EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.13
THIS
AGREEMENT dated as of the 6th day of January 2010, to be effective as of the 1st
day of January 2010, by and between, AspenBio Pharma, Inc., a Colorado
corporation (the "Employer" or "Company") and Xxxxxxx Xxxxx (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
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
30 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
2.1 Duties. The
Executive shall be employed with the titles of Vice Chairman and Vice President
of Investor Relations, with responsibilities and authorities as are customarily
performed by such position 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.
2.2 Extent and Place of
Duties. Executive shall devote working time, efforts,
attention and energies to the business of the Employer on a substantial but not
full time basis as may further be agreed upon between the parties from time to
time. All such duties shall be performed working out of either the
Executive’s offices or the Castle Rock, CO, offices of the Company in addition
to regular trips for business and meetings on behalf of the Company as the
Executive and the Company may reasonably agree.
ARTICLE
3
COMPENSATION OF THE
EXECUTIVE
3.1 Salary. As
compensation for services rendered under this Agreement, the Executive will
receive a salary of $150,000 per year. Executive’s salary is payable
in accordance with Employer’s normal business practices. The parties agree that
the salary and compensation package will be reviewed at the end of the initial
year by the Compensation Committee of the Board of Directors.
3.2 Benefits. Executive
shall be entitled to participate in all of Employer's employee benefit plans and
employee benefits, including any retirement, pension, profit-sharing, incentive
compensation, 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.
ARTICLE
4
NON-COMPETITION;
CONFIDENTIALITY
4.1 During
the term of this Agreement, 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
consent to acquire an equity interest exceeding 5% by a vote of a majority of
the directors.
4.2 During
the term of this Agreement the Executive may maintain any existing outside
Officer and / or Board member positions and that, subject to Aspen Board
approval, which will not be unreasonably withheld, the Executive could join
additional non-competitive Boards as an Independent Board member as well, not to
exceed a total of three boards.
4.3 Except as
provided in this Section 4 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 those he is currently engaged in or through and on
behalf of the Company, without the consent from a majority of the
directors.
4.4 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 4.4, 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.
c. Executive
hereby agrees that upon the execution of this Agreement he will sign the
Company’s standard forms of; Code of Conduct, Confidentiality, Xxxxxxx Xxxxxxx
Policy and Inventions agreements.
4.5 Non-disparagement. During
the Term of the Executive's employment hereunder and for five (5) years
thereafter; 1) the Executive shall not disparage, deprecate, or make any
comments or take any other actions, directly or indirectly, that a reasonable
person would expect at the time would have the effect of diminishing or
constraining the goodwill and good reputation of the Company or its officers,
directors, employees or services, and 2) the Employer shall not disparage,
deprecate, or make any comments or take any other actions, directly or
indirectly, that a reasonable person would expect at the time would have the
effect of diminishing or constraining the goodwill and good reputation of the
Executive, except in each case, as may be required by
law. For the Executive, this obligation includes, but is not limited
to, refraining from negative statements about the Company's methods of doing
business, the effectiveness of its business policies, and the quality of any of
its services or personnel. Further, Executive will refrain from criticizing, or
making (directly or indirectly), or encouraging any other(s) to make, any public
attack(s) against the Company or any of its officers, directors or
employees. This specifically includes any such communications with any
newspaper or other news media.
ARTICLE
5
TERMINATION OF
EMPLOYMENT
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 or a change of control of over
50% of Employer;
(3) a
decision by Employer, approved by the Board to terminate its business and
liquidate its assets.
2. Death. This
Agreement shall terminate upon the death of Executive.
3. Disability. The
Employer may terminate this Agreement upon the disability of the
Executive. Executive shall be considered disabled (whether permanent
or temporary) if 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. Other
Termination. The Employer may terminate the Executive’s
employment hereunder for any reason.
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 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 Section 5.1, 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 this
Section 5.4.
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 for the six months following his death.
3. In the
event of 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 through the Date of Termination plus the compensation which would
otherwise be payable to Executive for the six months following such termination
for his disability.
4. If
Executive is terminated by Employer for any reason other than death or
disability as set forth in this Article 5, then Executive is entitled to
severance payments equal to six months compensation following the date of
Termination, under this Agreement. Such amounts being payable over such six
month periods’ normal payroll cycles; provided, however, that all such payments,
including in a lump sum if applicable, shall be fully paid by March 15 in the
year following the year of termination or, if applicable, otherwise so as not to
be subject to Section 409A of the Internal Revenue Code and furthermore
provided, however, that the Executive shall be obligated to execute a customary
release of claims in order to receive such severance payments.
5. If
Executive terminates this Agreement as set forth in Section 5.1.1., then
Executive is entitled to severance payments equal to six months compensation
following the date of Termination, under this Agreement. Such amounts being
payable over such six month periods’ normal payroll cycles; provided, however,
that all such payments, including in a lump sum if applicable, shall be fully
paid by March 15 in the year following the year of termination or, if
applicable, otherwise so as not to be subject to Section 409A of the Internal
Revenue Code and furthermore provided, however, that the Executive shall be
obligated to execute a customary release of claims in order to receive such
severance payments.
5.5 Other Termination
Provisions. Executive agrees that upon termination of this
Agreement and upon reasonable request by the Board of Directors, Executive shall
resign from any then effective Board, Officer or Committee
positions.
5.6 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
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
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 Xxxxx
000 X.
Xxxxxxxxxx Xxxx., #00
Xxxxxx,
XX 00000
Fax: 303/
000-0000
Employer:
Attn: Chairman
0000 Xxxxx Xxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Fax: 303/ 000-0000
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 Executive enter into this Executive Employment
Agreement effective as of the date first set forth above.
| AspenBio Pharma, Inc. - "EMPLOYER" | |||
|
|
By:
|
/s/ Xxxxx X. Xxxxxxxx | |
| Name: Xxxxx X. Xxxxxxxx | |||
| Title: Executive Chairman | |||
| Xxxxxxx Xxxxx - "EXECUTIVE" | |||
|
|
Signed
|
/s/ Xxxxxxx Xxxxx | |
| Xxxxxxx Xxxxx, Individually | |||
