EXHIBIT 10.11
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made and entered into
as of October 1, 2003 (the "Effective Date") by and between GTx, INC., located
at 0 Xxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxx, Xxxxxxxxx 00000 (the "Employer"), and
XXXXX X. XXXXXXXX (the "Employee"), residing at 0000 Xxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxx 00000.
WHEREAS, the Employer desires to retain the services of Employee as
General Counsel and Secretary; 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.
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"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 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. 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; 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.
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.
"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 October 1, 2001 (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
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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 patenable 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:
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(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 by act of the Board 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 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
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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
President of the Employer.
2.3 Duties
The Employee will have such duties as are assigned or
delegated to the Employee by the Board of Directors, CEO or the President, and
will initially serve as General Counsel and Secretary 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 Board of Directors, CEO
and the President 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 Board of Directors, CEO 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 on the
15th and 30th day of each month a bi-weekly salary of $7,916.67 (the
"Salary"), which is the equivalent of
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$190,000 per year. Employee's Salary may be adjusted from time to time
by agreement of the Employee and the CEO.
(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.
(d) In accordance with the stock option letter Employee
has received from Employer on or before the date of execution hereof
(the "Option Letter"), Employee has received options to purchase common
stock of the Employer pursuant to the terms of the Option Letter and
related Stock Option Subscription Agreement executed in connection
therewith, as additional consideration from Employer for Employee
entering into this Agreement.
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 CEO or 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 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 CEO or President. The Employee will also be entitled to the paid
holidays set forth in the Employer's 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.
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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 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 Section 7 shall continue pursuant to the
terms and conditions of this Agreement.
6.4 As additional consideration for the covenants in
Section 7, in the event of a Change of Control Termination, Employee shall
receive the equivalent of his bi-weekly Salary at 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; provided that if Employee shall terminate his
employment on account of a reduction in his Salary or Benefits, as provided in
paragraph (b) of the definition of "Good Reason", then Employee shall be
entitled to receive hereunder the equivalent Salary he was making prior to such
reduction.
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.
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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 in
consideration of Employee's receipt of grants of options to purchase Employer
stock, pursuant to the Option Letter 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
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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 to obtain and will not
oppose action by Employer to disclose, an appropriate
protective order or other reliable assurance that confidential
treatment will be accorded the disclosure of such information.
(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.
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(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
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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
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and in writing, to receive and maintain all such information in secrecy, except
as may be limited by them in writing.
8. [INTENTIONALLY OMITTED.]
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 Section 7) 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, the Employer will have the right to cease
making any payments otherwise due to the Employee under this Agreement.
9.2 Covenants of Section 7 are Essential and Independent
Covenants
The covenants by the Employee in Section 7 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 Section 7 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.
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 Section
7.
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.
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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: Chief Executive Officer
Facsimile No.: 000-000-0000
If to the Employee: Xxxxx Xxxxxxxx
0000 Xxxxxxx Xxxxxx
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.
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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
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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 an employment letter and a Confidentiality and
Non-Disclosure Agreement dated August 31, 2001 (collectively, the "Prior
Employment Documents"), copies of which are attached hereto as Schedule 1. The
Employer and Employee agree that the provisions of this agreement amend and
supercede the Prior Employment Documents, which shall be of no further force and
effect.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date above first written above.
XXXXX X. XXXXXXXX
/s/ Xxxxx X. Xxxxxxxx
____________________________________________
GTx, INC.
By: /s/ Xxxxxxxx X. Xxxxxxx
________________________________________
Name: Xxxxxxxx X. Xxxxxxx
______________________________________
Title: CEO
_____________________________________
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