EMPLOYMENT AGREEMENT
EXHIBIT
10.12
THIS
EMPLOYMENT AGREEMENT (“Agreement”) is by and between Peregrine Pharmaceuticals,
Inc., a Delaware corporation (“Employer” or the “Company”) and Xxxxxx X. Xxxx
(“Executive”).
In
consideration of the promises and mutual covenants contained herein, and for
other good and valuable consideration, receipt of which is hereby acknowledged,
the parties hereto do hereby agree as follows:
1. Employment. Upon
the terms and conditions hereinafter set forth, Employer hereby employs
Executive to serve as the President and Chief Executive Officer of the Company
(“CEO”), and Executive hereby accepts such employment under the terms and
conditions set forth herein.
2. Effective
Date. The effective date of the Agreement shall be March 18,
2009 (the “Effective Date”). The employment relationship pursuant to
this Agreement shall be for an initial two year period commencing
on the Effective Date set forth above (“Initial Term”), unless sooner terminated
in accordance with Section 7 below. This Agreement will automatically
renew for one (1) year periods (“Subsequent Term”), unless either party
gives to the other written notice at least ninety (90) days prior to the
commencement of the next year’s period, of such party’s intent not to renew this
Agreement.
3. Duties. Executive
shall perform such duties as are customarily performed by a President and Chief
Executive Officer, and such other duties and responsibilities that may be
assigned to him by the Board of Directors. Specifically, Executive
shall manage the Company’s operations, and perform such duties and
responsibilities as set forth in the CEO’s job description.
Executive
shall report to the Board of Directors and have such authority as is delegated
by the Board of Directors. Executive shall be governed by the
policies and practices established by the Company. Employer requires
that: (i) Executive will devote his utmost knowledge and best
skill to the performance of his duties; (ii) Executive shall devote his
full business time (not less than 40 hours per week) to the rendition of such
services, subject to absences for customary vacations and for temporary illness;
and (iii) Executive will not engage in any other gainful occupation which
requires his personal attention and/or creates a conflict of interest with his
job responsibilities under this Agreement without the prior written consent of
the Board of Directors of the Company, with the exception that Executive may
personally trade in stock, bonds, securities, commodities or real estate
investments for his own benefit to the extent permitted by the provisions herein
and applicable law.
Executive’s
job performance will be reviewed annually. Executive acknowledges and
understands that performance reviews do not necessitate or correlate with salary
increases and that a favorable performance review neither guarantees continued
employment nor increased compensation.
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4. At-Will
Employment. Executive and Employer agree that Executive’s
employment may be terminated by Executive or by Employer, with or without cause
in accordance with paragraph 7 of this Agreement. Executive and
Employer expressly agree that this provision is intended by Executive and
Employer to be the complete and final expression of their understanding
regarding the terms and conditions under which Executive’s employment may be
terminated. Executive and Employer further understand and agree that
no representation contrary to this provision is valid, and that this provision
may not be augmented, contradicted or modified in any way, except in writing
signed by Executive and Chairperson of the Compensation Committee.
5. Compensation.
5.1 Base
Salary. Effective May 7, 2006, Executive shall be paid an
annual base salary of Three Hundred Fifty-Three Thousand Seven Hundred Fifty
Dollars ($353,750), payable according to Employer's payroll schedule and subject
to applicable state and federal withholdings and other payroll
deductions. Such annual base salary shall be automatically increased
by 5% on each of the following anniversary dates: May 1, 2007 and May
1, 2008. The payment of such annual increase and retroactive pay
shall not be paid and shall be deferred until the sooner of (i) a change in
control event, (ii) upon termination of employment (iii) or upon the approval of
such payment by the Compensation Committee of the Board.
5.2 Bonus. In
addition to Executive’s base salary, Executive may be eligible to receive an
additional discretionary bonus of up to one hundred percent (100%) of his then
in effect base salary, as determined by the Board of Directors in their sole
discretion (“Target Bonus”). Executive acknowledges that although a
discretionary bonus may be provided by the Company, any such bonus is neither
required nor guaranteed by this Agreement.
5.3 Stock
Options. Executive may also be eligible to receive stock
options as determined by the Board of Directors in their sole
discretion. Any such stock option will be granted pursuant to, and
will be subject to the terms of the Company’s Stock Option
Plans.
6. Fringe
Benefits.
6.1 Benefits. Executive
shall, in accordance with Company policy and the terms of the applicable plan
documents, be eligible to participate in benefits under any Company benefit plan
or arrangement which may be in effect from time to time and made available to
its executive management employees.
6.2 Paid-Time-Off
(PTO). Executive shall earn and accrue paid-time-off covering
vacation and sick time benefits at the rate of twenty (20) days per year for
employment periods of up to five years of service. The PTO accrual
rate shall automatically increase by five (5) additional days for each
additional 5 years of service up to maximum of thirty (30) days per year after
10 years of service. For example, after five years of service, the
annual PTO accrual rate shall increase to twenty-five (25)
days. Unused PTO shall carry over to the next year, but Executive
shall cease accruing further PTO at any time Executive has accrued two times his
annual accrual rate. Unused PTO days which are not in excess of
two-times the annual accrual rate shall be paid in a cash lump sum payment
promptly after Executive’s termination of employment.
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6.3 Expenses. Employer
shall reimburse Executive on the 1st and
15th
of each month for receipts Executive submits for all reasonable and necessary
travel and other business expenses incurred by Executive in the performance of
Executive’s duties hereunder, consistent with Employer’s normal expense
reimbursement policy.
7. Termination.
7.1 Termination With
Cause. If Executive (a) breaches in any material respect
or fails to fulfill in any material respect fiduciary duty owed to Employer;
(b) breaches in any material respect this Agreement or any other
confidentiality or non-solicitation, non-competition agreement between Employer
and Executive; (c) pleads guilty to or is convicted of a felony;
(d) is found to have engaged in any reckless, fraudulent, dishonest or
grossly negligent misconduct, (e) fails to perform his duties to the
Company, provided that Executive fails to cure any such failure within thirty
(30) days after written notice from Employer of such failure, provided further,
however, that such right to cure shall not apply to any repetition of the same
failure previously cured hereunder; or (f) violates any material rule,
regulation or policy of the Company that may be established and made known to
Employer's employees from time to time, including without limitation, the
Company Employee Handbook, a copy of which has been provided to Executive,
Employer may terminate immediately his employment and Executive shall have no
right to receive any compensation or benefit hereunder after such termination
other than base salary and PTO earned or accrued but unpaid as of the date of
termination (collectively “Standard Entitlements”). Notwithstanding
the foregoing, Executive shall not be terminated for Cause pursuant to
Subsection 7.1, unless and until Executive has received written notice of the
proposed termination for Cause, including details of the bases for such
termination, and Executive has had an opportunity to be heard before at least a
majority of the Board. Executive shall be deemed to have had such an opportunity
if written notice is given to him at least ten (10) days in advance of a
meeting and Executive has the actual opportunity to be heard, at that meeting,
by no less than a majority of the Board on the issues of his proposed
termination. Executive shall not be entitled to any bonus, or proration thereof,
if terminated under this paragraph.
7.2 Termination Without
Cause. As stated in Section 4 of this Agreement,
Executive or the Company may at any time terminate Executive’s employment with
or without cause. If the Company terminates Executive’s employment
within the Initial or Subsequent Terms and such termination is not a Termination
With Cause as defined above, the Company shall continue to pay Executive’s base
salary then in effect as of the date of such termination on a pro-rated basis
according to Employer’s payroll schedule and subject to applicable withholdings
for a period of twelve months or the remainder of the two-year time period from
the Effective Date, whichever time period is greater (collectively “Severance”),
provided only if Executive signs a general release. Such Severance
shall include the payment (“grossed-up” for all employee taxes at the state and
federal bonus rates) by Company of group insurance benefits for Executive and
family, including health and dental insurance during the Severance period and
the payment of the proration of any Target Bonus. In addition,
Executive shall have up to two years from the date of Termination to exercise
any vested and outstanding stock options, not to exceed the original expiration
date of the option agreement.
In order
to be entitled to the Severance reflected herein, Executive must sign a general
release of all claims known and unknown, against Employer, its officers and
directors, agents and employees and any related entities or
persons. Nothing herein will be construed to limit or modify the duty
of Executive to mitigate Executive’s damages in the event Employer terminates
Executive’s employment without Cause.
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7.3 Termination Upon Death or
Disability. Executive’s employment shall terminate upon his
death or disability ("disability" being defined as any mental or physical
condition which, in the reasonable opinion of a mutually agreed upon licensed
physician and/or psychiatrist (as the case may be), renders Executive unable or
incompetent to carry out Executive's duties under this Agreement, with or
without reasonable accommodation, for a period of at least six
months). In the event of a termination of Executive’s employment for
death or disability, Executive shall have no right to receive any further
compensation or benefit hereunder after such termination other than the payment
by Company of group insurance benefits previously provided to Executive for a
period of twelve months, and base salary and PTO earned or accrued but unpaid as
of the date of termination.
7.4 Change of
Control. In the event of any merger, acquisition or
consolidation of the Company where the Company is not the surviving or resulting
corporation, or upon transfer of all or substantially all of the assets of the
Company, and whereby Executive is terminated within three (3) months prior or
thirty-six (36) months after the aforementioned events in this paragraph 7.4, or
if Executive’s position is not in a substantially similar position or position
satisfactory to Executive, at Executive’s sole discretion, or if Executive’s
then current Base Salary and related benefits are reduced or negatively impacted
in any material respect, or if Company relocates Executive’s principal place of
work to a location more than fifty (50) miles from the original location,
without Executive’s prior written approval (“Change of Control”), then if
Executive, within twelve (12) months after an event constituting a Change
of Control, elects to resign his employment with the Corporation, Executive
shall be paid a lump sum amount equivalent to thirty-six months of Executive’s
base salary then in effect plus 100% of his Target Bonus upon the execution of a
general release, which amount is due and payable within ten (10) business days
of Executive notice under this section 7.4. Such lump sum payment
shall be considered to be in full and complete satisfaction of any and all
rights which Executive may enjoy under the terms of this Agreement, except that
any and all of Executive’s unvested stock options shall become fully vested and
exercisable and the exercise period shall be extended for two (2) additional
years from the date of the Change of Control, not to exceed to the original
expiration date of the option grant. In addition, Severance shall
include the payment (“grossed-up” for employee taxes at the state and federal
bonus rates) by Company of group insurance benefits for Executive and family,
including health and dental insurance during the entire thirty-six month
Severance period.
7.5 Voluntary Resignation or
Resignation For Good Reason. Other than pursuant to the
circumstances of a Change of Control, as defined in Section 7.4, in which
case Section 7.4 shall apply, Executive may voluntarily resign Executive’s
position with Company, at any time, on thirty (30) days advance written notice
to Company and Company shall pay Executive his Base Salary during the minimum 30
day notice period plus any accrued and unpaid benefits as of the termination
date. In the event Executive provides ninety (90) days advance
written notice (“Extended Notice Period”) to Company, Company shall pay
Executive his Base Salary then in effect and shall continue to provide other
contractual benefits including group insurance benefits during the Extended
Notice Period and for a period of nine (9) months after the Extended Notice
Period provided Executive makes himself telephonically available to the Board of
Director and the executive team for up to 2 hours per week. If,
within ninety (90) days of the initial existence of the condition(s) that
constitute Good Reason, Executive:(a) provides written notice to the Board of
his intention to resign his employment for Good Reason; (b) provides
written notice to the Board of the grounds that Executive believes he has to
resign for Good Reason and within thirty (30) days of receipt of such
written notice, the Board has not cured by eliminating the condition(s) that
constitute Good Reason; and (c) Executive actually terminates his
employment within 12 months following the initial existence of the Good Reason
condition, then Executive shall be entitled to receive the Standard Entitlements
to the date of resignation plus the Severance described in paragraph 7.2
above, provided Executive complies with the conditions in paragraph 7.2
above. All other Company obligations to Executive pursuant to this
Agreement will become automatically terminated and completely
extinguished. Executive will be deemed to have resigned with “Good
Reason” in the following circumstances: (a) Company relocates
Executive’s principal place of work to a location more than fifty (50) miles
from the original location, without Executive’s prior written approval;
(b) Executive’s position and/or duties are modified so that Executive’s
duties are no longer consistent with the position of Chief Executive Officer;
(c) Executive’s Base Salary and related benefits as set forth in paragraph 5.1,
as adjusted from time to time, are reduced without Executive’s written
authorization.
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8. Trade Secrets, Confidential
Information and Inventions.
8.1 Trade Secrets In
General. During the course of Executive's employment,
Executive will have access to various trade secrets, confidential information
and inventions of Employer as defined below.
(i) “Confidential
Information” means all information and material which is proprietary to the
Company, whether or not marked as “confidential” or “proprietary” and which is
disclosed to or obtained from the Company by the Executive, which relates to the
Company’s past, present or future research, development or business activities.
Confidential Information is all information or materials prepared by or for the
Company and includes, without limitation, all of the
following: designs, drawings, specifications, techniques, models,
data, source code, object code, documentation, diagrams, flow charts, research,
development, processes, systems, methods, machinery, procedures, “know-how”, new
product or new technology information, formulas, patents, patent applications,
product prototypes, product copies, cost of production, manufacturing,
developing or marketing techniques and materials, cost of production,
development or marketing time tables, customer lists, strategies related to
customers, suppliers or personnel, contract forms, pricing policies and
financial information, volumes of sales, and other information of similar
nature, whether or not reduced to writing or other tangible form, and any other
Trade Secrets, as defined by subparagraph (iii), or non-public business
information. Confidential Information does not include any information which
(1) was in the lawful and unrestricted possession of the Executive prior to
its disclosure by the Company, (2) is or becomes generally available to the
public by acts other than those of the Executive after receiving it, (3) becomes
generally available to the public by acts of the Executive necessary to
performing duties associated with their job description, or (4) has been
received lawfully and in good faith by the Executive from a third party who did
not derive it from the Company.
(ii) “Inventions”
means all discoveries, concepts and ideas, whether patentable or not, including
but not limited to, processes, methods, formulas, compositions, techniques,
articles and machines, as well as improvements thereof or “know-how” related
thereto, relating at the time of conception or reduction to practice to the
business engaged in by the Company, or any actual or anticipated research or
development by the Company.
(iii) “Trade
Secrets” shall mean any scientific or technical data, information, design,
process, procedure, formula or improvement that is commercially available to the
Company and is not generally known in the industry.
This
section includes not only information belonging to Employer which existed before
the date of this Agreement, but also information developed by Executive for
Employer or its employees during his employment and thereafter.
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8.2 Restriction on Use of
Confidential Information. Executive agrees that his use of
Trade Secrets and other Confidential Information is subject to the following
restrictions during the term of the Agreement and for an indefinite period
thereafter so long as the Trade Secrets and other Confidential Information have
not become generally known to the public.
8.2.1 Non-Disclosure. Except
as required by the performance of the Executive’s services to the Company under
the terms of this Agreement, neither the Executive nor any of his agents or
representatives, shall, directly or indirectly, publish or otherwise disclose,
or permit others to publish, divulge, disseminate, copy or otherwise disclose
the Company’s Trade Secrets, Confidential Information and/or Inventions as
defined above.
8.2.2 Use
Restriction. Executive shall use the Trade Secrets, other
Confidential Information and/or Inventions only for the limited purpose for
which they were disclosed. Executive shall not disclose the Trade
Secrets, other Confidential Information and/or Inventions to any third party
without first obtaining written consent from the Board of Directors and shall
disclose the Trade Secrets, other Confidential Information and/or Inventions
only to Employer's own employees having a need know. Executive shall
promptly notify the Board of Directors of any items of Trade Secrets prematurely
disclosed.
8.2.3 Surrender Upon
Termination. Upon termination of his employment with Employer
for any reason, Executive will surrender and return to Employer all documents
and materials in his possession or control which contain Trade Secrets,
Inventions and other Confidential Information. Executive shall
immediately return to the Company all lists, books, records, materials and
documents, together with all copies thereof, and all other Company property in
his possession or under his control, relating to or used in connection with the
past, present or anticipated business of the Company, or any affiliate or
subsidiary thereof. Executive acknowledges and agrees that all such
lists, books, records, materials and documents, are the sole and exclusive
property of the Company.
8.2.4 Prohibition Against Unfair
Competition. At any time after the termination of his
employment with Employer for any reason, Executive will not engage in
competition with Employer while making use of the Trade Secrets of
Employer.
8.2.5 Patents and
Inventions. The Executive agrees that any inventions made,
conceived or completed by him during the term of his service, solely or jointly
with others, which are made with the Company’s equipment, supplies, facilities
or Confidential Information, or which relate at the time of conception or
reduction to purpose of the invention to the business of the Company or the
Company’s actual or demonstrably anticipated research and development, or which
result from any work performed by the Executive for the Company, shall be the
sole and exclusive property of the Company. The Executive promises to assign
such inventions to the Company. The Executive also agrees that the Company shall
have the right to keep such inventions as trade secrets, if the Company chooses.
The Executive agrees to assign to the Company the Executive’s rights in any
other inventions where the Company is required to grant those rights to the
United States government or any agency thereof. In order to permit the Company
to claim rights to which it may be entitled, the Executive agrees to disclose to
the Company in confidence all inventions which the Executive makes arising out
of the Executive’s service and all patent applications filed by the Executive
within one year after the termination of his service.
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The
Executive shall assist the Company in obtaining patents on all inventions,
designs, improvements and discoveries patentable by the Company in the United
States and in all foreign countries, and shall execute all documents and do all
things necessary to obtain letters patent, to vest the Company with full and
extensive title thereto.
9. Solicitation of Employees or
Customers.
9.1 Information About Other
Employees. Executive will be called upon to work closely with
employees of Employer in performing services under this
Agreement. All information about such employees which becomes known
to Executive during the course of his employment with Employer, and which is not
otherwise known to the public, including compensation or commission structure,
is a Trade Secret of Employer and shall not be used by Executive in soliciting
employees of Employer at any time during or after termination of his employment
with Employer.
9.2 Solicitation of Employees
Prohibited. During Executive’s employment and for one year
following the termination of Executive’s employment, Executive shall not,
directly or indirectly ask, solicit or encourage any employee(s) of Employer to
leave their employment with Employer. Executive further agrees that
he shall make any subsequent employer aware of this non-solicitation
obligation.
9.3 Solicitation of Customers
Prohibited. For a period of one year following the termination
of Executive’s employment, Executive shall not, directly or indirectly solicit
the business of any of Employer's customers in any way competitive with the
business or demonstrably anticipated business of the
Company. Executive further agrees that he shall make any subsequent
employer aware of this non-solicitation obligation.
10. Non-Competition. During
the course of Executive’s employment with the Company, Executive shall not
directly or indirectly own any interest in (other than owning less than 5% of a
publicly held company), manage, control, participate in (whether as an officer,
director, employee, partner, agent, representative, volunteer or otherwise),
consult with, render services for or in any manner engage (whether or not during
business hours) anywhere in the Restricted Territories (as defined below) in any
business activity that is in any way competitive with the business or
demonstrably anticipated business of the Company. Further, Executive
will not during the course of his employment with the Company assist any other
person or organization in competing or in preparing to compete with any business
or demonstrably anticipated business of the Company anywhere in the Restricted
Territories.
"Restricted
Territories" shall mean any county in the State of California or any other state
or territory in the United States or any other similar political subdivision in
any state or foreign country in which the Company has done business or has
actually investigated doing business or where its products are sold or
distributed whether or not for compensation.
11. Unfair Competition,
Misappropriation of Trade Secrets and Violation of Solicitation/Noncompetition
Clauses. Executive acknowledges that unfair competition,
misappropriation of trade secrets or violation of any of the provisions
contained in paragraphs 8 through 10 would cause irreparable injury to
Employer, that the remedy at law for any violation or threatened violation
thereof would be inadequate, and that Employer shall be entitled to temporary
and permanent injunctive or other equitable relief without the necessity of
proving actual damages.
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12. Representation Concerning
Prior Agreements. Executive represents to Employer that he is
not bound by any non-competition and/or non-solicitation agreement that would
preclude, limit or in any manner affect his employment with
Employer. Executive further represents that he can fully perform the
duties of his employment without violating any obligations he may have to any
former employer, including but not limited to, misappropriating any proprietary
information acquired from a prior employer. Executive agrees that he
will indemnify and hold Employer harmless from any and all liability and damage,
including attorneys’ fees and costs, resulting from any breach of this
provision.
13. Personnel Policies and
Procedures. The Employer shall have the authority to establish
from time to time personnel policies and procedures to be followed by its
employees. Executive agrees to comply with the policies and
procedures of the Employer. To the extent any provisions in
Employer's personnel policies and procedures differ with the terms of this
Agreement, the terms of this Agreement shall apply.
14. Amendments. No
amendment or modification of the terms or conditions of this Agreement shall be
valid unless in writing and signed by the parties hereto.
15. Successors and
Assigns. The rights and obligations of the Employer under this
Agreement shall inure to the benefit of and shall be binding upon the successors
and assigns of Employer. Executive shall not be entitled to assign
any of his rights or obligations under this Agreement.
16. Governing
Law. This Agreement shall be interpreted, construed, governed
and enforced in accordance with the laws of the State of
California.
17. Severability. Each
term, condition, covenant or provision of this Agreement shall be viewed as
separate and distinct, and in the event that any such term, covenant or
provision shall be held by a court of competent jurisdiction to be invalid, the
remaining provisions shall continue in full force and effect.
18. Survival. The
provisions in paragraphs 8 through 11, 14 through 23, inclusive, of this
Agreement shall survive termination of Executive's employment, regardless of who
causes the termination and under what circumstances.
19. Waiver. Neither
party's failure to enforce any provision or provisions of this Agreement shall
be deemed or in any way construed as a waiver of any such provision or
provisions, nor prevent that party thereafter from enforcing each and every
provision of this Agreement. A waiver by either party of a breach of
provision or provisions of this Agreement shall not constitute a general waiver,
or prejudice the other party's right otherwise to demand strict compliance with
that provision or any other provisions in this Agreement.
20. Notices. Any
notice required or permitted to be given under this Agreement shall be
sufficient, if in writing, sent by mail to Executive's residence in the case of
Executive, or hand delivered to the Executive, and, in the case of Employer, to
the Board of Directors at the principal corporate office.
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21. Arbitration. The
parties agree that disputes concerning the terms of this Agreement and
Executive's employment under this Agreement are subject to arbitration in
accordance with the Employee Arbitration Agreement attached hereto as
Exhibit "A" and incorporated by this reference as though fully set forth
herein.
22. Entire
Agreement. Executive acknowledges receipt of this Agreement
and agrees that this Agreement represents the entire agreement with Employer
concerning the subject matter hereof, and supersedes any previous oral or
written communications, representations, understandings or agreements with
Employer or any officer or agent thereof through the date the Agreement is
executed by the parties, except the Employee Arbitration Agreement which is
incorporated herein as set forth in paragraph 21 of this Agreement and
attached hereto as Exhibit "A." Executive understands that no
representative of the Employer has been authorized to enter into any agreement
or commitment with Executive which is inconsistent in any way with the terms of
this Agreement.
23. Construction. This
Agreement shall not be construed against any party on the grounds that such
party drafted the Agreement or caused it to be drafted.
24. Counterparts. This
Agreement may be executed simultaneously in two or more counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument. Further, facsimiles of
signatures may be taken as the actual signatures, and each party agrees to
furnish the other with documents bearing the original signatures within ten days
of the facsimile transmission.
25. Acknowledgment. Executive
acknowledges that he has been advised by Employer to consult with independent
counsel of his own choice, at his expense, concerning this Agreement, that he
has had the opportunity to do so, and that he has taken advantage of that
opportunity to the extent that he desires. Executive further
acknowledges that he has read and understands this Agreement, is fully aware of
its legal effect, and has entered into it freely based on his own
judgment.
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IN
WITNESS HEREOF, the parties have executed this Agreement as of the date set
forth below.
| EXECUTIVE | ||
| Dated: March 18, 2009 | /s/ Xxxxxx X. Xxxx | |
| Xxxxxx X. Xxxx | ||
| PEREGRINE PHARMACEUTICALS, INC. | ||
| Dated: March 18, 2009 | By: /s/ Xxxx Xxxxx | |
| Name: Xxxx Xxxxx | ||
| Title: CFO |
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EXHIBIT A
EXECUTIVE
ARBITRATION AGREEMENT
THIS
ARBITRATION AGREEMENT (“Agreement”) is made by and between Peregrine
Pharmaceuticals, Inc. (“Employer”) and Xxxxxx X. Xxxx
(“Executive”).
The
purpose of this Agreement is to establish final and binding arbitration for all
disputes arising out of Executive’s relationship with Employer, including
without limitation Executive’s employment or the termination of Executive’s
employment. Executive and Employer desire to arbitrate their disputes
on the terms and conditions set forth below to gain the benefits of a speedy,
impartial dispute-resolution procedure. Executive and Employer agree
to the following:
1. Claims Covered by the
Agreement. Executive and Employer mutually consent to the
resolution by final and binding arbitration of all claims or controversies
(“claims”) that Employer may have against Executive or that Executive may have
against Employer or against its officers, directors, partners, employees,
agents, pension or benefit plans, administrators, or fiduciaries, or any
subsidiary or affiliated company or corporation (collectively referred to as
“Employer”), relating to, resulting from, or in any way arising out of
Executive’s relationship with Employer, Executive’s employment relationship with
Employer and/or the termination of Executive’s employment relationship with
Employer, to the extent permitted by law. The claims covered by this
Agreement include, but are not limited to, claims for wages or other
compensation due; claims for breach of any contract or covenant (express or
implied); tort claims; claims for unfair competition, misappropriation of trade
secrets, breach of fiduciary duty, usurpation of corporate opportunity or
similar claims; claims for discrimination and harassment (including, but not
limited to, race, sex, religion, national origin, age, marital status or medical
condition, disability, sexual orientation, or any other characteristic protected
by federal, state or local law); claims for benefits (except where an employee
benefit or pension plan specifies that its claims procedure shall culminate in
an arbitration procedure different from this one); and claims for violation of
any public policy, federal, state or other governmental law, statute, regulation
or ordinance.
2. Required Notice of Claims
and Statute of Limitations. Executive may initiate arbitration
by serving or mailing a written notice to the Board of
Directors. Employer may initiate arbitration by serving or mailing a
written notice to Executive at the last address recorded in Executive’s
personnel file. The written notice must specify the claims asserted
against the other party. Notice of any claim sought to be arbitrated
must be served within the limitations period established by applicable federal
or state law.
3. Arbitration
Procedures.
a. After
demand for arbitration has been made by serving written notice under the terms
of Section 2 of this Agreement, the party demanding arbitration shall file
a demand for arbitration with the American Arbitration Association (“AAA”) in
Orange County.
A-1
b. Except as
provided herein, all rules governing the arbitration shall be the then
applicable rules set forth by the AAA. If the dispute is
employment-related, the dispute shall be governed by the AAA’s then current
version of the national rules for the resolution of employment
disputes. The AAA’s then applicable rules governing the arbitration
may be obtained from the AAA’s website which currently is
xxx.xxx.xxx.
c. The
arbitrator shall apply the substantive law (and the law of remedies, if
applicable) of the state in which the claim arose, or federal law, or both, as
applicable to the claim(s) asserted. The arbitrator shall have
exclusive authority to resolve any dispute relating to the interpretation,
applicability, enforceability or formation of this Agreement, including but not
limited to any claim that all or any part of this Agreement is void or
voidable.
d. Either
party may file a motion for summary judgment with the arbitrator. The
arbitrator is entitled to resolve some or all of the asserted claims through
such a motion. The standards to be applied by the arbitrator in
ruling on a motion for summary judgment shall be the applicable laws as
specified in Section 4(c) of this Agreement.
e. Discovery
shall be allowed and conducted pursuant to the then applicable arbitration rules
of the AAA. The arbitrator is authorized to rule on discovery motions
brought under the applicable discovery rules.
4. Application for Emergency
Injunctive and/or Other Equitable Relief. Claims by Employer
or Executive for emergency injunctive and/or other equitable relief relating to
unfair competition and/or the use and/or unauthorized disclosure of trade
secrets or confidential information shall be subject to the then current version
of the AAA’s Optional Rules for Emergency Measures of Protection set forth
within the AAA’s Commercial Dispute Resolution Procedures. The AAA
shall appoint a single emergency arbitrator to handle the claim(s) for emergency
relief. The emergency arbitrator selected by the AAA shall be either
a retired judge or an individual experienced in handling matters involving
claims for emergency injunctive and/or other equitable relief relating to unfair
competition and the use or unauthorized disclosure of trade secrets and/or
confidential information.
5. Arbitration
Decision. The arbitrator’s decision will be final and
binding. The arbitrator shall issue a written arbitration decision
revealing the essential findings and conclusions upon which the decision and/or
award is based. A party’s right to appeal the decision is limited to
grounds provided under applicable federal or state law.
6. Place of
Arbitration. The arbitration will be at a mutually convenient
location that must be within 50 miles of Executive’s last company employment
location. If the parties cannot agree upon a location, then the
arbitration will be held at the AAA’s office nearest to Executive’s last
employment location.
7. Administrative
Agencies. Nothing in this Agreement is intended to prohibit
Employee from filing a claim or communicating with the United States Equal
Employment Opportunity Commission (“EEOC”), the National Labor Relations Board
(“NLRB”) or the California Department of Fair Employment and Housing
(“DFEH”).
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8. Construction. Should
any portion of this Agreement be found to be unenforceable, such portion will be
severed from this Agreement, and the remaining portions shall continue to be
enforceable.
9. Representation, Fees and
Costs. Each party may be represented by an attorney or other
representative selected by the party. Except as otherwise provided
for by statute, the arbitrator shall award reasonable attorneys’ fees and costs
(including without limitation, costs for depositions, experts, etc.) to
Executive provided Executive is the prevailing party except that Employer shall
be responsible for the arbitrator’s fees and costs, or any fees or costs charged
by the AAA, to the extent they exceed any fee or cost that Executive would be
required to bear if the action were brought in court. In no event
shall Executive be responsible for attorneys’ fees and costs of
Employer.
10. Waiver of Jury
Trial/Exclusive Remedy. EXECUTIVE AND EMPLOYER KNOWINGLY AND
VOLUNTARILY WAIVE ANY CONSTITUTIONAL RIGHT TO HAVE ANY DISPUTE BETWEEN THEM
DECIDED BY A COURT OF LAW AND/OR BY A JURY IN COURT.
11. Sole and Entire
Agreement. This Agreement expresses the entire Agreement of
the parties and shall supersede any and all other agreements, oral or written,
concerning arbitration. This Agreement is not, and shall not be
construed to create, any contract of employment, express or
implied.
12. Requirements for
Modification or Revocation. This Agreement to arbitrate shall
survive the termination of Executive’s employment. It can only be
revoked or modified by a writing signed by the Chairperson of the Compensation
Committee of the
Board of Directors of Employer and Executive that specifically states an intent
to revoke or modify this Agreement.
13. Voluntary
Agreement. EXECUTIVE ACKNOWLEDGES THAT EXECUTIVE HAS CAREFULLY
READ THIS AGREEMENT, UNDERSTANDS ITS TERMS, AND AGREES THAT ALL UNDERSTANDINGS
AND AGREEMENTS BETWEEN EMPLOYER AND EXECUTIVE RELATING TO THE SUBJECTS COVERED
IN THE AGREEMENT ARE CONTAINED IN IT. EXECUTIVE HAS KNOWINGLY AND
VOLUNTARILY ENTERED INTO THE AGREEMENT WITHOUT RELIANCE ON ANY PROVISIONS OR
REPRESENTATIONS BY EMPLOYER, OTHER THAN THOSE CONTAINED IN THIS
AGREEMENT.
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EXECUTIVE
FURTHER ACKNOWLEDGES THAT EXECUTIVE HAS BEEN GIVEN THE OPPORTUNITY TO DISCUSS
THIS AGREEMENT WITH EXECUTIVE’S PRIVATE LEGAL COUNSEL AND EXECUTIVE HAS UTILIZED
THAT OPPORTUNITY TO THE EXTENT DESIRED.
| EXECUTIVE: | EMPLOYER: | ||
| PEREGRINE PHARMACEUTICALS, INC., a Delaware corporation | |||
| /s/ Xxxxxx X. Xxxx | |||
|
Xxxxxx
X. Xxxx
|
|||
| By: | ____________________________________ | ||
| Name: | ____________________________________ | ||
| Title: | ____________________________________ | ||
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