ALLOS THERAPEUTICS, INC.
EMPLOYMENT AGREEMENT FOR
XXXXX X. XXXXXX
THIS EMPLOYMENT AGREEMENT (the "AGREEMENT") is entered into effective
as of August 12, 2002, by and between ALLOS THERAPEUTICS, INC., (the "COMPANY"),
and XXXXX X. XXXXXX ("EXECUTIVE") (collectively, the "PARTIES").
WHEREAS, the Company wishes to employ Executive on the terms set forth
herein; and
WHEREAS, Executive wishes to be so employed under the terms set forth
herein.
NOW, THEREFORE, in consideration of the promises, mutual covenants, the
above recitals, and the agreements herein set forth, and for other good and
valuable consideration, the sufficiency of which is hereby acknowledged, the
Parties agree to the following terms and conditions of Executive's employment:
1. EMPLOYMENT. The Company hereby agrees to employ Executive as VICE
PRESIDENT OF SALES AND MARKETING and Executive hereby accepts such employment
upon the terms and conditions set forth herein as of the date first written
above.
2. AT-WILL EMPLOYMENT. IT IS UNDERSTOOD AND AGREED BY THE COMPANY AND
EXECUTIVE THAT THIS AGREEMENT DOES NOT CONTAIN ANY PROMISE OR REPRESENTATION
CONCERNING THE DURATION OF EXECUTIVE'S EMPLOYMENT WITH THE COMPANY. EXECUTIVE
SPECIFICALLY ACKNOWLEDGES THAT HIS EMPLOYMENT WITH THE COMPANY IS AT-WILL AND
MAY BE ALTERED OR TERMINATED BY EITHER EXECUTIVE OR THE COMPANY AT ANY TIME,
WITH OR WITHOUT CAUSE AND/OR WITH OR WITHOUT NOTICE. THE NATURE, TERMS OR
CONDITIONS OF EXECUTIVE'S EMPLOYMENT WITH THE COMPANY CANNOT BE CHANGED BY ANY
ORAL REPRESENTATION, CUSTOM, HABIT OR PRACTICE, OR ANY OTHER WRITING. IN
ADDITION, THAT THE RATE OF SALARY, ANY BONUSES, PAID TIME OFF, OTHER
COMPENSATION, OR VESTING SCHEDULES ARE STATED IN UNITS OF YEARS OR MONTHS DOES
NOT ALTER THE AT-WILL NATURE OF THE EMPLOYMENT, AND DOES NOT MEAN AND SHOULD NOT
BE INTERPRETED TO MEAN THAT EXECUTIVE IS GUARANTEED EMPLOYMENT TO THE END OF ANY
PERIOD OF TIME OR FOR ANY PERIOD OF TIME. IN THE EVENT OF CONFLICT BETWEEN THIS
DISCLAIMER AND ANY OTHER STATEMENT, ORAL OR WRITTEN, PRESENT OR FUTURE,
CONCERNING TERMS AND CONDITIONS OF EMPLOYMENT, THE AT-WILL RELATIONSHIP
CONFIRMED BY THIS DISCLAIMER SHALL CONTROL. THIS AT-WILL STATUS CANNOT BE
ALTERED EXCEPT IN WRITING SIGNED BY EXECUTIVE AND THE CHAIRMAN OF THE BOARD OF
DIRECTORS.
3. DUTIES. Executive shall render full-time services to the Company as
its Vice President of Sales and Marketing. Executive shall devote his best
efforts and his full business time, skill and attention to the performance of
his duties on behalf of the Company. Of course, the Company reserves the right
to modify Executive's job duties and responsibilities as necessary.
4. POLICIES AND PROCEDURES. Executive agrees that he is subject to and
will comply with the policies and procedures of the Company, as such policies
and procedures may be modified, added to or eliminated from time to time at the
sole discretion of the Company, except to the extent any such policy or
procedure specifically conflicts with the express terms of
1
this Agreement. Executive further agrees and acknowledges that any written or
oral policies and procedures of the Company do not constitute contracts between
the Company and Executive.
5. COMPENSATION. For all services rendered and to be rendered
hereunder, the Company agrees to pay to the Executive, and the Executive agrees
to accept a base salary of $230,000 per annum. Any such salary shall be payable
in equal biweekly installments and shall be subject to such deductions or
withholdings as the Company is required to make pursuant to law, or by further
agreement with the Executive. The Board of Directors may adjust the Executive's
compensation from time to time in its sole and complete discretion.
6. BONUS. Executive will be eligible for a discretionary bonus, based
on both corporate and individual goals, in an amount equal to 25% of Executive's
base salary ("BONUS"). The decision to award the Bonus and/or to modify the
amount of any bonus given is within the sole and complete discretion of the
Board. In addition, Executive shall receive a one-time $40,000 signing bonus
(the "SIGNING BONUS") within the first thirty (30) days of his employment.
7. STOCK OPTIONS. The Executive will receive an option to purchase
42,855 shares of the Company's Common Stock under the Company's 2000 Stock
Incentive Compensation Plan (the "2000 PLAN") and an option to purchase an
additional 57,145 shares of the Company's Common Stock under the Company's 2002
Broad Based Equity Incentive Plan (the "2002 PLAN") at an exercise price equal
to the closing sale price of the Company's Common Stock as reported on the
Nasdaq National Market on the date such options are approved by the Compensation
Committee of the Board of Directors. Such options will be subject to the terms
and conditions of the 2000 Plan and 2002 Plan, respectively, and will vest in
accordance with the Company's standard vesting schedule.
8. OTHER BENEFITS. While employed by the Company as provided herein:
(a) EXECUTIVE AND EMPLOYEE BENEFITS. The Executive shall be entitled
to all benefits to which other executive officers of the Company are entitled,
on terms comparable thereto, including, without limitation, participation in the
401(k) plan, group insurance policies and plans, medical, health, vision, and
disability insurance policies and plans, and the like, which may be maintained
by the Company for the benefit of its executives. The Company reserves the right
to alter and amend the benefits received by Executive from time to time at the
Company's discretion.
(b) RELOCATION EXPENSE REIMBURSEMENT. The Executive shall receive,
against presentation of proper receipts and vouchers, reimbursement for the
following reasonable expenses associated with Executive's relocation to
Colorado:
(i) transportation, lodging and meal expenses for Executive and
Executive's spouse in connection with one trip from North Carolina to Colorado,
for up to five days, to locate suitable housing;
(ii) closing costs normally paid by a seller, not to exceed 6%
of the sales price, for the sale of Executive's principal residence in North
Carolina;
(iii) (A) shipping costs for the shipment of Executive's
household goods and two automobiles, from Executive's principal residence in
North Carolina to Colorado,
2
(B) storage costs for these items in Colorado for up to six months or until
Executive has purchased his principal residence in Colorado, whichever period is
shorter, and (C) the delivery costs for the delivery of these items to
Executive's principal residence in Colorado following the storage period;
(iv) travel expenses for Executive and Executive's spouse at the
time Executive and Executive's spouse move from Executive's principal residence
in North Carolina to Colorado;
(v) lodging and meal expenses until Executive makes short-term
living arrangements, and car rental expenses until the Executive's automobile
has arrived from Executive's principal residence in North Carolina;
(vi) rental payments for Executive's short-term living
arrangement for up to six months from the date Executive moves to Colorado, or
until Executive has purchased his principal residence in Colorado, whichever
period is shorter;
(vii) closing costs normally paid by a buyer for the purchase of
Executive's principal residence in Colorado; and
(viii) airfare for up to four roundtrip tickets, purchased at
discounted reservation rates, from Colorado to North Carolina in the event
Executive's principal residence in North Carolina is not sold after one year
from the date hereof.
In the event Executive resigns his employment for other than Good
Reason (as defined below) or is terminated by the Company for Just Cause (as
defined below) from the Company within 12 months from the date hereof, (A) the
Company shall not be required to reimburse Executive for any additional
relocation expenses described in this Section 8(b) (the "RELOCATION EXPENSES")
incurred by Executive after the Executive's last date of employment, and (B)
Executive hereby agrees to pay the Company, on a pro rata basis, for any
Relocation Expenses previously reimbursed by the Company. Within five days of
Executive's termination date, the Company shall notify Executive of the pro rata
amount due from Executive, which shall be calculated as follows: the amount of
the Relocation Expenses reimbursed by the Company as of Executive's termination
date, multiplied by the quotient of the number of days remaining from
Executive's termination date through the end of the 12-month period beginning as
of the date hereof, divided by 365 days. For example, if Executive's termination
date is January 31, 2003, and the Company has reimbursed Executive for $10,000
in Relocation Expenses as of January 31, 2003, the pro rata amount due from
Executive shall be $5,260 ($10,000 multiplied by the quotient of 192 days
divided by 365 days). Executive hereby agrees to send a check to the attention
of the Chief Financial Officer of the Company for such amount, made payable to
the Company, within 30 days of Executive's termination date. In addition, the
Company reserves the right to offset any amounts due from Executive for the
Relocation Expenses against any consideration payable by the Company to
Executive as a result of his termination from the Company (other than amounts
due for accrued salary and accrued but unused vacation)
3
(c) GROSS-UP PAYMENT.
(i) The Company will be responsible for (and will, as provided
in Section 8(c)(ii) and (iii) hereof, either pay to the applicable taxing
authority or reimburse Executive for) income and employment taxes payable with
respect to the Company's payment of the Signing Bonus and the Relocation
Expenses, as well as income and employment taxes payable with respect to
payments under this paragraph 8(c), provided however, that for purposes of
determining the amount of income and employment taxes for which the Company is
responsible under this paragraph 8(c), a single tax rate equal to the lesser of
the Effective Rate and forty percent (40%) shall be used in computing the
combined amount of all such income and employment taxes. The "Effective Rate"
means the quotient resulting from the following formula:
(FED + STATE - REFUND) / AGI, where
"FED" means the total federal income and employment taxes shown on
Executive's federal income tax return or withheld from Executive's wages for the
taxable year preceding the Company's payment to Executive pursuant to pursuant
to this Section 8(c);
"STATE" means the total state income and employment taxes shown on
Executive's state income tax returns or withheld from Executive's wages for the
taxable year preceding the Company's payment to Executive pursuant to pursuant
to this Section 8(c);
"REFUND" means the amount of any employment taxes refunded to Executive
with respect to the taxable year preceding the Company's payment to Executive
pursuant to pursuant to this Section 8(c); and
"AGI" means the "adjusted gross income" shown on Executive's federal
income tax return for the taxable year preceding the Company's payment to
Executive pursuant to pursuant to this Section 8(c).
(ii) The Company will pay to the applicable taxing authority,
or reimburse Executive for, income and employment taxes for which the Company is
responsible pursuant to this Section 8(c) at the same times as the Company makes
payments of the Signing Bonus or Relocation Expenses to the Executive. For this
purpose, the Company will estimate the Effective Rate.
(iii) Promptly after the Executive's income tax returns for
2002 and 2003 are prepared, the Executive shall cause his tax advisor to
calculate the Effective Rate in the manner provided by paragraph 8(c)(i) above.
Executive will provide such calculation (and an explanation of the calculation)
promptly to the Company. If the Company does not agree with such calculation,
Executive and the Company will cooperate to prepare a mutually agreeable
calculation. Within 21 days after the calculation of the Effective Rate is
finalized, the Company will provide Executive with a reconciliation of all
payments made to Executive and the applicable taxing authorities pursuant to
this Section 8(c) during the preceding year (the "Interim Grossup"), and the
amount such payments would have been using the lesser of the Effective Rate and
forty percent (40%) (the "Final Grossup"). If the Interim Grossup is less than
the Final Grossup, then the Company will pay the difference to Executive within
15 days after the
4
reconciliation is provided to Executive. If the Final Grossup is less than the
Interim Grossup, then the Executive will pay the difference to the Company
within 15 days after the reconciliation is provided to Executive. Any payments
made during the previous year pursuant to this paragraph 8(c)(iii) will be
disregarded for purposes of computing the Final Grossup and the Interim Grossup.
(d) OUT-OF-POCKET EXPENSE REIMBURSEMENT. The Executive shall
receive, against presentation of proper receipts and vouchers, reimbursement for
direct and reasonable out-of-pocket expenses incurred by him in connection with
the performance of his duties hereunder, according to the policies of the
Company.
(e) PERSONAL TIME OFF. The Executive shall be entitled to
personal time off and sick leave according to the Company's benefits package.
9. PROPRIETARY AND OTHER OBLIGATIONS. Executive agrees to sign a
Proprietary Information, Inventions, Non-Competition and Non-Solicitation
Agreement in the form attached hereto as Exhibit A (the "CONFIDENTIALITY
AGREEMENT").
10. TERMINATION. Executive and the Company each acknowledge that either
party has the right to terminate Executive's employment with the Company at any
time for any reason whatsoever, with or without cause or advance notice pursuant
to the following:
(a) TERMINATION BY DEATH OR DISABILITY. Subject to applicable
state or federal law, in the event Executive shall die during the period of his
employment hereunder or become permanently disabled, as evidenced by notice to
the Company and Executive's inability to carry out his job responsibilities for
a continuous period of more than three months, Executive's employment and the
Company's obligation to make payments hereunder shall terminate on the date of
his death, or the date upon which, in the sole determination of the Board of
Directors, Executive has failed to carry out his job responsibilities for three
months, except that the Company shall pay Executive's estate any salary earned
but unpaid prior to termination, all accrued but unused vacation and any
business expenses that were incurred but not reimbursed as of the date of
termination. Vesting of any unvested stock options shall cease on the date of
termination.
(b) VOLUNTARY RESIGNATION BY EXECUTIVE. In the event Executive
voluntarily terminates his employment with the Company (other than for Good
Reason), the Company's obligation to make payments hereunder shall cease upon
such termination, except that the Company shall pay Executive any salary earned
but unpaid prior to termination, all accrued but unused vacation and any
business expenses that were incurred but not reimbursed as of the date of
termination. Vesting of any unvested stock options shall cease on the date of
termination.
(c) TERMINATION FOR JUST CAUSE. In the event the Executive is
terminated by the Company for Just Cause, the Company's obligation to make
payments hereunder shall cease upon the date of receipt by Executive of written
notice of such termination (the "DATE OF TERMINATION" for purposes of this
paragraph 10(c)), except that the Company shall pay Executive any salary earned
but unpaid prior to termination, all accrued but unused vacation and any
business expenses that were incurred but not reimbursed as of the date of
termination. Vesting of any unvested stock options shall cease on the date of
termination.
5
(d) TERMINATION BY THE COMPANY WITHOUT JUST CAUSE OR
RESIGNATION FOR GOOD REASON (OTHER THAN CHANGE IN CONTROL). The Company shall
have the right to terminate Executive's employment with the Company at any time
without Just Cause. In the event Executive is terminated by the Company without
Just Cause or Executive resigns for Good Reason (other than in connection with a
Change in Control, as defined below), and upon the execution of a full general
release by Executive ("RELEASE", in the form attached hereto as Exhibit B),
releasing all claims known or unknown that Executive may have against the
Company as of the date Executive signs such release, and upon the written
acknowledgment of his continuing obligations under the Confidentiality
Agreement, Executive shall be entitled to receive the following severance
benefits: (i) continuation of Executive's base salary, then in effect, for a
period of six (6) months following the Termination Date, paid on the same basis
and at the same time as previously paid; (ii) payment of any accrued but unused
vacation and sick leave; and (iii) the Company shall pay the premiums of
Executive's group health insurance COBRA continuation coverage, including
coverage for Executive's eligible dependents, for a maximum period of six (6)
months following a termination without Just Cause or resignation for Good
Reason; provided, however, that (a) the Company shall pay premiums for
Executive's eligible dependents only for coverage for which those eligible
dependents were enrolled immediately prior to the termination without Just Cause
or resignation for Good Reason and (b) the Company's obligation to pay such
premiums shall cease immediately upon Executive's eligibility for comparable
group health insurance provided by a new employer of Executive.
(e) CHANGE IN CONTROL SEVERANCE BENEFITS. In the event that
the Company terminates Executive's employment without Just Cause or Executive
resigns for Good Reason within one (1) month prior to or thirteen (13) months
following the effective date of a Change in Control, ("CHANGE IN CONTROL
TERMINATION"), and upon the execution of a Release, Executive shall be entitled
to receive the following Change in Control severance benefits: (i) continuation
of Executive's base salary, then in effect, for a period of one (1) year
following the Termination Date, paid on the same basis and at the same time as
previously paid; (ii) payment of any accrued but unused vacation and sick leave;
(iii) a bonus in the amount equal to the bonus amount paid in the year
immediately preceding the Change in Control or 50% of the maximum bonus
eligibility if the Executive was not employed by the Company during the prior
year bonus period; and (iv) the Company shall pay the premiums of Executive's
group health insurance COBRA continuation coverage, including coverage for
Executive's eligible dependents, for a maximum period of twelve (12) months
following a Change in Control Termination; provided, however, that (a) the
Company shall pay premiums for Executive's eligible dependents only for coverage
for which those eligible dependents were enrolled immediately prior to the
Change in Control Termination and (b) the Company's obligation to pay such
premiums shall cease immediately upon Executive's eligibility for comparable
group health insurance provided by a new employer of Executive. If Executive
obtains new employment pursuant to which he is employed on an average of 30
hours or more each week, he may request, upon written notification to the
Company, to receive any unpaid severance benefits (subject to required
deductions and tax withholdings) within 14 days after receipt by the company of
such written notice. Executive agrees that the Company's payment of health
insurance premiums will satisfy its obligations under COBRA for the period
provided. No insurance premium payments will be made following the effective
date of Executive's coverage by a health insurance plan of a subsequent
employer. For the balance of the period that Executive is entitled to coverage
under federal COBRA law, if any, Executive shall be entitled to maintain such
coverage at Executive's own expense.
6
In addition, notwithstanding anything contained in Executive's stock
option agreements to the contrary, in the event the Company (or any surviving or
acquiring corporation) terminates Executive's employment without Just Cause or
Executive resigns for Good Reason within one (1) month prior to or thirteen (13)
months following the effective date of a Change in Control, and any surviving
corporation or acquiring corporation assumes Executive's stock options or
substitutes similar options for Executive's stock options in accordance with the
terms of the 2000 Plan and/or the 2002 Plan, as applicable, then the vesting of
Executive's stock options (or any substitute options) shall be accelerated in
full and the term and the period during which such options may be exercised
shall be extended to twelve (12) months after the date of Executive's
termination of employment; provided, that, in no event shall such options be
exercisable after the expiration date of such options as set forth in the grant
notice and/or agreement evidencing such options. Alternatively, in connection
with any Change of Control, if any surviving corporation or acquiring
corporation does not assume Executive's stock options or substitute similar
options for Executive's stock options in accordance with the terms of the 2000
Plan and/or the 2002 Plan, as applicable, then the vesting of Executive's stock
options shall be accelerated in full.
11. DEFINITIONS.
(a) JUST CAUSE. As used in this Agreement, "JUST CAUSE" shall
mean the occurrence of one or more of the following: (i) Executive's conviction
of a felony or a crime involving moral turpitude or dishonesty; (ii) Executive's
participation in a fraud or act of dishonesty against the Company; (iii)
Executive's intentional and material damage to the Company's property; (iv)
material breach of Executive's employment agreement, the Company's written
policies, or the Confidentiality Agreement that is not remedied by Executive
within fourteen (14) days of written notice of such breach from the Board; or
(v) conduct by Executive which demonstrates Executive's gross unfitness to serve
the Company as Vice President of Sales and Marketing, as determined in the sole
discretion of the Company's Board of Directors. Executive's physical or mental
disability or death shall not constitute cause hereunder.
(b) GOOD REASON. As used in this Agreement, "GOOD REASON"
shall mean any one of the following events which occurs on or after the
commencement of Executive's employment without Executive's consent: (i) any
reduction of Executive's then existing annual salary base or annual bonus target
by more than ten percent (10%), unless the Executive accepts such reduction in
compensation opportunity or such reduction is done in conjunction with similar
reductions for similarly situated executives of the Company; (ii) any request by
the Company that the Executive relocate to a work site that would increase
Executive's one-way commute distance by more than thirty-five (35) miles from
his then principal residence in Colorado, unless the Executive accepts such
relocation opportunity; or (iii) for purposes of Section 10(e) only, if the
Company or any surviving corporation following a Change in Control fails to
offer the Executive a position that is equivalent in pay, benefits and
responsibilities.
(c) CHANGE IN CONTROL. As used in this Agreement, a "CHANGE IN
CONTROL" is defined as: (a) a sale, lease, exchange or other transfer in one
transaction or a series of related transactions of all or substantially all of
the assets of the Company (other than the transfer of the Company's assets to a
majority-owned subsidiary corporation); (b) a merger or consolidation in which
the Company is not the surviving corporation (other than a merger or
consolidation in which shareholders immediately before the merger or
consolidation have, immediately after the merger or consolidation, greater stock
voting power); (c) a reverse merger in which the Company
7
is the surviving corporation but the shares of the Company's common stock
outstanding immediately preceding the merger are converted by virtue of the
merger into other property, whether in the form of securities, cash or otherwise
(other than a reverse merger in which shareholders immediately before the merger
have, immediately after the merger, greater stock voting power); or (d) any
transaction or series of related transactions in which in excess of 50% of the
Company's voting power is transferred.
12. TERMINATION OF COMPANY'S OBLIGATIONS. Notwithstanding any
provisions in this Agreement to the contrary, the Company's obligations, and
Executive's rights pursuant to Sections 10(d) and 10(e) herein, regarding salary
continuation and the payment of COBRA premiums, shall cease and be rendered a
nullity immediately should Executive fail to comply with the provisions of the
Confidentiality Agreement or if Executive directly or indirectly competes with
the Company.
13. MISCELLANEOUS.
(a) TAXES. Except as specifically set forth herein, Executive
agrees to be responsible for the payment of any taxes due on any and all
compensation, stock option, or benefits provided by the Company pursuant to this
Agreement.
(b) MODIFICATION/WAIVER. This Agreement may not be amended,
modified, superseded, canceled, renewed or expanded, or any terms or covenants
hereof waived, except by a writing executed by each of the parties hereto or, in
the case of a waiver, by the party waiving compliance. Failure of any party at
any time or times to require performance of any provision hereof shall in no
manner affect his or its right at a later time to enforce the same. No waiver by
a party of a breach of any term or covenant contained in this Agreement, whether
by conduct or otherwise, in any one or more instances shall be deemed to be or
construed as a further or continuing waiver of agreement contained in the
Agreement.
(c) SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provisions had never been contained herein.
(d) SUCCESSORS AND ASSIGNS. This Agreement is intended to bind
and inure to the benefit of and be enforceable by Executive and the Company, and
their respective successors, assigns, heirs, executors and administrators,
except that Executive may not assign any of his duties hereunder and he may not
assign any of his rights hereunder without the written consent of the Company,
which shall not be withheld unreasonably.
(e) NOTICES. All notices given hereunder shall be given by
certified mail, addressed, or delivered by hand, to the other party at his or
its address as set forth herein, or at any other address hereafter furnished by
notice given in like manner. Executive promptly shall notify Company of any
change in Executive's address. Each notice shall be dated the date of its
mailing or delivery and shall be deemed given, delivered or completed on such
date.
8
(f) GOVERNING LAW; PERSONAL JURISDICTION AND VENUE. This
Agreement and all disputes relating to this Agreement shall be governed in all
respects by the laws of the State of Colorado as such laws are applied to
agreements between Colorado residents entered into and performed entirely in
Colorado. The Parties acknowledge that this Agreement constitutes the minimum
contacts to establish personal jurisdiction in Colorado and agree to a Colorado
court's exercise of personal jurisdiction. The Parties further agree that any
disputes relating to this Agreement shall be brought in courts located in the
State of Colorado.
(g) ENTIRE AGREEMENT. This Agreement together with the
Exhibits A and B attached hereto set forth the entire agreement and
understanding of the parties hereto with regard to the employment of the
Executive by the Company and supersede any and all prior agreements,
arrangements and understandings, written or oral, pertaining to the subject
matter hereof. No representation, promise or inducement relating to the subject
matter hereof has been made to a party that is not embodied in these Agreements,
and no party shall be bound by or liable for any alleged representation, promise
or inducement not so set forth.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
9
IN WITNESS WHEREOF, the parties have each duly executed this Employment
Agreement effective as of the day and year first above written.
ALLOS THERAPEUTICS, INC.
/s/ Xxxxxxx X. Xxxx
-------------------------------------------------
By: Xxxxxxx X. Xxxx
Its: President and Chief Executive Officer
Address: 00000 XxxxxxXxxxx Xxxx
Xxxxxxxxxxx, XX 00000
EXECUTIVE:
/s/ Xxxxx X. XxXxxx
-------------------------------------------------
Xxxxx X. XxXxxx
Address:
-----------------------------------------
-----------------------------------------
-----------------------------------------
10
EXHIBIT A TO EMPLOYMENT AGREEMENT
MANAGER, EXECUTIVE PERSONNEL OR ASSISTANTS'
PROPRIETARY INFORMATION, INVENTIONS,
NON-COMPETITION, AND NON-SOLICITATION AGREEMENT
This Manager, Executive Personnel or Assistants' Proprietary
Information, Inventions, Non-competition, and Non-solicitation Agreement
("Agreement") is made in consideration for my employment or continued employment
by ALLOS THERAPEUTICS, INC. or its subsidiaries or affiliates (the "Company"),
and the compensation now and hereafter paid to me. I hereby agree as follows:
1. NONDISCLOSURE.
1.1 RECOGNITION OF COMPANY'S RIGHTS; NONDISCLOSURE. At all times during
my employment and thereafter, I will hold in strictest confidence and
will not disclose, use, lecture upon or publish any of the Company's
Proprietary Information (defined below), except as such disclosure, use
or publication may be required in connection with my work for the
Company, or unless an officer of the Company expressly authorizes such
in writing. I will obtain the Company's written approval before
publishing or submitting for publication any material (written, verbal,
or otherwise) that relates to my work at the Company and/or
incorporates any Proprietary Information. I hereby assign to the
Company any rights I may have or acquire in such Proprietary
Information and recognize that all Proprietary Information shall be the
sole property of the Company and its assigns.
1.2 PROPRIETARY INFORMATION. The term "Proprietary Information" shall
mean any and all confidential and/or proprietary knowledge, data or
information of the Company. By way of illustration but not limitation,
"Proprietary Information" includes (a) trade secrets, inventions, mask
works, ideas, processes, formulas, source and object codes, data,
programs, other works of authorship, know-how, improvements,
discoveries, developments, designs and techniques (hereinafter
collectively referred to as "Inventions"); and (b) information
regarding plans for research, development, new products, marketing and
selling, business plans, budgets and unpublished financial statements,
licenses, prices and costs, suppliers and customers; and (c)
information regarding the skills and compensation of other employees of
the Company. Notwithstanding the foregoing, it is understood that, at
all such times, I am free to use information which is generally known
in the trade or industry, which is not gained as result of a breach of
this Agreement, and my own, skill, knowledge, know-how and experience
to whatever extent and in whichever way I wish.
1.3 THIRD PARTY INFORMATION. I understand, in addition, that the
Company has received and in the future will receive from third parties
confidential or proprietary information ("Third Party Information")
subject to a duty on the Company's part to maintain the confidentiality
of such information and to use it only for certain limited purposes.
During the term of my employment and thereafter, I will hold Third
Party Information in the strictest confidence and will not disclose to
anyone (other than Company personnel who need to know such information
in connection with their work for the Company) or use, except in
connection with my work for the Company, Third Party Information unless
expressly authorized by an officer of the Company in writing.
1.4 NO IMPROPER USE OF INFORMATION OF PRIOR EMPLOYERS AND OTHERS.
During my employment by the Company I will not improperly use or
disclose any confidential information or trade secrets, if any, of any
former employer or any other person to whom I have an obligation of
confidentiality, and I will not bring onto the premises of the Company
any unpublished documents or any property belonging to any former
employer or any other person to
11
whom I have an obligation of confidentiality unless consented to in
writing by that former employer or person. I will use in the
performance of my duties only information which is generally known and
used by persons with training and experience comparable to my own,
which is common knowledge in the industry or otherwise legally in the
public domain, or which is otherwise provided or developed by the
Company.
2. ASSIGNMENT OF INVENTIONS.
2.1 PROPRIETARY RIGHTS. The term "Proprietary Rights" Shall mean all
trade secret, patent, copyright, mask work and other intellectual
property rights throughout the world.
2.2 PRIOR INVENTIONS. Inventions, if any, patented or unpatented, which
I made prior to the commencement of my employment with the Company are
excluded from the scope of this Agreement. To preclude any possible
uncertainty, I have set forth on Exhibit A (Previous Inventions)
attached hereto a complete list of all Inventions that I have, alone or
jointly with others, conceived, developed or reduced to practice or
caused to be conceived, developed or reduced to practice prior to the
commencement of my employment with the Company, that I consider to be
my property or the property of third parties and that I wish to have
excluded from the scope of this Agreement (collectively referred to as
"Prior Inventions"). If disclosure of any such Prior Invention would
cause me to violate any prior confidentiality agreement, I understand
that I am not to list such Prior Inventions in Exhibit A but am only to
disclose a cursory name for each such invention, a listing of the
party(ies) to whom it belongs and the fact that full disclosure as to
such inventions has not been made for that reason. A space is provided
on Exhibit A for such purpose. If no such disclosure is attached, I
represent that there are no Prior Inventions. If, in the course of my
employment with the Company, I incorporate a Prior Invention into a
Company product, process or machine, the Company is hereby granted and
shall have a nonexclusive, royalty-free, irrevocable, perpetual,
worldwide license (with rights to sublicense through multiple tiers of
sublicensees) to make, have made, modify, use and sell such Prior
Invention. Notwithstanding the foregoing, I agree that I will not
incorporate, or permit to be incorporated, Prior Inventions in any
Company Inventions without the Company's prior written consent.
2.3 ASSIGNMENT OF INVENTIONS. Subject to Sections 2.4, and 2.6, I
hereby assign and agree to assign in the future (when any such
Inventions or Proprietary Rights are first reduced to practice or first
fixed in a tangible medium, as applicable) to the Company all my right,
title and interest in and to any and all Inventions (and all
Proprietary Rights with respect thereto) whether or not patentable or
registrable under copyright or similar statutes, made or conceived or
reduced to practice or learned by me, either alone or jointly with
others, during the period of my employment with the Company. Inventions
assigned to the Company, or to a third party as directed by the Company
pursuant to this Section 2, are hereinafter referred to as "Company
Inventions."
2.4 NONASSIGNABLE INVENTIONS. I recognize that, in the event of a
specifically applicable state law, regulation, rule, or public policy
("Specific Inventions Law"), this Agreement will not be deemed to
require assignment of any invention which qualifies fully for
protection under a Specific Inventions Law by virtue of the fact that
any such invention was, for example, developed entirely on my own time
without using the Company's equipment, supplies, facilities, or trade
secrets and neither related to the Company's actual or anticipated
business, research or development, nor resulted from work performed by
me for the Company. In the absence of a Specific Inventions Law, the
preceding sentence will not apply.
2.5 OBLIGATION TO KEEP COMPANY INFORMED. During the period of my
employment and for six months after the last day of my employment with
the Company, I will promptly disclose to the Company fully and in
writing all Inventions authored, conceived or reduced to practice by
me, either alone or jointly with others. In
12
addition, I will promptly disclose to the Company all patent
applications filed by me or on my behalf within a year after
termination of employment. At the time of each such disclosure, I will
advise the Company in writing of any Inventions that I believe fully
qualify for protection under the provisions of a Specific Inventions
Law; and I will at that time provide to the Company in writing all
evidence necessary to substantiate that belief. The Company will keep
in confidence and will not use for any purpose or disclose to third
parties without my consent any confidential information disclosed in
writing to the Company pursuant to this Agreement relating to
Inventions that qualify fully for protection under a Specific
Inventions Law. I will preserve the confidentiality of any Invention
that does not fully qualify for protection under a Specific Inventions
Law.
2.6 GOVERNMENT OR THIRD PARTY. I also agree to assign all my right,
title and interest in and to any particular Invention to a third party,
including without limitation the United States, as directed by the
Company.
2.7 WORKS FOR HIRE. I acknowledge that all original works of authorship
which are made by me (solely or jointly with others) within the scope
of my employment and which are protectable by copyright are "works made
for hire," pursuant to United States Copyright Act (17 U.S.C., Section
101).
2.8 ENFORCEMENT OF PROPRIETARY RIGHTS. I will assist the Company in
every proper way to obtain, and from time to time enforce, United
States and foreign Proprietary Rights relating to Company Inventions in
any and all countries. To that end I will execute, verify and deliver
such documents and perform such other acts (including appearances as a
witness) as the Company may reasonably request for use in applying for,
obtaining, perfecting, evidencing, sustaining and enforcing such
Proprietary Rights and the assignment thereof. In addition, I will
execute, verify and deliver assignments of such Proprietary Rights to
the Company or its designee. My obligation to assist the Company with
respect to Proprietary Rights relating to such Company Inventions in
any and all countries shall continue beyond the termination of my
employment, but the Company shall compensate me at a reasonable rate
after my termination for the time actually spent by me at the Company's
request on such assistance.
In the event the Company is unable for any reason, after reasonable
effort, to secure my signature on any document needed in connection
with the actions specified in the preceding paragraph, I hereby
irrevocably designate and appoint the Company and its duly authorized
officers and agents as my agent and attorney in fact, which appointment
is coupled with an interest, to act for and in my behalf to execute,
verify and file any such documents and to do all other lawfully
permitted acts to further the purposes of the preceding paragraph with
the same legal force and effect as if executed by me. I hereby waive
and quitclaim to the Company any and all claims, of any nature
whatsoever, which I now or may hereafter have for infringement of any
Proprietary Rights assigned hereunder to the Company.
3. NO CONFLICTS OR SOLICITATION. I acknowledge that during my employment I will
have access to and knowledge of Proprietary Information. I also acknowledge that
during my employment with the Company, I have held and/or will hold a management
or executive position or am, or will be, an assistant to a manager or executive.
To protect the Company's Proprietary Information, I agree that during the period
of my employment by the Company I will not, without the Company's express
written consent, engage in any other employment or business activity directly
related to the business in which the Company is now involved or becomes
involved, nor will I engage in any other activities which conflict with my
obligations to the Company. To protect the Company's Proprietary Information,
and because of the position in the Company that I hold, I agree that during my
employment with the Company whether full-time or part-time and for a period of
one year after my last day of employment with the Company, I will not (a)
directly or indirectly solicit or induce any employee of the Company to
terminate
13
or negatively alter his or her relationship with the Company or (b) directly or
indirectly solicit the business of any client or customer of the Company (other
than on behalf of the Company) or (c) directly or indirectly induce any client,
customer, supplier, vendor, consultant or independent contractor of the Company
to terminate or negatively alter his, her or its relationship with the Company.
I agree that the geographic scope of the non-solicitation should include the
"Restricted Territory" (as defined below).
4. If any restriction set forth in this Section 4 is found by any court of
competent jurisdiction to be unenforceable because it extends for too long a
period of time or over too great a range of activities or in too broad a
geographic area, it shall be interpreted to extend only over the maximum period
of time, range of activities or geographic area as to which it may be
enforceable.
5. COVENANT NOT TO COMPETE. I acknowledge that during my employment I will have
access to and knowledge of Proprietary Information. I also acknowledge that
during my employment with the Company, I have held and/or will hold a management
or executive position or am, or will be, an assistant to a manager or executive.
To protect the Company's Proprietary Information, and because of the position in
the Company that I may hold, I agree that during my employment with the Company
whether full-time or part-time and for a period of one year after my last day of
employment with the Company, I will not directly or indirectly engage in
(whether as an employee, consultant, proprietor, partner, director or
otherwise), or have any ownership interest in, or participate in the financing,
operation, management or control of, any person, firm, corporation or business
that engages in a "Restricted Business" in a "Restricted Territory" (as defined
below). It is agreed that ownership of (i) no more than one percent (1%) of the
outstanding voting stock of a publicly traded corporation, or (ii) any stock I
presently own shall not constitute a violation of this provision.
5.1 REASONABLE. I agree and acknowledge that the time limitation on the
restrictions in this paragraph, combined with the geographic scope, is
reasonable. I also acknowledge and agree that this paragraph is
reasonably necessary for the protection of Company's Proprietary
Information as defined in paragraph 1.2 herein, that through my
employment I shall receive adequate consideration for any loss of
opportunity associated with the provisions herein, and that these
provisions provide a reasonable way of protecting Company's business
value which will be imparted to me. If any restriction set forth in
this Section 5 is found by any court of competent jurisdiction to be
unenforceable because it extends for too long a period of time or over
too great a range of activities or in too broad a geographic area, it
shall be interpreted to extend only over the maximum period of time,
range of activities or geographic area as to which it may be
enforceable.
5.2 As used herein, the terms:
(i) "Restricted Business" shall mean the development or
commercialization of radiosensitizers.
(ii) "Restricted Territory" shall mean any state, county, or
locality in the United States in which the Company conducts business
and any other country, city, state, jurisdiction, or territory in which
the Company does business.
6. RECORDS. I agree to keep and maintain adequate and current records (in the
form of notes, sketches, drawings and in any other form that may be required by
the Company) of all Proprietary Information developed by me and all Inventions
made by me during the period of my employment at the Company, which records
shall be available to and remain the sole property of the Company at all times.
7. NO CONFLICTING OBLIGATION. I represent that my performance of all the terms
of this Agreement and as an employee of the Company does not and will not breach
any agreement to keep in confidence information acquired by me in confidence or
in trust prior to my employment by the Company. I have not entered into, and I
agree I will not enter into, any agreement either written or oral in conflict
herewith.
8. RETURN OF COMPANY MATERIALS. When I leave the employ of the Company, I will
deliver to the Company any and all drawings, notes, memoranda, specifications,
devices, formulas, and documents, together with all copies thereof, and any
other material containing or disclosing any Company Inventions, Third Party
Information or Proprietary Information of the Company, unless agreed to by the
Company. I further agree that any property situated on the Company's premises
and owned by the Company, including disks and other storage media, filing
cabinets or other work areas, is subject to inspection by Company personnel at
any time with or without notice.
14
9. LEGAL AND EQUITABLE REMEDIES. Because my services are personal and unique and
because I may have access to and become acquainted with the Proprietary
Information of the Company, the Company shall have the right to enforce this
Agreement and any of its provisions by injunction, specific performance or other
equitable relief, without bond and without prejudice to any other rights and
remedies that the Company may have for a breach of this Agreement.
10. NOTICES. Any notices required or permitted hereunder shall be given to the
appropriate party at the address specified below or at such other address as the
party shall specify in writing. Such notice shall be deemed given upon personal
delivery to the appropriate address or if sent by certified or registered mail,
three days after the date of mailing.
11. NOTIFICATION OF NEW EMPLOYER. In the event that I leave the employ of the
Company, I hereby consent to the notification of my new employer of my rights
and obligations under this Agreement.
12. GENERAL PROVISIONS.
12.1 GOVERNING LAW; CONSENT TO PERSONAL JURISDICTION AND EXCLUSIVE
FORUM. This Agreement will be governed by and construed according to
the laws of the State of Colorado as such laws are applied to
agreements entered into and to be performed entirely within Colorado
between Colorado residents. I hereby expressly understand and consent
that my employment is a transaction of business in the State of
Colorado and constitutes the minimum contacts necessary to make me
subject to the personal jurisdiction of the state courts and federal
courts located in the State of Colorado, for any lawsuit filed against
me by Company arising from or related to this Agreement. I agree and
acknowledge that any controversy arising out of or relating to this
Agreement or the breach thereof, or any claim or action to enforce this
Agreement or portion thereof, or any controversy or claim requiring
interpretation of this Agreement must be brought in a forum located
within the State of Colorado. No such action may be brought in any
forum outside the State of Colorado. Any action brought in
contravention of this paragraph by one party is subject to dismissal at
any time and at any stage of the proceedings by the other, and no
action taken by the other in defending, counter claiming or appealing
shall be construed as a waiver of this right to immediate dismissal. A
party bringing an action in contravention of this paragraph shall be
liable to the other party for the costs, expenses and attorney's fees
incurred in successfully dismissing the action or successfully
transferring the action to the state courts and federal courts located
in the State of Colorado.
12.2 SEVERABILITY. In case any one or more of the provisions contained
in this Agreement shall, for any reason, be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect the other provisions of this
Agreement, and this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein. If
moreover, any one or more of the provisions contained in this Agreement
shall for any reason be held to be excessively broad as to duration,
geographical scope, activity or subject, it shall be construed by
limiting and reducing it, so as to be enforceable to the extent
compatible with the applicable law as it shall then appear.
12.3 SUCCESSORS AND ASSIGNS. This Agreement will be binding upon my
heirs, executors, administrators and other legal representatives and
will be for the benefit of the Company, its successors, and its
assigns.
12.4 SURVIVAL. The provisions of this Agreement shall survive the
termination of my employment and the assignment of this Agreement by
the Company to any successor in interest or other assignee.
12.5 EMPLOYMENT. I agree and understand that my employment is at-will
which means I or the company each have the right to terminate my
employment at will, with or without advanced notice and with or without
cause. I further agree and understand that nothing in this Agreement
shall confer any right with respect to continuation of employment by
the Company, nor shall it interfere in any way
15
with my right or the Company's right to terminate my employment at any
time, with or without cause.
12.6 WAIVER. No waiver by the Company of any breach of this Agreement
shall be a waiver of any preceding or succeeding breach. No waiver by
the Company of any right under this Agreement shall be construed as a
waiver of any other right. The Company shall not be required to give
notice to enforce strict adherence to all terms of this Agreement.
12.7 ENTIRE AGREEMENT. The obligations pursuant to Sections 1 through 8
(including all subparts) of this Agreement shall apply to any time
during which I was previously employed, or am in the future employed,
by the Company as a consultant if no other agreement governs
nondisclosure and assignment of inventions during such period. This
Agreement is the final, complete and exclusive agreement of the parties
with respect to the subject matter hereof and supersedes and merges all
prior discussions between us. No modification of or amendment to this
Agreement, nor any waiver of any rights under this Agreement, will be
effective unless in writing and signed by the party to be charged. Any
subsequent change or changes in my duties, salary or compensation will
not affect the validity or scope of this Agreement
This Agreement shall be effective as of the August 12, 2002.
I HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS. I HAVE
COMPLETELY FILLED OUT EXHIBIT A TO THIS AGREEMENT.
Dated:
---------------------
/s/ Xxxxx X. XxXxxx
-----------------------------------------------------
Xxxxx X. XxXxxx
ACCEPTED AND AGREED TO:
/s/ Xxxxxxx X. Xxxx
-----------------------------------------------------
Xxxxxxx X. Xxxx
EXHIBIT A
TO: ALLOS THERAPEUTICS, INC.
FROM: XXXXX X. XXXXXX
DATE:
--------------------------
SUBJECT: PREVIOUS INVENTIONS
1. Except as listed in Section 2 below, the following is a complete
list of all inventions or improvements relevant to the subject matter of my
employment by ALLOS THERAPEUTICS, INC. that have been made or conceived or first
reduced to practice by me alone or jointly with others prior to my engagement by
the Company:
[ ] No inventions or improvements.
[ ] See below:
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
[ ] Additional sheets attached.
2. Due to a prior confidentiality agreement, I cannot complete the
disclosure under Section 1 above with respect to inventions or improvements
generally listed below, the proprietary rights and duty of confidentiality with
respect to which I owe to the following party(ies):
INVENTION OR IMPROVEMENT PARTY(IES) RELATIONSHIP
1.
----------------------- ------------------- -----------------------------------------
2.
----------------------- ------------------- -----------------------------------------
3.
----------------------- ------------------- -----------------------------------------
[ ] Additional sheets attached.
EXHIBIT B TO
EMPLOYMENT AGREEMENT
RELEASE AGREEMENT
I understand that my position with Allos Therapeutics, Inc. (the "Company")
terminated effective ___________, _____ (the "Separation Date"). The Company has
agreed that if I choose to sign this Release, the Company will pay me certain
severance or consulting benefits pursuant to the terms of the
Employment
Agreement (the "Agreement") between myself and the Company, and any agreements
incorporated therein by reference. I understand that I am not entitled to such
benefits unless I sign this Release and it becomes fully effective. I understand
that, regardless of whether I sign this Release, the Company will pay me all of
my accrued salary and vacation through the Separation Date, to which I am
entitled by law.
In consideration for the severance benefits I am receiving under the Agreement,
I hereby release the Company and its officers, directors, agents, attorneys,
employees, shareholders, parents, subsidiaries, and affiliates from any and all
claims, liabilities, demands, causes of action, attorneys' fees, damages, or
obligations of every kind and nature, whether they are now known or unknown,
arising at any time prior to the date I sign this Release. This general release
includes, but is not limited to: all federal and state statutory and common law
claims, claims related to my employment or the termination of my employment or
related to breach of contract, tort, wrongful termination, discrimination, wages
or benefits, or claims for any form of equity or compensation. Notwithstanding
the release in the preceding sentence, I am not releasing any right of
indemnification I may have for any liabilities arising from my actions within
the course and scope of my employment with the Company.
If I am forty (40) years of age or older as of the Separation Date, I
acknowledge that I am knowingly and voluntarily waiving and releasing any rights
I may have under the federal Age Discrimination in Employment Act of 1967, as
amended ("ADEA"). I also acknowledge that the consideration given for the waiver
in the above paragraph is in addition to anything of value to which I was
already entitled. I have been advised by this writing, as required by the ADEA
that: (a) my waiver and release do not apply to any claims that may arise after
my signing of this Release; (b) I should consult with an attorney prior to
executing this Release; (c) I have twenty-one (21) days within which to consider
this Release (although I may choose to voluntarily execute this Release
earlier); (d) I have seven (7) days following the execution of this release to
revoke the Release; and (e) this Release will not be effective until the eighth
day after this Release has been signed both by me and by the Company ("Effective
Date").
Agreed:
ALLOS THERAPEUTICS INC. XXXXX X. XXXXXX
By: Xxxxxxx X. Xxxx Xxxxx X. XxXxxx
------------------------------------- --------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Date: Date:
---------------------------------- -----------------------------
