF CONTROL TERMINATION" means (i) a Termination Without Cause of
the Employee's employment by the Employer within six (6) months after a Change
of Control or (ii) the Employee's resignation for Good Reason within six (6)
months after a Change of Control.
"COMPETING BUSINESS" means any individual or entity, other than the
Employer, that is engaging in, or proposes to engage in, the development,
manufacture, distribution or sale of a Competing Product in North America,
Europe, Japan, China, Taiwan or South Korea; provided however, that an entity
that develops, manufactures, distributes or sells a Competing Product in a
separate business unit than the business unit in which Employee is then employed
shall not be deemed a Competing Business unless Employee provides Confidential
Information and/or
Proprietary Information to the business unit that is engaging in or proposes to
engage in the development, manufacture, distribution or sale of a Competing
Product.
"COMPETING PRODUCT" means any pharmaceutical or other compound,
composition, formulation, method, process, product or material that is
competitive with any product of Employer under development, manufacture,
distribution or commercialization at any time from and after the Effective Date
through the date of termination of Employee's employment that has been tested or
is then currently being tested in at least a Phase II clinical trial in humans
to determine both safety and efficacy, including, without limitation, small
molecules that target androgen, glucocorticoid and/or estrogen receptors for
purposes of treating, diagnosing, or imaging humans in health and disease,
selective cytopathic viruses, such as vesicular stomatitus virus
(rhabdoviridae), that target and destroy selected cells, and pharmaceutical
products that are focused on prostate cancer therapy.
"CONFIDENTIAL INFORMATION AND/OR PROPRIETARY INFORMATION" means any and
all:
(a) information disclosed to Employee or known by Employee as a consequence
of, or through, Employee's employment with the Employer since his date of
employment on February 9, 2004 (including information conceived, originated,
discovered, or developed in whole or in part by Employee), not generally known
in the relevant trade or industry, about the Employer's business, products,
processes, and services; and trade secrets concerning the business and affairs
of the Employer, product specifications, data, know-how, formulae, compositions,
research, processes, designs, sketches, photographs, graphs, drawings, samples,
inventions and ideas, past, current, and planned research and development,
current and planned manufacturing or distribution methods and processes,
customer lists, current and anticipated customer requirements, price lists,
market studies, business plans, computer software and programs (including object
code and source code), computer software and database technologies, systems,
structures, and architectures (and related formulae, compositions, processes,
improvements, devices, know-how, inventions, discoveries, concepts, ideas,
designs, methods and information); and any other information, however
documented, that is a trade secret within the meaning of Tenn. Code
Section 00-00-000; and
(b) information concerning the business and affairs of the Employer (which
includes historical financial statements, financial projections and budgets,
historical and projected sales, capital spending budgets and plans, the names
and backgrounds of key personnel, personnel training and techniques and
materials), however documented; and
(c) intellectual property, inventions, methods, processes, techniques,
computer programs, devices, products, services, compounds, gene therapy
products, pharmaceuticals, substances, vectors, enzymes, genes, concepts,
discoveries, improvements, and designs, whether or not patentable in the United
States or foreign countries, any trade secrets, information, procedures,
technologies, data, results, conclusions, know-how or show-how and business
information; and
(d) notes, analysis, compilations, studies, summaries, and other material
prepared by or for the Employer containing or based, in whole or in part, on any
information included in the foregoing.
"EFFECTIVE DATE" means the date stated in the first paragraph of the
Agreement.
"EMPLOYEE" has the meaning stated in the first paragraph of this Agreement.
"EMPLOYEE INVENTION" means any idea, invention, technique, modification,
process, improvement (whether patentable or not), industrial design (whether
registerable or not), work of authorship (whether or not copyright protection
may be obtained for it), design, copyrightable work, discovery, trademark,
copyright, trade secret, formula, device, method, compound, gene, prodrug,
pharmaceutical, structure, product concept, marketing plan, strategy, customer
list, technique, blueprint, sketch, record, note, drawing, know-how, data,
patent application, continuation application, continuation-in-part application,
file wrapper continuation application or divisional application, created,
conceived, or developed by the Employee, either solely or in conjunction with
others, during the Employee's employment, or a period that includes a portion of
the Employee's employment, that relates in any way to, or is useful in any
manner in, the business then being conducted or proposed to be conducted by the
Employer, and any such item created by the Employee, either solely or in
conjunction with others, following termination of the Employee's employment with
the Employer, that is based upon or uses Confidential Information and/or
Proprietary Information.
"EMPLOYER" means GTx, Inc., its successors and assigns, and any of its
current or future subsidiaries, or organizations controlled by, controlling, or
under common control with it.
"GOOD REASON" means any of the following:
(a) following a Change of Control, a change in the Employee's status,
position or responsibilities (including reporting responsibilities) which,
without Employee's consent, represents a reduction in or demotion of the
Employee's status, position or responsibilities as in effect immediately prior
to a Change of Control or the assignment to the Employee of any duties or
responsibilities which are inconsistent with such status, position or
responsibilities;
(b) following a Change of Control, a reduction in the Salary in effect
immediately prior to the Change of Control or modifying, suspending,
discontinuing, or terminating any Benefit in a manner which materially and
adversely affects Employee;
(c) following a Change of Control, the relocation of the Employer's
principal Employee offices to a location outside a thirty-mile radius of
Memphis, Tennessee, or the Employer's requiring the Employee to be based at any
place other than a location within a thirty-mile radius of Memphis, Tennessee,
except for reasonably required travel on the Employer's business; or
(d) following a Change of Control, the failure of the Employer to
obtain an agreement reasonably satisfactory to Employee from any successor or
assign of the Employer to assume and agree to perform this Agreement.
"PERSON" means any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company, joint
venture, estate, trust, association, organization, or governmental body.
"PROPRIETARY ITEMS" means any Proprietary and/or Confidential Information
embodied in any document, record, recording, electronic media, formulae,
notebook, plan, model, component, device, or computer software or code, whether
embodied in a disk or in any other form.
"SALARY" means as defined in Section 3.1(a).
"TERMINATION WITH CAUSE" means the termination of the Employee's employment
for any of the following reasons:
(a) the Employee's conviction for a felony;
(b) the Employee's theft, embezzlement, misappropriation of or
intentional infliction of material damage to the Employer's property or business
opportunities;
(c) the Employee's breach of the provisions contained in Section 7 or
Section 8 of this Agreement; or
(d) the Employee's ongoing willful neglect of or failure to perform
his duties hereunder or his ongoing willful failure or refusal to follow any
reasonable, unambiguous duly adopted written direction of the CEO that is not
inconsistent with the description of the Employee's duties set forth in Section
2.3, if such willful neglect or failure is materially damaging or materially
detrimental to the business and operations of the Employer; provided that
Employee shall have received written notice of such failure and shall have
continued to engage in such failure after 30 days following receipt of such
notice from the CEO, which notice specifically identifies the manner in which
the CEO believes that Employee has engaged in such failure. For purposes of this
subsection, no act, or failure to act, shall be deemed "willful" unless done, or
omitted to be done, by Employee not in good faith, and without reasonable belief
that such action or omission was in the best interest of the Employer.
"TERMINATION WITHOUT CAUSE" means the termination of the Employee's
employment by the Employer for any reason other than Termination With Cause, or
termination by the Employer due to Employee's death or disability.
2. EMPLOYMENT TERMS AND DUTIES
2.1 Employment
The Employer hereby employs the Employee, and the Employee hereby
accepts employment by the Employer, upon the terms and conditions set forth in
this Agreement.
2.2 Term
Either the Employee or the Employer may terminate this Agreement and
the Employee's employment and compensation with or without cause or notice, at
any time, at either the Employer's or the Employee's option. No company officer
or manager has the authority to enter into any other agreement for employment
for a specified period of time, or to modify or to make any agreement contrary
to the foregoing, except by written amendment to this Agreement, dated and
signed by the Chief Executive Officer ("CEO") or the Chief Operating Officer and
President ("President") of the Employer.
2.3 Duties
The Employee will have such duties as are assigned or delegated to the
Employee by the CEO or President, and currently is serving as Vice President,
Sales & Marketing for the Employer. The Employee will devote his full time,
attention, skill and energy to the business of the Employer, will use his best
efforts to promote the success of the Employer's business, and will cooperate
fully with the CEO in the advancement of the best interest of the Employer.
Employee agrees to abide by all bylaws, policies, practices, procedures or rules
of Employer. Employee may be reassigned or transferred to another management
position, as designated by the CEO and/or the President, which may or may not
provide the same level of responsibility as the initial assignment, in
accordance with the terms and conditions of this Agreement.
3. COMPENSATION
3.1 Basic Compensation
(a) Salary. The Employee will be paid pursuant to the
compensation policies of Employer, which currently pays it employees over
26 payroll periods during the calendar year, in the gross amount per pay
period of approximately $8,269 (the "Salary"), which is the equivalent of
$215,000 per calendar year. Employee's Salary may be adjusted from time to
time by the CEO and/or the President.
(b) Benefits. The Employee will, during his employment, be
permitted to participate in such life insurance, hospitalization, major
medical, short term disability, long term disability, 401K plan and other
employee benefit plans of the Employer that may be in effect from time to
time, to the extent the Employee is eligible under the terms of those plans
(collectively, the "Benefits").
(c) The Employer may withhold from any salary or benefits payable
to Employee all federal, state, local, and other taxes and other amounts as
permitted or required pursuant to law, rules or regulations.
4. FACILITIES AND EXPENSES
4.1 General
The Employer will furnish the Employee office space, equipment,
supplies, and such other facilities and personnel as the Employer deems
necessary or appropriate for the performance of the Employee's duties under this
Agreement. The Employer will pay the Employee's dues in such professional
societies and organizations as the President deems appropriate, and will pay on
behalf of the Employee (or reimburse the Employee for) reasonable expenses
incurred by the Employee at the request of, or on behalf of, the Employer in the
performance of the Employee's duties pursuant to this Agreement, and in
accordance with the Employer's employment policies, including reasonable
expenses incurred by the Employee in attending conventions, seminars, and other
business meetings, in appropriate business entertainment activities, and for
promotional expenses. The Employee must file expense reports with respect to
such expenses in accordance with the Employer's policies.
5. VACATIONS AND HOLIDAYS
The Employee will be entitled initially to three (3) weeks paid vacation
each year in accordance with the vacation policies of the Employer in effect
from time to time. Vacation must be taken by the Employee at such time or times
as approved by the President. The Employee will also be entitled to the paid
holidays set forth in the Employer's policies. Under Employer's current
policies, vacation days and holidays during any year that are not used by the
Employee during such year may not be used in any subsequent year.
6. TERMINATION
6.1 Events of Termination
Either the Employee or Employer may terminate this Employment
Agreement (with the exception of the provisions of Section 7 and 8 which shall
survive termination of this Agreement) and Basic Compensation with or without
cause or notice, at any time at either the Employee's or the Employer's option.
6.2 The employment of Employee shall terminate on the date of the
Employee's death, in which event Employee's Basic Compensation, owing to
Employee through the date of Employee's death shall be paid to his estate.
Employee's estate will not be entitled to any other compensation under this
Agreement.
6.3 The Employer shall be released from any and all further
obligations under this Agreement, except the Employer shall be obligated to pay
Employee his Basic Compensation owing to Employee through the day on which
Employee's employment is terminated and as provided in Section 6.4, if
applicable. Employee's obligation under Sections 7 and 8 shall continue pursuant
to the terms and conditions of this Agreement.
6.4 As additional consideration for the covenants in Section 7 and
Section 8, in the event of a Change of Control Termination, Employee shall
receive the equivalent of his then current Salary payable at the payroll period
as of the time of his termination of Employment for a period of one (1) year
from the date of termination, payable in accordance with Employer's then current
payroll policies and procedures, less deductions required by law.
7. NON-DISCLOSURE COVENANT; EMPLOYEE INVENTIONS
7.1 Acknowledgements by the Employee
The Employee acknowledges and agrees that (a) during the course of his
employment and as a part of his employment, the Employee will be afforded access
to Confidential Information and/or Proprietary Information; (b) public
disclosure of such Confidential Information and/or Proprietary Information could
have an adverse effect on the Employer and its business; (c) because the
Employee possesses substantial technical expertise and skill with respect to the
Employer's business, the Employer desires to obtain exclusive ownership of each
Employee Invention, and the Employer will be at a substantial competitive
disadvantage if it fails to acquire exclusive ownership of each Employee
Invention; and (d) the provisions of this Section 7 are reasonable and necessary
to prevent the improper use or disclosure of Confidential Information and/or
Proprietary Information and to provide the Employer with exclusive ownership of
all Employee Inventions.
7.2 Agreements of the Employee
In consideration of the compensation and benefits to be paid or
provided to the Employee by the Employer under this Agreement and otherwise, and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, Employee covenants and agrees as follows:
(a) Confidentiality.
(i) That all of such Confidential Information and/or
Proprietary Information is a unique asset of the business of Employer,
the disclosure of which would be damaging to Employer.
(ii) That the Employee will not at any time, whether during
or after termination or cessation of the Employee's employment, except
as authorized by Employer and for its benefit, use, divulge or
disclose (or enable anyone else to use, divulge or disclose) to any
person, association or entity any Confidential Information and/or
Proprietary Information which the Employee presently possesses or
which the Employee may obtain during the course of the Employee's
employment with respect to the business, finances, customers or
affairs of Employer or trade secrets, developments, methods or other
information and data pertaining to the Employer's business. The
Employee shall keep strictly confidential all matters and information
entrusted to the Employee and shall not use or attempt to use any such
Confidential Information and/or Proprietary
Information in any manner which may injure or cause loss or may be
calculated to injure or cause loss, whether directly or indirectly, to
Employer.
(iii) That during the course of this Agreement or at any
time after termination, Employee will keep in strictest confidence and
will not disclose or make accessible to any other person without the
prior written consent of Employer, the Confidential Information and/or
Proprietary Information; Employee agrees: (a) not to use any such
Confidential Information and/or Proprietary Information for himself or
others; and (b) not to take any such material or reproductions thereof
from the Employer's facilities at any time during his employment
except, in each case, as required in connection with the Employee's
duties to the Employer.
(iv) Employee agrees to hold in confidence, and not to
distribute or disseminate to any person or entity for any reason, any
Confidential Information and/or Proprietary Information of Employer
under this Agreement, or information relating to experiments or
results obtained based on the duties of Employee, except for
information which: (a) is in or which becomes a part of the public
domain not as a result of a breach of this Agreement, (b) information
lawfully received from a third party who had the right to disclose
such information or (c) is required by legal process before a court of
proper jurisdiction (by oral questions, deposition, interrogatories,
requests for information or documents, subpoena, civil investigative
domain or other similar process) to disclose all or any part of any
Confidential Information and/or Proprietary Information, provided that
Employee will provide Employer with prompt notice of such request or
requirement, as well as notice of the terms and circumstances
surrounding such request or requirements, so that Employer may seek an
appropriate protective order or waive compliance with the provisions
of this Agreement. In such case, the parties will consult with each
other on the advisability of pursuing any such order or other legal
action or available step to resist or narrow such request or
requirement. If, failing the entry of a protective order or the
receipt of a waiver hereunder, Employee is, in the opinion of counsel
reasonably acceptable to Employer, legally compelled to disclose
Confidential Information and/or Proprietary Information, Employee may
disclose that portion of such information which counsel advises him to
disclose to satisfy the legal process.
(v) Upon written notice by Employer, Employee shall promptly
redeliver to Employer, or, if requested by Employer, promptly destroy
all written Confidential Information and/or Proprietary Information
and any other written material containing any information included in
the Confidential Information and/or Proprietary Information (whether
prepared by Employer, Employee, or a third party), and will not retain
any copies, extracts or other reproductions in whole or in part of
such written Confidential Information and/or Proprietary Information
(and upon request certify such redelivery of destruction to Employer
in a written instrument reasonably acceptable to Employer and its
counsel).
(vi) This Agreement and the terms and conditions recited
herein are confidential and non-public, except as may be expressly
permitted by the Employer. The Employee agrees not to disclose the
contents of this Agreement to any person or entity, including, but not
limited to the press, other media, any public body, or any competitor
of Employer, except to the Employee's legal counsel or as may be
required by law.
(vii) Any trade secrets of the Employer will be entitled to
all of the protections and benefits of State of Tennessee law and any
other applicable law. If any information that the Employer deems to be
a trade secret is found by a court of competent jurisdiction not be to
a trade secret for purposes of this Agreement, such information will,
nevertheless, be considered Confidential Information and/or
Proprietary Information for purposes of this Agreement. The Employee
hereby waives any requirement that the Employer submits proof of the
economic value of any trade secret or post a bond or other security.
(viii) None of the foregoing obligations and restrictions
applies to any part of the Confidential Information and/or Proprietary
Information that the Employee demonstrates was or became generally
available to the public other than as a result of a disclosure by the
Employee.
(ix) The Employee will not remove from the Employer's
premises (except to the extent such removal is for purposes of the
performance of the Employee's duties at home or while traveling, or
except as otherwise specifically authorized by the Employer) any
Proprietary Items. The Employee recognizes that, as between the
Employer and the Employee, all of the Proprietary Items, whether or
not developed by the Employee, are the exclusive property of the
Employer. Upon termination of this Agreement by either party, or upon
the request of the Employer during the employment of Employee, the
Employee will return to the Employer all of the Proprietary Items in
the Employee's possession or subject to the Employee's control, and
the Employee shall not retain any copies, abstracts, sketches, or
other physical or electronic embodiment of any of the Proprietary
Items.
(b) Employee Inventions.
(i) Each Employee Invention will belong exclusively to the
Employer. Employee agrees that Employer shall have sole and exclusive
ownership rights in any conception, invention, trade secrets,
information, ideas, improvement, substance, know-how, whether or not
patentable, arising out of, resulting from, or derivative of: (1) the
work or services of Employee, or (2) within the scope of the duties of
Employee, or (3) using any materials, compounds, devices, or monies of
Employer. Any resulting or derivative rights, including patent rights,
shall become the exclusive property of Employer, and Employer shall be
entitled to the entire right, title and interest with respect hereto.
Employee agrees, without additional compensation, to convey, assign
the entire right, title, and interest in and to any inventions for the
United States and all foreign jurisdictions to
Employer arising out of, resulting from, or derivative of: (1) the
work or services of Employee, or (2) within the scope of the duties of
Employee, or (3) using any materials, compounds, devices, or monies.
(ii) Employer shall retain the entire right, title and interest
in and to any and all Confidential Information and/or Proprietary
Information provided by Employer to Employee and to any methods,
compounds, improvements, substances, and compositions using or
incorporating such Confidential Information and/or Proprietary
Information.
(iii) Employee agrees that Confidential Information and/or
Proprietary Information provided to the Employee by Employer shall be
used for work purposes only and shall not be used for any other uses,
studies, experiments or tests.
(iv) Employee agrees that he will promptly disclose to Employer,
or any persons designated by Employer, all Employee Inventions, made
or conceived or reduced to practice or learned by him, either alone or
jointly with others, during the employment of the Employee. The
Employee further agrees to assist Employer in every proper way (but at
Employer's expense) to obtain and from time to time enforce patents,
copyrights or other rights on Employee Inventions in any and all
countries, and to that end Employee will execute all documents
necessary: (a) to apply for, obtain and vest in the name of Employer
alone (unless Employer otherwise directs) letters patent, copyrights
or other analogues protection in any country throughout the world and
when so obtained or vested to renew and restore the same; and (b) to
defend (including the giving of testimony and rendering any other
assistance) any opposition proceedings in respect of such applications
and any opposition proceedings or petitions or applications for
revocation of such letters patent, copyright or other analogous
protection. Employee's obligation to assist Employer in obtaining and
enforcing patents and copyrights for Employee Inventions in any and
all countries shall continue beyond and after the termination of
Employee.
(v) Any copyrightable work whether published or unpublished
created by Employee in connection with or during the performance of
services below shall be considered a work made for hire, to the
fullest extent permitted by law and all right, title and interest
therein, including the worldwide copyrights, shall be the property of
Employer as the employer and party specially commissioning such work.
In the event that any such copyrightable work or portion thereof shall
not be legally qualified as a work made for hire, or shall
subsequently be so held, Employee agrees to properly convey to
Employer, without additional compensation, the entire right, title and
interest in and to such work or portion thereof, including but not
limited to the worldwide copyrights, extensions of such copyrights,
and renewal copyrights therein, and further including all rights to
reproduce the copyrighted work in copies or phonorecords, to prepare
derivative works based on the copyrighted work, to distribute copies
of the copyrighted work, to perform the copyrighted work publicly, to
display the copyrighted work
publicly, and to register the claim of copyright therein and to
execute any and all documents with respect hereto.
(vi) Employee may not publish or disclose any Confidential
Information and/or Proprietary Information relating to, arising from,
derivative of, or as a result of his employment pursuant to this
Agreement including but not limited to: information, improvements,
results, experiments, data, or methods, that makes reference to any of
the Confidential Information and/or Proprietary Information. Any work
performed under, or arising from, or a result of his employment with
Employer shall not be published or disclosed in written, electronic,
or oral form without the express written permission of Employer.
7.3 Disputes or Controversies
The Employee recognizes that should a dispute or controversy arising
from or relating to this Agreement be submitted for adjudication to any court,
arbitration panel, or other third party, the preservation of the secrecy of
Confidential Information and/or Proprietary Information may be jeopardized. All
pleadings, documents, testimony, and records relating to any such adjudication
will be maintained in secrecy and will be available for inspection by the
Employer, the Employee, and their respective attorneys and experts, who will
agree, in advance and in writing, to receive and maintain all such information
in secrecy, except as may be limited by them in writing.
8. NON-COMPETITION
8.1 Acknowledgments by the Employee
Except for circumstance involving a Change of Control as described in
Section 8.4 below, Employee understands and recognizes that the Employee's
services provided to Employer are special, unique, unusual, extraordinary and
intellectual in character, and Employee agrees that, during the employment of
Employee and for a period of two (2) years from the date of termination of the
Employee's employment with Employer, he will not in any manner, directly or
indirectly, on behalf of himself or any Person, firm, partnership, joint
venture, corporation or other business entity, engage or invest in, own, manage,
operate, finance, control or participate in the ownership, management,
operation, financing, or control of, be employed by, associated with, or in any
manner connected with, lend the Employee's name or similar name to, lend
Employee's credit to or render services or advice to, enter into or engage in
any Competing Business; provided, however, that Employee may purchase or
otherwise acquire up to (but not more than) one percent of any class of
securities of any enterprise (but without otherwise participating in the
activities of such enterprise) if such securities are listed on any national or
regional securities exchange or have been registered under Section 12(g) of the
Securities Exchange Act of 1934.
8.2 Except for circumstances involving a Change of Control as
described in Section 8.4 below, in consideration of the acknowledgements by the
Employee, and in
consideration of the compensation and benefits to be paid or provided to the
Employee by the Employer, the Employee covenants that he will not, directly or
indirectly, whether for the Employee's own account or the account of any other
person (i) at any time during the employment of Employee and for a period of two
(2) years from the termination of the Employee's employment with Employer,
solicit, employ, or otherwise engage as an employee, independent contractor, or
otherwise, any person who is or was an employee of the Employer at any time
during the Employee's employment with Employer or in any manner induce or
attempt to induce any employee of the Employer to terminate his employment with
the Employer; or (ii) at any time during the employment of Employee with
Employer and for two (2) years from the termination of Employee's employment
with Employer, interfere with the Employer's relationship with any person,
including any person who at any time during the Employee's employment with
Employer was an employee, contractor, supplier, or customer of the Employer.
8.3 In further consideration of these premises, Employee agrees that
he will not at any time during or after Employee's employment with Employer,
disparage the Employer or any of its shareholders, directors, officers,
employees, or agents.
8.4 Change of Control. In the event of a Change of Control
Termination, Employee's obligations under Sections 8.1 and 8.2 above shall
expire one (1) year from the date of termination of his employment with Employer
(or any entity acquiring Employer as a result of a Change of Control).
8.5 If any covenant in Section 8 is held to be unreasonable,
arbitrary, or against public policy, such covenant will be considered to be
divisible with respect to scope, time, and geographic area, and such lesser
scope, time, or geographic area, or all of them, as a court of competent
jurisdiction may determine to be reasonable, not arbitrary, and not against
public policy, will be effective, binding, and enforceable against the Employee.
The period of time applicable to any covenant in Section 8 will be
extended by the duration of any violation by the Employee of such covenant.
The Employee will, while the covenants under Section 8 are in effect,
give notice to the Employer, within ten days after accepting any other
employment, of the identity of the Employee's employer. The Employer may notify
such employer that the Employee is bound by this Agreement and, at the
Employer's election, furnish such employer with a copy of this Agreement or
relevant portions thereof.
9. GENERAL PROVISIONS
9.1 Injunctive Relief and Additional Remedy
The Employee acknowledges that the injury that would be suffered by
the Employer as a result of a breach of the provisions of this Agreement
(including any provision of Sections 7 and 8) would be irreparable and that an
award of monetary damages to the Employer for such a breach would be an
inadequate remedy. Consequently, the Employer will have the right, in addition
to any other rights it may have, to obtain injunctive relief to restrain any
breach or threatened breach or otherwise to specifically enforce any provision
of this Agreement, and the Employer will not be obligated to post bond or other
security in seeking such relief. Without
limiting the Employer's rights under this Section 9 or any other remedies of the
Employer, if the Employee breaches any of the provisions of Section 7 or 8, the
Employer will have the right to cease making any payments otherwise due to the
Employee under this Agreement.
9.2 Covenants of Sections 7 and 8 are Essential and Independent
Covenants
The covenants by the Employee in Sections 7 and 8 are essential
elements of this Agreement, and without the Employee's agreement to comply with
such covenants the Employer would not have entered into this Agreement or
employed or continued the employment of the Employee. The Employer and the
Employee have independently consulted their respective counsel and have been
advised in all respects concerning the reasonableness and propriety of such
covenants, with specific regard to the nature of the business conducted by the
Employer.
The Employee's covenants in Sections 7 and 8 are independent covenants
and the existence of any claim by the Employee against the Employer under this
Agreement or otherwise will not excuse the Employee's breach of any covenant in
Section 7 or 8.
If the Employee's employment hereunder is terminated by either party,
this Agreement will continue in full force and effect as is necessary or
appropriate to enforce the covenants and agreements of the Employee in Sections
7 and 8.
9.3 Representations and Warranties by the Employee
The Employee represents and warrants to the Employer that the
execution and delivery by the Employee of this Agreement do not, and the
performance by the Employee of the Employee's obligations hereunder will not,
with or without the giving of notice or the passage of time, or both: (a)
violate any judgment, writ, injunction, or order of any court, arbitrator, or
governmental agency applicable to the Employee; or (b) conflict with, result in
the breach of any provisions of or the termination of, or constitute a default
under, any agreement to which the Employee is a party or by which the Employee
is or may be bound.
9.4 Waiver
The rights and remedies of the parties to this Agreement are
cumulative and not alternative. Neither the failure nor any delay by either
party in exercising any right, power, or privilege under this Agreement will
operate as a waiver of such right, power, or privilege, and no single or partial
exercise of any such right, power, or privilege will preclude any other or
further exercise of such right, power, or privilege or the exercise of any other
right, power, or privilege. To the maximum extent permitted by applicable law,
(a) no claim or right arising out of this Agreement can be discharged by one
party, in whole or in part, by a waiver or renunciation of the claim or right
unless in writing signed by the other party; (b) no waiver that may be given by
a party will be applicable except in the specific instance for which it is
given; and (c) no notice to or demand on one party will be deemed to be a waiver
of any obligation of such party or of the right of the party giving such notice
or demand to take further action without notice or demand as provided in this
Agreement.
9.5 Binding Effect; Delegation of Duties Prohibited
This Agreement shall inure to the benefit of, and shall be binding
upon, the parties hereto and their respective successors, assigns, heirs, and
legal representatives, including any entity with which the Employer may merge or
consolidate or to which all or substantially all of its assets may be
transferred. The duties and covenants of the Employee under this Agreement,
being personal, may not be delegated.
9.6 Notices
All notices, consents, waivers, and other communications under this
Agreement must be in writing and will be deemed to have been duly given when (a)
delivered by hand (with written confirmation of receipt), (b) sent by facsimile
(with written confirmation of receipt), provided that a copy is mailed by
registered mail, return receipt requested, or (c) when received by the
addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and facsimile
numbers set forth below (or to such other addresses and facsimile numbers as a
party may designate by notice to the other parties):
If to Employer: GTx, Inc
0 X. Xxxxxx Xxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: Vice President, General Counsel
Facsimile No.: 000-000-0000
If to the Employee: Xxxxxxx X. Xxxxxx
000 Xxxxxxxx Xxxx Xxxxx
Xxxxxxx, Xxxxxxxxx 00000
Facsimile No.: ______________
Employee shall notify Employer in writing of any change of his address.
Otherwise, Employer shall send all notices to Employee's address herein.
9.7 Entire Agreement; Amendments
This Agreement contains the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior agreements and
understandings, oral or written, between the parties hereto with respect to the
subject matter hereof. This Agreement may not be amended orally, but only by an
agreement in writing signed by the parties hereto.
9.8 Governing Law
This Agreement will be governed by the laws of the State of Tennessee
without regard to conflicts of laws principles.
9.9 Jurisdiction
Any action or proceeding seeking to enforce any provision of, or based
on any right arising out of, this Agreement shall be brought against either of
the parties in the courts of the State of Tennessee, County of Shelby, or, if it
has or can acquire jurisdiction, in the United States District Court for the
Western District of Tennessee, and each of the parties consents to the
jurisdiction of such courts (and of the appropriate appellate courts) in any
such action or proceeding and waives any objection to venue laid therein.
Process in any action or proceeding referred to in the preceding sentence may be
served on either party anywhere in the world.
9.10 Section Headings, Construction
The headings of Sections in this Agreement are provided for
convenience only and will not affect its construction or interpretation. All
references to "Section" or "Sections" refer to the corresponding Section or
Sections of this Agreement unless otherwise specified. All words used in this
Agreement will be construed to be of such gender or number as the circumstances
require. Unless otherwise expressly provided, the word "including" does not
limit the preceding words or terms.
9.11 Severability
If any provision of this Agreement is held invalid or unenforceable by
any court of competent jurisdiction, the other provisions of this Agreement will
remain in full force and effect. Any provision of this Agreement held invalid or
unenforceable only in part or degree will remain in full force and effect to the
extent not held invalid or unenforceable.
9.12 Counterparts
This Agreement may be executed in one or more counterparts, each of
which will be deemed to be an original copy of this Agreement and all of which,
when taken together, will be deemed to constitute one and the same agreement.
9.13 Waiver of Jury Trial
THE PARTIES HERETO HEREBY WAIVE A JURY TRIAL IN ANY LITIGATION WITH
RESPECT TO THIS AGREEMENT, OR ARISING OUT OF OR CONCERNING EMPLOYEE'S EMPLOYMENT
WITH EMPLOYER OR TERMINATION THEREOF.
9.14 Prior Employment and Confidentiality Agreements.
Employer and Employee acknowledge that Employee has previously
executed a Confidentiality Agreement dated December 1, 2003 and an Agreement on
Condition of Employment dated January 22, 2004 (the "Other Agreements"), copies
of which are attached hereto as Schedule 1. The Employer and Employee agree that
the provisions of this Agreement shall control to the extent there is a conflict
between any terms hereof and provisions of the Other Agreements, but to the
extent there is no such conflict, the provisions of the Other Agreements shall
remain in effect.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date above first written above.
XXXXXXX X. XXXXXX
/s/ XXXXXXX X. XXXXXX
----------------------------------------
GTX, INC.
By: /s/ XXXXX X. XXXXXXXX
------------------------------------
Name: XXXXX X. XXXXXXXX
Title: VP, GENERAL COUNSEL
SCHEDULE 1
See attached
