Exhibit 10.25 (b)
EXECUTIVE EMPLOYMENT AGREEMENT
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THIS AGREEMENT dated as of the 24th day of January 2005, to be effective as
of the 1st day of February 2005, by and between, AspenBio. Inc., a Colorado
corporation (the "Employer" or "Company") and Xxxxxxx X. Xxxxxxxx (the
"Executive"). In consideration of the mutual covenants contained in this
Agreement, the Employer agrees to employ the Executive and the Executive agrees
to be employed by the Employer upon the terms and conditions hereinafter set
forth.
ARTICLE 1
TERM OF EMPLOYMENT
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1.1 Initial Term. The initial term of employment hereunder shall commence
as of the effective day first written above ("Commencement Date") and shall
continue for a period of one year from that date, unless terminated earlier as
provided under Article 5.
1.2 Renewal; Non- Renewal Benefits to Executive. At the end of the initial
term of this Agreement, and on each anniversary thereafter, the term of
Executive's employment shall be automatically extended one additional year
unless, at least 90 days prior to such anniversary, the Executive shall have
delivered to the Employer written notice that the term of the Executive's
employment hereunder will not be extended. The Employer shall have the right to
provide such non-renewal notice to Executive, on the same terms and conditions.
ARTICLE 2
DUTIES OF THE EXECUTIVE
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2.1 Duties. The Executive shall be employed with the title of Chief
Executive Officer and President, with responsibilities and authorities as are
customarily performed by such officer including, but not limited to those duties
as may from time to time be assigned to Executive by the Board of Directors of
Employer. Executive's responsibilities and authorities for operating policies
and procedures are subject to the general direction and control of the Board of
Directors. Upon execution of this Agreement, the Company's Board of Directors
shall also agree to appoint executive to fill the vacancy on the Company's Board
of Directors.
2.2 Extent and Place of Duties. Executive shall devote his primary working
time, efforts, attention and energies to the business of the Employer. Executive
shall be required to perform his at least 50% of his duties at the companies
headquarters in Castle Rock, Colorado, or as may be agreed upon from time to
time by the parties. Employer agrees to provide temporary living accommodations
in Castle Rock, CO for a period of up to one year, should Executive determine to
not relocate his family to Castle Rock during that period.
ARTICLE 3
COMPENSATION OF THE EXECUTIVE
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3.1 Salary. As compensation for services rendered under this Agreement, the
Executive will receive a salary of $150,000 per year, which shall be his base
compensation. Executive's salary is payable in accordance with Employer's normal
business practices. The parties agree that the base compensation amount will be
reviewed for an increase considering the progress of the Company as well as the
Executive's execution of his job duties after six months (September 1, 2005). In
addition Employer and Executive shall agree within the initial sixty days of the
term of this Agreement on goals and parameters for a bonus program to provide
the Executive with additional performance incentives. The first year bonus
amount shall be up to 25% of the Executive's base salary, based upon the
achievement of the to be agreed upon goals and parameters.
3.2 Benefits. Executive shall be entitled to vacation and holidays as
customarily extended to executive employees. Executive shall be entitled to
participate in all of Employer's employee benefit plans and employee benefits,
including any retirement, pension, profit-sharing, stock option, insurance,
hospital or other plans and benefits which now may be in effect or which may
hereafter be adopted, it being understood that Executive shall have the same
rights and privileges to participate in such plans and benefits as any other
executive employee during the term of this Agreement. Participation in any
benefit plans shall be in addition to the compensation otherwise provided for in
this Agreement.
3.3 Expenses. Executive shall be entitled to prompt reimbursement for all
reasonable expenses incurred by Executive in the performance of his duties
hereunder.
3.4 Employee Stock Options. Upon execution of this agreement, Executive
shall be granted 500,000 options to purchase common stock of the Company at the
market price on the date of grant. Such options shall be under the Company's
Stock Option Plan, as amended and may consist of a combination of Incentive and
non-qualified options as are to be determined. Such options will be subject to
three-year pro-rata vesting in arrears.
ARTICLE 4
NON-COMPETITION; CONFIDENTIALITY
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4.1 During the term of this Agreement, the Executive will offer to the
Employer any investment or other opportunity generally in the business in which
the Company operates, of which he may become aware. If after 30 days the Board
of Directors of the Employer refuses the opportunity to participate in the
investment or venture, the Executive may do so as permitted by Section 4.2
hereof and otherwise only if Executive obtains consent to do so from a majority
of the directors.
4.2 The Executive may make passive investments in companies involved in
industries in which the Company operates, provided any such investment does not
exceed a 5% equity interest, unless Executive obtains a consent to acquire an
equity interest exceeding 5% by a vote of a majority of the directors. The
parties acknowledge that Executive has disclosed his 10% ownership position in
"CVS" and the Company consents to that pre-existing relationship.
4.3 Except as provided in Sections 4.1 and 4.2 hereof, the Executive may
not participate in any business or other areas of business in which the Company
is engaged during the term of this Agreement except through and on behalf of the
Company, without the consent from a majority of the directors. The parties
acknowledge that Executive has disclosed his relationship with "CVS" and "Heska"
and the Company consents to those pre-existing relationships, within the
transition plan as discussed by the parties.
4.4 During the term of this Agreement, the Executive shall not own, manage,
operate, control, be employed by, participate in, or be connected in any manner
with the ownership, management, operation or control of any business which is
engaged in the type of business conducted by the Employer at the time this
Agreement terminates. In the event of the Executive's actual or threatened
breach of this paragraph, the Employer shall be entitled to a preliminary
restraining order and injunction restraining the Executive from violating its
provisions. Nothing in this Agreement shall be construed to prohibit the
Employer from pursuing any other available remedies for such breach or
threatened breach, including the recovery of damages from the Executive.
4.5 a. The Executive recognizes and acknowledges that the information,
business, list of the Employer's customers and any other trade secret or
other secret or confidential information relating to Employer's business as
they may exist from time to time are valuable, special and unique assets of
Employer's business. Therefore, Executive agrees as follows:
(1) That Executive will hold in strictest confidence and not
disclose, reproduce, publish or use in any manner, whether during or subsequent
to this employment, without the express authorization of the Board of Directors
of the Employer, any information, business, customer lists, or any other secret
or confidential matter relating to any aspect of the Employer's business, except
as such disclosure or use may be required in connection with Executive's work
for the Employer.
(2) That upon request or at the time of leaving the employ of the
Employer the Executive will deliver to the Employer, and not keep or deliver to
anyone else, any and all notes, memoranda, documents and, in general, any and
all material relating to the Employer's business.
(3) That the Board of Directors of Employer may from time to time
reasonably designate other subject matters requiring confidentiality and secrecy
which shall be deemed to be covered by the terms of this Agreement.
b. In the event of a breach or threatened breach by the Executive of the
provisions of this paragraph 4.5, the Employer shall be entitled to an
injunction (i) restraining the Executive from disclosing, in whole or in part,
any information as described above or from rendering any services to any person,
firm, corporation, association or other entity to whom such information, in
whole or in part, has been disclosed or is threatened to be disclosed; and/or
(ii) requiring that Executive deliver to Employer all information, documents,
notes, memoranda and any and all other material as described above upon
Executive's leave of the employ of the Employer. Nothing herein shall be
construed as prohibiting the Employer from pursuing other remedies available to
the Employer for such breach or threatened breach, including the recovery of
damages from the Executive.
ARTICLE 5
TERMINATION OF EMPLOYMENT
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5.1 Termination. The Executive's employment hereunder may be terminated
without any breach of this Agreement only under the following circumstances:
1. By Executive. Upon the occurrence of any of the following events,
this Agreement may be terminated by the Executive by written notice to
Employer:
(1) if Employer makes a general assignment for the benefit of
creditors, files a voluntary bankruptcy petition, files a petition or answer
seeking a reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any law, or there shall have been filed any
petition or application for the involuntary bankruptcy of Employer, or other
similar proceeding, in which an order for relief is entered or which remains
undismissed for a period of thirty days or more, or Employer seeks, consents to,
or acquiesces in the appointment of a trustee, receiver, or liquidator of
Employer or any material part of its assets;
(2) the sale by Employer of substantially all of its assets;
(3) a decision by Employer to terminate its business and
liquidate its assets.
If Employee terminates this Agreement for the reasons stated in Section
5.1.1 (2), the Executive will be paid a severance amount equal to one times his
base annual salary. This severance amount is in addition to any salary due and
payable through the Date of Termination.
2. Death. This Agreement shall terminate upon the death of Executive.
3. Disability. The Employer may terminate this Agreement upon the permanent
disability of the Executive. Executive shall be considered disabled (whether
permanent or temporary) if: (i) he is disabled as defined in a disability
insurance policy purchased by or for the benefit of the Executive; or (ii) if no
such policy is in effect, he is incapacitated to such an extent that he is
unable to perform substantially all of his duties for Employer that he performed
prior to such incapacitation.
4. Cause. The Employer may terminate the Executive's employment hereunder
for Cause. For purposes of this Agreement, the Employer shall have "Cause" to
terminate the Executive's employment hereunder upon the following: (i) the
continued failure by the Executive substantially to perform his duties hereunder
(other than any such failure resulting from the Executive's incapacity due to
physical or mental illness), after demand for substantial performance is
delivered by the Employer and Executive fails to substantially perform in the 30
days following receipt of Employer's demand; or (ii) misconduct by the Executive
which is materially injurious to the Employer, monetarily or otherwise; or (iii)
the willful violation by the Executive of the provisions of this Agreement. For
purposes of this Section, no act, or failure to act, on the part of the
Executive shall be considered "willful" unless done, or omitted to be done, not
in good faith and without reasonable belief by him that his action or omission
was in the best interest of the Employer.
5. Other Termination. The Employer may terminate the Executive's employment
hereunder for any reason other than death, disability or cause.
5.2 Notice of Termination. Any termination of the Executive's employment by
the Employer or by the Executive (other than termination pursuant to subsection
5.1.2 above) shall be communicated by written Notice of Termination to the other
party.
5.3 Date of Termination. "Date of Termination" shall mean (i) if the
Executive's employment is terminated by his death, the date of his death; (ii)
if the Executive's employment is terminated for Cause or Other Termination event
("Other Termination Event"), the date on which a Notice of Termination is
received by the Executive; and (iii) if the Executive's employment is terminated
for any other reason stated above, the date specified in a Notice of Termination
by Employer or Executive, which date shall be no less than 30 days following the
date on which Notice of Termination is given.
5.4 Compensation Upon Termination.
1. Following the termination of this Agreement pursuant to Sections 5.1.1
or 5.1.2, the Executive shall be entitled to compensation only through the Date
of Termination; provided, however, that Executive may be entitled to severance
as set forth in Section 5.1.1.
2. Following the termination of this Agreement pursuant to Section 5.1.2,
Employer shall pay to Executive's estate the compensation which would otherwise
be payable to Executive to the end of the month in which his death occurs. This
payment shall be in addition to life insurance benefits, if any, paid to
Executive's estate under policies for which the Employer pays all premiums and
Executive's estate is the beneficiary.
3. In the event of permanent disability of the Executive as described in
Section 5.1.3, if Employer elects to terminate this Agreement, Executive shall
be entitled to receive compensation and benefits through the Date of
Termination; any such payment, however, shall be reduced by disability insurance
benefits, if any, paid to Executive under policies (other than group policies)
for which Employer pays all premiums and Executive is the beneficiary.
4. If Executive is terminated by Employer for any reason other than Cause
as set forth in this Article 5, then Executive is entitled to a severance
payment equal to the equivalent of 135 days base salary following the date of
Termination, under this Agreement.
5.5 Remedies. Any termination of this Agreement shall not prejudice any
other remedy to which the Employer or Executive may be entitled, either at law,
equity, or under this Agreement.
ARTICLE 6
INDEMNIFICATION
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To the fullest extent permitted by applicable law, Employer agrees to
indemnify, defend and hold Executive harmless from any and all claims, actions,
costs, expenses, damages and liabilities, including, without limitation,
reasonable attorneys' fees, hereafter or heretofore arising out of or in
connection with activities of Employer or its employees, including Executive, or
other agents in connection with and within the scope of this Agreement or by
reason of the fact that he is or was a director or officer of Employer or any
affiliate of Employer. To the fullest extent permitted by applicable law,
Employer shall advance to Executive expenses of defending any such action, claim
or proceeding. However, Employer shall not indemnify Executive or defend
Executive against, or hold him harmless from any claims, damages, expenses or
liabilities, including attorneys' fees, resulting from the gross negligence or
willful misconduct of Executive. The duty to indemnify shall survive the
expiration or early termination of this Agreement as to any claims based on
facts or conditions which occurred or are alleged to have occurred prior to
expiration or termination.
ARTICLE 7
GENERAL PROVISIONS
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7.1 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado.
7.2 Arbitration. Any controversy or claim arising out of or relating to
this Agreement or the breach thereof shall be settled by arbitration in the City
and County of Denver, Colorado in accordance with the rules then existing of the
American Arbitration Association and judgment upon the award may be entered in
any court having jurisdiction thereof.
7.3 Entire Agreement. This Agreement supersedes any and all other
Agreements, whether oral or in writing, between the parties with respect to the
employment of the Executive by the Employer. Each party to this Agreement
acknowledges that no representations, inducements, promises, or agreements,
orally or otherwise, have been made by either party, or anyone acting on behalf
of any party, that are not embodied in this Agreement, and that no agreement,
statement, or promise not contained in this Agreement shall be valid or binding.
7.4 Successors and Assigns. This Agreement, all terms and conditions
hereunder, and all remedies arising herefrom, shall inure to the benefit of and
be binding upon Employer, any successor in interest to all or substantially all
of the business and/or assets of Employer, and the heirs, administrators,
successors and assigns of Executive. Except as provided in the preceding
sentence, the rights and obligations of the parties hereto may not be assigned
or transferred by either party without the prior written consent of the other
party.
7.5 Notices. For purposes of this Agreement, notices, demands and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed as
follows:
Executive:
Xxxxxxx X. Xxxxxxxx
0000 Xxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 8526
Employer:
AspenBio, Inc.
Attn: Chairman
0000 Xxxxx Xxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
With a copy to:
Xxxxxxx Xxxxxxxxx
Xxxxx, Figa & Will, P.C.
0000 Xxxxx Xxxxxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
7.6 Severability. If any provision of this Agreement is prohibited by or is
unlawful or unenforceable under any applicable law of any jurisdiction as to
such jurisdiction, such provision shall be ineffective to the extent of such
prohibition without invalidating the remaining provisions hereof. 7.7 Section
Headings. The section headings used in this Agreement are for convenience only
and shall not affect the construction of any terms of this Agreement.
7.8 Survival of Obligations. Termination of this Agreement for any reason
shall not relieve Employer or Executive of any obligation accruing or arising
prior to such termination.
7.9 Amendments. This Agreement may be amended only by written agreement of
both Employer and Executive.
7.10 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original but all of which, when
taken together, shall constitute only one legal instrument. This Agreement shall
become effective when copies hereof, when taken together, shall bear the
signatures of both parties hereto. It shall not be necessary in making proof of
this Agreement to produce or account for more than one such counterpart.
7.11 Fees and Costs. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys fees, costs and necessary disbursements in
addition to any other relief to which that party may be entitled.
IN WITNESS WHEREOF, Employer and Employee enter into this Executive
Employment Agreement effective as of the date first set forth above.
AspenBio, Inc. - "EMPLOYER"
By ___________________________
Name _________________________
Title ________________________
Xxxxxxx X. Xxxxxxxx - "EXECUTIVE"
Signed _________________________________
Xxxxxxx X. Xxxxxxxx, Individually
