EMPLOYMENT AGREEMENT
AGREEMENT
dated as of July 1, 2007, between AVANTOGEN ONCOLOGY, INC., a Nevada corporation
(“Company”),
and
XXXXXXX XXXXXXXXX, an individual (“Executive”).
Executive
currently serves as a member of the board of directors (the “Board”)
of
Company. Executive’s only compensation for such service is as provided in the
plan adopted by the board at its meeting held on April 27, 2007, with respect
to
directors’ fees (the “Plan”).
Company
now desires to employ Executive, on an interim and part-time basis, as
secretary, treasurer and chief financial officer of Company (collectively,
“CFO”),
and
Executive is amenable to being so employed, in each case, on the terms and
subject to the conditions set forth in this Agreement.
Accordingly,
each party hereto hereby agrees as follows:
1. TERM
OF
AGREEMENT
The
term
of this Agreement will commence on the date first set forth above, or as soon
thereafter as Executive commences services hereunder (Executive’s “start
date”),
and
will continue from month to month thereafter until the date on which it is
terminated pursuant to Section 5 hereof.
2. EMPLOYMENT
2.1 Position
and Duties. Executive
will serve as Company’s CFO, reporting to Company’s Chief Executive Officer, and
will have the general powers, duties and responsibilities of management usually
vested in that office in a corporation and such additional powers and duties
as
may be prescribed from time to time by the Board, which may include services
for
one or more subsidiaries or affiliates of Company.
2.2 Commitment.
Executive will during the period of his employment hereunder discharge his
duties to the Company to the best of his abilities in a diligent, trustworthy,
professional and efficient manner and will devote, on a part-time basis,
business hours (approximating 30 hours per month), attention and skills to
the
business and affairs of the Company as are required to discharge such duties.
Company acknowledges that Executive may conduct other business for other
businesses, provided such activities do not interfere with Executive’s duties
to, and such businesses do not compete with, Company.
3. COMPENSATION
3.1 Compensation.
During
the term of this Agreement, Company will pay the amounts and provide the
benefits described in this Section 3, and Executive agrees to accept such
amounts and benefits in full payment for Executive’s services under this
Agreement.
3.2 Base
Salary. Company
will pay to Executive a base salary of $2,000 per month, payable, in arrears,
on
or about the last business day of each month, less applicable withholding.
Nothing contained herein, including payment of such compensation, will
compromise Executive’s status as a “non-executive director” for the purpose of
receiving directors’ fees under the Plan.
3.3 Fringe
Benefits.
(a) Company
will provide to Executive, at Company’s cost, all perquisites to which other
senior executives of Company are generally entitled and such other perquisites
which are suitable to the character of the Executive’s position with Company and
adequate for the performance of his duties hereunder (taking into account
Company’s means).
(b) Upon
satisfaction of applicable eligibility requirements, Executive will be provided
with such fringe benefits as Company may offer generally from time to time
to
its senior executives. Executive acknowledges, however, with reference to the
foregoing, that no such benefit plans currently exist and that Company has
no
intention currently of implementing them To the extent legally permissible,
Company will not treat amounts paid in respect of such benefits as income to
Executive.
3.4 Paid
Time Off. Executive
will accrue, on a daily basis (taking into account his part-time status), a
total of three workweeks of paid time off (“PTO”) per
year following the start date of this Agreement. This PTO will be in addition
to
normal Company holidays, which will be determined at the discretion of Company
from time to time. Any accrued but unused PTO (up to such limits as Company
may
establish) will be paid to Executive, on a pro rata basis, at the time that
his
employment is terminated.
3.5 Deductions
from Compensation. Company
will deduct and withhold from all compensation payable to Executive all amounts
required to be deducted or withheld pursuant to any present or future law,
ordinance, regulation, order, writ, judgment, or decree requiring such deduction
and withholding.
4 REIMBURSEMENT
OF CERTAIN EXPENSES
4.1 Travel
and Other Expenses. Company
will pay to or reimburse Executive for reasonable and necessary business, travel
and similar expenditures incurred by Executive for which Executive submits
appropriate receipts and reports the amount, date, location and business
character in a timely manner.
4.2 Liability
Insurance. Company
will continue Executive under the coverage of Company’s officers and directors’
insurance and other liability insurance policies, consistent with usual and
reasonable business practices, to cover Executive against insurable events
related to his employment with Company.
4.3 Indemnification.
Promptly
upon written request from Executive, Company will indemnify, defend (with
counsel of its choice) and hold harmless Executive, to the fullest extent under
applicable law, for all defense costs, judgments, fines, settlements, losses,
costs or expenses (including attorney’s fees), arising out of Executive’s
activities as an agent, employee, officer or director of Company, or in any
other capacity on behalf of or at the request of Company. Notwithstanding the
foregoing, Company may not enter into any settlement, of any kind, of any claim,
which requires Executive to admit liability or responsibility or to have any
order or judgment entered against Executive without Executive’s consent, which
will not unreasonably be withheld or delayed.
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5 TERMINATION
5.1 Termination
and Resignation. Company
may terminate Executive’s employment at any time, with or without notice or
cause. If Company terminates Executive’s employment for cause, or if Executive
resigns voluntarily, Company will pay Executive his salary prorated through
the
date of termination, at the rate in effect at the time notice of termination
is
given, together with any benefits accrued through the date of termination.
If
Company terminates Executive’s employment without cause, Company will pay
Executive his salary prorated through the date that follows by 30 days the
date
of termination, at the rate in effect at the time notice of termination is
given, together with any benefits accrued through the date of termination.
Company will have no further obligations to Executive under this
Agreement.
5.2 Death
or Disability. To
the
extent consistent with applicable law, Executive’s employment will terminate on
his death or disability. In the event of termination due to death or disability,
Company will pay Executive (or his legal representative) his salary prorated
through the date that follows by 30 days the date of termination, at the rate
in
effect at the time of termination. Company will have no further obligations
to
Executive (or his legal representative) under this Agreement, except for any
vested rights under employee benefit plans and programs and the right to receive
reimbursement for business expenses.
5.3 Return
of Company Property. Within
ten days after the effective date of termination of Executive’s employment
with Company, Executive will return to Company all products, books, records,
forms, specifications, formulae, data processes, designs, papers and writings
relating to the business of Company, including, but not limited to, proprietary
or licensed computer programs, customer lists and customer data, and copies
or
duplicates thereof in Executive’s possession or under Executive’s control.
Executive will not retain any copies or duplicates of such property and all
licenses granted to him by Company to use computer programs or software will
be
revoked on the termination date.
6 CONFIDENTIAL
INFORMATION
6.1 Trade
Secrets of Company. Executive,
during the term of this Agreement, will develop, have access to and become
acquainted with various trade secrets which are owned by Company and which
are
regularly used in the operation of its business. Executive will not disclose
such trade secrets, directly or indirectly, or use them in any way, either
during the term of this Agreement or at any time thereafter, except as required
in the course of his employment by Company. All files, contracts, manuals,
reports, letters, forms, documents, notes, notebooks, lists, records, documents,
customer lists, vendor lists, purchase information, designs, computer programs
and similar items and information relating to the businesses of such entities,
whether prepared by Executive or otherwise and whether now existing or prepared
at a future time, coming into his possession will remain the exclusive property
Company.
6.2 Confidential
Data of Customers of Company. Executive,
in the course of his duties, will have access to and become acquainted with
financial, accounting, statistical and personal data of customers of Company
and
of its and their affiliates. All such data is confidential and will not be
disclosed, directly or indirectly, or used by Executive in any way, either
during the term of this Agreement (except as required in the course of
Executive’s employment by Company) or at any time thereafter.
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6.3 Injunctive
Relief. Executive
acknowledges that the services to be rendered under this Agreement and the
items
described in this Section 6 are of a special, unique and extraordinary
character, that it would be difficult or impossible to replace such services
or
to compensate Company in money damages for a breach of this Agreement.
Accordingly, Executive agrees and consents that if he violates any of the
provisions of this Agreement, Company, in addition to any other rights and
remedies available under this Agreement or otherwise, will be entitled to
temporary and permanent injunctive relief.
6.4 Continuing
Effect. The
provisions of this Section 6 will remain in effect after the effective date
of termination of Executive’s employment with Company.
7 OTHER
PROVISIONS
7.1 Cure
Period. In
the
event that Executive or Company breaches this Agreement, the breaching party
will have five business days within which to cure such breach, after
receiving written notice from the other party specifying in reasonable detail
the basis for the claimed breach. No breach of the Agreement will be actionable
if the breaching party is able to cure the breach within the aforementioned
cure
period.
7.2 Compliance
with Other Agreements. Executive
represents and warrants to Company that, to his knowledge and belief, the
execution, delivery and performance of this Agreement will not conflict with
or
result in the violation or breach of any term or provision of any order,
judgment, injunction, contract, agreement, commitment or other arrangement
to
which Executive is a party or by which he is bound.
7.3 Counsel.
The
parties acknowledge and represent that, prior to the execution of this
Agreement, they have had an opportunity to consult with their respective counsel
concerning the terms and conditions set forth herein. Additionally, Executive
represents that he has had an opportunity to receive independent legal advice
concerning the taxability of any consideration received under this Agreement.
Executive has not relied upon any advice from Company or its attorneys with
respect to this Agreement or the taxability of any consideration received under
this Agreement.
7.4 Non-delegable
Duties. This
Agreement is a contract for Executive’s personal services. The duties of
Executive under this Agreement are personal and may not be delegated or
transferred in any manner whatsoever, and will not be subject to involuntary
alienation, assignment or transfer by Executive during his life.
7.5 Governing
Law. The
validity, construction and performance of this Agreement will be governed by
the
internal laws of the State of California. The federal and state courts located
in Los Angeles, California, will have exclusive jurisdiction over any action
to
compel performance in accordance with this Agreement or to enforce any award
in
any arbitration.
7.6 Severability.
The
invalidity or unenforceability of any particular provision of this Agreement
will not affect the other provisions, and this Agreement will be construed
in
all respects as if any invalid or unenforceable provision were
omitted.
7.7 Binding
Effect. The
provisions of this Agreement will bind and inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
7.8 Notice.
Any
notices or communications required or permitted by this Agreement will be deemed
sufficiently given if in writing and when delivered personally or two business
days after deposit with the United States Postal Service as registered or
certified mail, postage prepaid and addressed as follows:
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(a) if
to
Company, to the principal office of Company in the State of California, marked
“Attention: Board of Directors”; or
(b) if
to
Executive, to the most recent address for Executive appearing in Company’s
records.
7.9 Dispute
Resolution. Any
disputes, controversies or claims arising out of or relating to this Agreement
will be resolved by mediation or, failing which, binding arbitration before
a
retired judge at JAMS in Santa Monica, California, in accordance with JAMS’s
rules and procedures and the Dispute Resolution Agreement.
7.10 Attorneys’
Fees. The
prevailing party in any suit or other proceeding brought to enforce, interpret
or apply any provisions of this Agreement will be entitled to recover all costs
and expenses of the proceeding and investigation (not limited to court costs),
including attorneys’ fees.
7.11 Headings.
The
headings contained in this Agreement are for reference purposes only and will
not affect in any way the meaning or interpretation of this
Agreement.
7.12 Amendment
and Waiver. This
Agreement may be amended, modified or supplemented only by a writing executed
by
each of the parties hereto. Either party may in writing waive any provision
of
this Agreement to the extent such provision is for the benefit of the waiving
party. No waiver by either party of a breach of any provision of this Agreement
will be construed as a waiver of any subsequent or different breach, and no
forbearance by a party to seek a remedy for noncompliance or breach by the
other
party will be construed as a waiver of any right or remedy with respect to
such
noncompliance or breach.
7.13 Entire
Agreement. This
Agreement and the Plan are the only agreements and understandings between the
parties hereto pertaining to the subject matter hereof, and supersede all prior
agreements, summaries of agreements, descriptions of compensation packages,
discussions, negotiations, understandings, representations or warranties,
whether verbal or written, between the parties pertaining to such subject
matter.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first above written.
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Xxxxxxx
Xxxxxxxxx
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Xxx
Xxxx
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Director
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Xxxxxxx
Xxxxxx
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Director
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