Exhibit 10.11
EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement") is entered into effective this 5th day
of October, 1998 (the "Effective Date"), by and between NaPro BioTherapeutics,
Inc., a Delaware corporation (the "Company"), and Xxx X. Xxxxxx ("Executive").
Certain capitalized terms used in this Agreement have the meaning set forth in
Paragraph 17 hereof.
RECITALS
A. WHEREAS, Executive is currently employed by the Company; and
B. WHEREAS, the Company desires to secure the continued services of Executive as
an employee of the Company, and to provide for certain compensation and benefit
arrangements for Executive in the event of Executive's termination of employment
under certain circumstances, and Executive is willing to enter into this
Agreement and perform such services.
TERMS AND CONDITIONS
In consideration of the respective covenants and agreements of the
parties contained in this Agreement, the parties agree as follows:
1. Employment Services. The Company hereby agrees to engage Executive,
and Executive hereby agrees to perform services for the Company, on the terms
and conditions set forth in this Agreement. During the Employment Period (as
defined below), the Company and Executive agree that Executive will serve as an
executive officer of the Company in the position of Director, Legal Affairs with
the duties, responsibilities and authority as set forth on Schedule A, or will
have such other executive title and such other executive duties,
responsibilities and authority as Executive and the Company may agree upon from
time to time, and will perform such services of an executive and administrative
character to the Company and its present or future Subsidiaries consistent with
the duties of the Company's other executive officers, as the Company's Board of
Directors (the "Board") may from time to time direct (the "Employment Services")
or the Bylaws of the Company may provide. The Employment Services shall commence
upon the Effective Date of this Agreement and terminate as provided in Paragraph
6 (the "Employment Period").
2. Performance.
(a) Executive shall report to the Chief Executive Officer (or
person acting in a similar capacity if the Company has no Chief Executive
Officer), and Executive shall devote his best efforts and his full business time
and attention (except for permitted vacation periods) to the business of the
Company and its Subsidiaries; provided, however, that upon prior agreement by
the Chief Executive Officer, and subject to the terms of this Agreement,
Executive may engage in independent activities in areas unrelated to the
Company's business or the Company's actual or demonstrably anticipated business;
and provided, further, that no such independent activities shall materially
detract from the essentially full time commitment of Executive to the business
and affairs of the Company. Executive shall perform his duties and
responsibilities to the best of his abilities in a diligent, trustworthy,
businesslike and professional manner.
(b) Unless the Company and Executive otherwise agree,
Executive shall perform the Employment Services at the Company's executive
offices and traveling on business as Executive and the Company shall reasonably
deem necessary.
3. Compensation.
(a) During the Employment Period, the Company will pay
Executive for the Employment Services a base salary (the "Base Salary") at the
annual rate of $108,000 or such other increased rate as the compensation
committee of the Board or Board committee performing equivalent functions (the
"Compensation Committee") (or if the Board has no Compensation Committee at the
time, then the Board) may designate from time to time, such salary to be paid at
such periods as salary is paid to other executive officers of the Company. The
Compensation Committee (or the Board, if applicable) shall review the Base
Salary of the Executive at least annually on the anniversary of the Effective
Date and may, in its sole discretion, increase (but not decrease) such Base
Salary from time to time. Payment of the Base Salary shall be subject to the
customary withholding tax and other employment taxes as required with respect to
compensation paid by a corporation to an employee.
(b) Executive may receive an annual bonus in such amount, if
any, as the Compensation Committee (or if the Board has no Compensation
Committee at the time, then the Board), in its discretion, may award to
Executive, based upon Executive's and the Company's performance during each year
of the Employment Period, provided, however that each annual bonus payable to
Executive during the Employment Period shall not be less than the greater of (i)
$15,000 or (ii) the amount of the highest annual bonus paid to Executive for the
three most recent fiscal years of the Company.
(c) The Executive shall be entitled to receive such stock
options during the Employment Period as determined from time to time by the
Compensation Committee (or if the Board has no Compensation Committee at the
time, then the Board).
4. Reimbursement for Expenses. The Company shall promptly reimburse
Executive for all reasonable out-of-pocket expenses incurred by him in the
course of performing his duties under this Agreement, subject to the Company's
reasonable requirements with respect to reporting and documentation of such
expenses.
5. Benefits. Executive shall be entitled to all fringe benefits offered
by the Company and to participate in all of the Company's employee benefit
programs both on the same basis as available to executives of the Company, and
shall be entitled to such other benefits as may from time to time be made
available to Executive. The Company shall use commercially reasonable best
efforts to obtain and keep directors' and officers' liability insurance coverage
in effect in an amount equivalent to that of a well-insured, similarly-situated
company; provided, however, that the failure to obtain and keep such insurance
in effect after the Company has exercised such commercially reasonable best
efforts shall not be a breach of the Company's obligations under this Agreement.
During the Employment Period, Executive shall be entitled to four weeks of paid
vacation during each year of the Employment Period and may carry over up to four
weeks of vacation from one year to the next succeeding year only.
6. Term and Termination.
(a) Except as otherwise provided in this Agreement, the
Employment Period shall terminate upon the earlier of:
(i) three years from the Effective Date hereof (the
"Initial Term"); provided, however, that the Employment Period shall be
extended by one year after the Initial Term and each year thereafter on
the anniversary of the Effective Date of this Agreement (each such
extension, a "Renewal Term") unless either Executive or the Board shall
have given written notice to the other party no later than 180 days
prior to the commencement of any Renewal Term of his or its desire to
terminate the Employment Period on the date prior to the commencement
of such Renewal Term;
(ii) Executive's incapacity or permanent disability
(which in either case shall be deemed to occur only in the event
Executive is unable to perform the Employment Services for 180 days in
any 12-month period) or death;
(iii) termination by Executive voluntarily or for
Good Reason (as defined below);
(iv) termination by the Company with or without
Cause (as defined below).
(b) If the Employment Period is terminated (i) by the Company
without Cause or (ii) by Executive for Good Reason, then Executive shall be
entitled to receive, so long as Executive has not breached the provisions of
Paragraphs 9, 10, 12, 13, 14, or 16 hereof in a manner that could adversely
affect the Company, his Base Salary in cash at the periods set forth in
Paragraph 3, at a rate equal to the then applicable rate set forth in Paragraph
3 for a period equal to greater of (x) the remainder of the Initial Term or the
then current Renewal Term, as applicable, or (y) one year plus in either case
(I) the greater of (A) the most recent annual bonus, if any, awarded to
Executive pursuant to Paragraph 3(b) during the Company's fiscal year of or
during the Company's fiscal year prior to termination, as the case may be, (B)
the average amount of the last three annual bonuses, if any, awarded to
Executive pursuant to Paragraph 3(b) prior to termination, or (C) $15,000,
multiplied by in any case not less than the number of years for which Executive
is entitled to receive his Base Salary pursuant to this Paragraph 6(b) (prorated
for any partial year) (such bonus amounts to be paid pro rata over the term for
which Executive is entitled to receive his Base Salary pursuant to this
Paragraph 6(b)); plus (II) at Executive's election, medical, dental and any
other health insurance, life insurance, accidental death and dismemberment
insurance and disability protection no less favorable to Executive and his
dependents covered thereby (including that Executive shall remain obligated to
continue to pay any costs or expenses which Executive would otherwise be
obligated to pay pursuant to such insurance or other protections provided
pursuant to Paragraph 5 as in existence on the date of such termination) until
the first to occur of (i) the date of Executive's re-employment and subsequent
opportunity to participate in any health insurance program with comparable
coverage provided by such new employer, including without limitation, coverage
with respect to any pre-existing conditions or (ii) eighteen months after such
termination date.
(c) If a Change of Control (as defined below) occurs and
Executive is thereafter offered and accepts continued employment with the
Company (or its successor), and either (i) he is still employed by the Company
on the first calendar anniversary of the Change of Control, or (ii) his
employment with the
Company is terminated by the Company without Cause or he terminates his
employment for Good Reason during such one year period, the Company shall pay
Executive, in addition to any other amounts payable hereunder, a "stay bonus"
equal to one year's then current Base Salary. Such "stay bonus" shall be paid in
a cash lump sum to Executive within twenty (20) days following the earlier of
(i) the first anniversary of the date of the Change of Control or (ii) the date
of his termination of employment with the Company. For purposes of this
Agreement, a "Change of Control" means the happening of any of the following:
(i) the merger or consolidation of the Company into a new surviving company in
which the holders of the Company's voting securities (on a fully-diluted basis)
immediately prior to the merger or consolidation own less than a majority of the
ordinary voting power to elect directors of the new surviving company (on a
fully diluted basis), or (ii) when any "person" as defined in Section 3(a)(9) of
the Securities Exchange Act of 1934 (the "34 Act") and as used in Sections 13(d)
and 14(d) thereof, including a "group" as defined in Section 13(d) of the 34 Act
but excluding the Company and any Subsidiary or any employee benefit plan
sponsored or maintained by the Company or any Subsidiary (including a trustee of
such plan acting as trustee), directly or indirectly, becomes the "beneficial
owner" (as defined in Rule 13d-3 under the 34 Act, as amended from time to
time), of securities of the Company representing 25% or more of the combined
voting power of the Company's then outstanding securities.
(d) Except as provided in Paragraphs 6(b) or (c), upon
termination of the Employment Period, Executive shall be entitled to receive
only (i) accrued but unpaid salary and bonus through the date of such
termination and (ii) unpaid salary with respect to any vacation days accrued but
not taken as of the date of such termination.
(e) For purposes of this Agreement, "Cause" shall mean (i) the
conviction (or plea of nolo contendere) of a felony or a crime involving moral
turpitude or the commission of any other act which has an adverse effect on the
Company and which involves dishonesty, disloyalty or fraud with respect to the
Company or any of its Subsidiaries, (ii) conduct bringing the Company or any of
its Subsidiaries into substantial public disgrace or disrepute, including,
without limitation, such conduct resulting from repeated acts of alcohol or drug
abuse, (iii) continued failure by Executive to substantially perform his duties
as reasonably directed by the Board for a period of 15 days after the Board has
made a demand for substantial performance which specifically identifies the
manner in which the Board believes that Executive has not substantially
performed his duties, or (iv) gross negligence or misconduct not in good faith
with respect to the Company or any of its Subsidiaries, or (v) any other
material breach of this Agreement which is not cured within 15 days after
Executive's receipt of written notice thereof.
(f) For purposes of this Agreement, termination of the
Employment Period by Executive for "Good Reason" shall mean termination by
Executive (i) within 90 days after Executive has been assigned, without his
consent, to any duties substantially inconsistent with his position, duties,
responsibilities or status with the Company as contemplated in Paragraph 1 of
this Agreement; (ii) following a Change of Control, upon failure of the Company
to pay Executive an annual bonus equal to the average amount of such annual
bonus paid to Executive during the three fiscal years of the Company immediately
preceding the year in which the Change of Control occurs; (iii) following a
reduction of Executive's Base Salary after a Change of Control; (iv) if
Executive is required to regularly perform the duties of his employment more
than 50 miles from Boulder, Colorado; or (v) upon a material breach of this
Agreement by the Company which is not cured within 30 days after the Company's
receipt of written notice thereof. Executive shall provide written notice to the
Company of any and all grounds that Executive alleges constitute "Good Reason"
and the Company shall have 30 days after receipt of such written notice to cure
any such alleged grounds for "Good Reason". If, following the expiration of such
30 day period, Executive still believes that "Good Reason" exists for his
termination of Employment, the provisions of Paragraph 7 shall apply.
(g) Promptly (but in any event within 20 days) following any
termination of the Employment Period, and as of that date, the Company will
notify Executive of the itemized and aggregate cash value of the payments and
benefits, as determined under Section 280G of the Internal Revenue Code (the
"Code"), received or to be received by Executive in connection with the
termination of his employment (whether payable pursuant to the terms of this
Agreement or otherwise). At the same time, the Company shall advise Executive of
the portion of such payments or benefits which constitute parachute payments
within the meaning of the Code and which may subject Executive to the payment of
excise taxes pursuant to Section 4999 and the expected amount of such taxes
(such payments or benefits being hereinafter referred to as "Parachute
Payments").
(h) Notwithstanding the provisions of Paragraph 6(b) hereof,
if all or any portion of the payments or benefits provided under Paragraph 6(b)
either alone or together with other payments or benefits which Executive has
received or is then entitled to receive from the Company and any of its
Subsidiaries would constitute Parachute Payments, such payments or benefits
provided to Executive under Paragraph 6(b) shall be reduced to the extent
necessary so that no portion thereof shall be subject to the excise tax imposed
by Section 4999 of the Code; but only if, by reason of such reduction,
Executive's net after tax benefit shall exceed the net after tax benefit if such
reduction were not made. "Net after tax benefit" for purposes of this Paragraph
6(h) shall mean the sum of (i) the total amount payable to Executive under
Paragraphs 6(b) and (c) hereof, plus (ii) all other payments and benefits which
Executive has received or is then entitle to receive from the Company and any of
its subsidiaries that would constitute a Parachute Payment, less (iii) the
amount of federal income taxes payable with respect to the payment and benefits
described in (i) and (ii) above calculated at the maximum marginal income tax
rate for each year in which such payments and benefits shall be paid to
Executive (based upon the rate in effect for such year as set forth in the Code
at the Termination Date), less (iv) the amount of excise taxes imposed with
respect to the payments and benefits described in (i) and (ii) above by Section
4999 of the Code.
For purposes of this Paragraph 6(h), Executive's base amount,
the present value of the Parachute Payments, the amount of the excise tax and
all other appropriate matters shall be determined by the Company's independent
auditors in accordance with the principles of Section 280G of the Code and based
upon the advice of tax counsel selected by the Company, which tax counsel shall
be reasonably satisfactory to Executive.
7. Notice of Certain Termination. In the event that either (i) the
Company shall terminate Executive for Cause or (ii) Executive shall terminate
for Good Reason, then any such termination shall be communicated by written
notice to the other party hereto. Any such notice shall specify (x) the
effective date of termination of the Employment Period, which, except as
otherwise provided in Paragraph 6(f), shall not be more than 30 days after the
date the notice is delivered (the "Termination Effective Date") and (y) in
reasonable detail the facts and circumstances underlying a determination that
the termination is for Cause or for Good Reason, as the case may be. If within
15 days after any notice of termination of Executive for Cause by the Company is
given, or if within 15 days after the Company's 30 day cure period under
Paragraph 6(f) has expired, the party receiving such notice notifies the other
party that a good faith dispute exists concerning the characterization of the
termination, the Termination Effective Date shall be the date on which such
dispute is finally resolved either by written agreement of the parties or by
binding arbitration conducted pursuant to the rules of the American Arbitration
Association. Notwithstanding the pendency of any such dispute, the
Company shall continue Executive and his dependents as participants in all
medical, dental and any other health insurance and similar benefit plans of the
Company in which he and they were participating when the notice giving rise to
the dispute was given, until the dispute is finally resolved. Benefits provided
under this Paragraph 7 are in addition to all other amounts due under this
Agreement and shall not be offset against, or reduce any other amounts due
under, this Agreement.
8. Insurance. The Company may, at its election and for its
benefit, insure Executive against accidental death, and Executive shall submit
to such physical examination and supply such information as may be required in
connection therewith.
9. Non-disclosure of Confidential Information.
(a) Unless Executive first secures written consent from the
Company pursuant to procedures implemented by Company after the date hereof,
Executive shall not disclose or use at any time, either during the Employment
Period or thereafter, any Confidential Information (as defined in Paragraph 17)
except to the extent Executive reasonably believes is necessary to disclose or
use such Confidential Information in performing the Employment Services.
Executive further agrees that Executive will use Executive's commercial best
efforts to safeguard the Confidential Information and protect it against
disclosure, misuse, espionage, loss and theft, including, without limitation,
causing recipients of Confidential Information to enter into non-disclosure
agreements with the Company. Subject to the provisions of Paragraphs 10 and 13,
nothing herein shall be construed to prevent Executive from using Executive's
general knowledge and skill after termination of this agreement, whether
Executive acquired such knowledge or skill before or during the Employment
Period.
(b) In the event the Company has entered into confidentiality
agreements with third parties (not including Company employees) which contain
provisions different from those set forth in this Agreement, Executive agrees,
in addition to the provisions of Paragraph 9(a), to comply with any such
different provisions of which Executive is notified by the Company.
10. Company Ownership of Intellectual Property. Executive hereby
assigns to the Company all right, title and interest in and to all Intellectual
Property (as defined in Paragraph 17) contributed to or conceived or made by
Executive during the Employment Period and prior to the Employment Period during
the period Executive was employed by or engaged in research or development
activities for or with the Company or its predecessors and affiliates (whether
alone or jointly with others) to the extent such Intellectual Property is not
owned by the Company as a matter of law. Executive shall promptly and fully
communicate to the Company all Intellectual Property conceived, contributed to
or made by Executive and shall cooperate with the Company to protect the
Company's interests in such Intellectual Property including, without limitation,
providing assistance in securing patent protection and copyright registrations
and signing all documents reasonably requested by the Company, even if such
request occurs after the Employment Period. The Company shall pay Executive's
reasonable expenses of cooperating with the Company in protecting the Company's
interests in such Intellectual Property unless the subject matter of the
requested cooperation is related to actions taken or failed to be taken by
Executive wrongfully or otherwise not in good faith.
11. Executive's Rights. Paragraph 10 of this Agreement does not
apply to an invention for which no equipment, supplies, facilities or trade
secret information of the Company was used and which was
developed entirely on Executive's own time, unless (a) the invention relates (i)
to the business of the Company, or (ii) to the Company's actual or demonstrably
anticipated material research or development, or (b) the invention results from
any work performed by Executive for the Company.
12. Return of Materials. Upon Termination of the Employment Period, or
at any time reasonable requested by the Company, Executive shall promptly
deliver to the Company all copies of Confidential Information in Executive's
possession and control, including written records, manuals, lab notebooks,
customer and supplier lists and all other materials containing any Confidential
Information. If the Company requests, Executive shall provide written
confirmation that Executive has returned all such materials. Subject to the
provisions of this Agreement, including, without limitation, Paragraph 11,
notwithstanding anything in this Agreement to the contrary, upon termination of
the Employment Period, the Company, at Executive's request, shall promptly
return to Executive any equipment or other materials owned by Executive then
being used by or then in the possession of the Company.
13. Non-Competition. Executive acknowledges and agrees that during the
Employment Period and for a period of five years thereafter (the "Non-compete
Period"), Executive will not, without the prior written consent of the Company,
directly or indirectly, provide products or services substantially similar to
the Employment Services to any business or entity that provides or offers or
demonstrably plans to provide or offer, products or services that (i) are the
same as or substantially similar to the products or services provided by the
Company at any time during the Employment Period, (ii) relate to the Company's
Intellectual Property (whether the Company acquired such Intellectual Property
pursuant to this Agreement or otherwise), or (iii) relate to any subject matter
of the Company's actual or demonstrably anticipated material research and
development during the Employment Period, including without limitation, taxol,
taxanes and any other compounds, within any geographical area in which the
Company or any of its subsidiaries provide or plan to provide such products or
services.
14. Non-Solicitation. Executive acknowledges and agrees that during the
Non-compete Period Executive will not (a) solicit, induce or attempt to induce,
directly or indirectly, any employee of the Company to leave the employment of
the Company to work for Executive or for any other person, firm or corporation
or (b) hire any employee of the Company.
15. Acknowledgment of Reasonableness. Executive acknowledges and
agrees that the limitations set forth in Paragraphs 13 and 14 are reasonable
with respect to scope, duration and geographic area and are properly required
for the protection of the legitimate business interest of the Company.
16. Further Assistance. During the Non-compete Period, Executive will
not make any disclosure or other communication to any person, issue any public
statements or otherwise cause to be disclosed any information which is designed,
intended or might reasonably be anticipated to discourage any persons from doing
business with the Company or otherwise have a negative impact or adverse effect
on the Company, except to the extent such disclosure is required by law. During
the Non-compete Period, Executive will provide assistance reasonably requested
by the Company in connection with actions taken by Executive during the
Employment Period, including but not limited to assistance in connection with
any lawsuits or other claims against the Company arising from events during the
Employment Period, provided that the Company shall reimburse all reasonable
expenses (including without limitation, reasonable loss of compensation from
other sources resulting from such assistance during normal business hours).
17. Certain Definitions.
"Affiliate" means a person that directly, or indirectly
through one or more intermediaries, controls, or is controlled by, or is under
common control with, the person specified.
"Confidential Information" means all information (whether or
not specifically labeled or identified as confidential), in any form or medium,
that is disclosed to, or developed or learned by Executive during the Employment
Period and prior to the Employment Period during the period Executive was
employed by or engaged in research or development activities for or with the
Company or its predecessors and affiliates or that relates to the business,
products, services, customers, research or development of the Company, its
Subsidiaries, its Affiliates, or third parties with whom the Company, its
Subsidiaries or its Affiliates does business or from whom the Company or its
Affiliates receives information. Confidential Information shall not include any
information that (i) has become publicly known through no wrongful act or breach
of any obligation of confidentiality, as evidenced by written records or
documents; or (ii) was rightfully received by Executive on a non-confidential
basis from a third party (provided that such third party is not known to
Executive to be bound by a confidentiality agreement with the Company or another
party), as evidenced by written records or documents.
"Independent Third Party" means any person, including a
"group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934,
as amended, and the rules and regulations thereunder, who, immediately prior to
the contemplated transaction, does not own in excess of 5% of the Company's
Common Stock on a fully-diluted basis, who is not controlling, controlled by or
under common control with any such 5% owner of the Company's Common Stock and
who is not the spouse or descendent (by birth or adoption) of any such 5% owner
of the Company's Common Stock.
"Intellectual Property" means any idea, invention, design,
development, device, method or process (whether or not patentable or reduced to
practice or including Confidential Information) and all related patents and
patent applications, any copyrightable work or mask work (whether or not
including Confidential Information) and all related registrations and
applications for registration, and all other proprietary rights.
"Subsidiaries" means any corporation of which the securities
having a majority of the voting power in electing directors are, at the time of
determination, owned by the Company, directly or through one of more
Subsidiaries.
18. Executive Representations. Executive hereby represents and warrants
to the Company that (a) the execution, delivery and performance of this
Agreement by Executive does not and will not conflict with, breach, violate or
cause a default under any contract, agreement, instrument, order, judgment or
decree to which Executive is a party or by which he is bound, and (b) upon the
execution and delivery of this Agreement by the Company, this Agreement shall be
the valid and binding obligation of Executive, enforceable in accordance with
its terms.
19. Company Representations. The Company hereby represents and
warrants to Executive that (a) the execution, delivery and performance of this
Agreement by the Company does not and will not conflict with, breach, violate or
cause a default under any contract, agreement, instrument, order, judgment or
decree
to which Company is a party or by which it is bound, and (b) upon the execution
and delivery of this Agreement by Executive, this Agreement shall be the valid
and binding obligation of the Company, enforceable in accordance with its terms.
20. Severability and Modification. If any provision of this Agreement
shall be held or declared to be illegal, invalid or unenforceable, such illegal,
invalid or unenforceable provision shall not affect any other provision of this
Agreement, and the remainder of this Agreement shall continue in full force and
effect as though such provision had not been contained in this Agreement. If the
scope of any provision in this Agreement is found to be broad to permit
enforcement of such provision to its full extent, Executive consents to judicial
modification of such provision and enforcement to the maximum extent permitted
by law.
21. Notices. Except as otherwise expressly set forth in this Agreement,
all notices, requests and other communications to be given or delivered under or
by reason of the provisions of this Agreement shall be in writing and shall be
given (and, except as otherwise provided in this Agreement, shall be deemed to
have been duly given if so given) when delivered if given in person or by
telegram, three days after being mailed by first class registered or certified
mail, return receipt requested, postage prepaid, or one day after being sent
prepaid via reputable overnight courier to the parties at the following
addresses (or such other address as shall be furnished in writing by like
notice; provided, however, that notice of change of address shall be effective
only upon receipt):
Notices to Executive
Xxx X. Xxxxxx
c/o NaPro BioTherapeutics, Inc.
0000 Xxxxx Xxxx, Xxxx X
Xxxxxxx, Xxxxxxxx 00000
Notices to Company
NaPro BioTherapeutics, Inc.
0000 Xxxxx Xxxx, Xxxx X
Xxxxxxx, Xxxxxxxx 00000
Attn Xxxxxxxx X. Xxxxx, Ph.D.
Executive Vice President
with a copy to:
Holme Xxxxxxx & Xxxx
1700 Lincoln, Suite 4100
Xxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
22. Entire Agreement. This Agreement contains the entire
agreement between parties with respect to the subject matter hereof and
supersedes any previous understandings or agreements, whether written or oral,
regarding such subject matter.
23. Governing Law. All questions concerning the construction,
validity and interpretations of this Agreement will be governed by the internal
law, and not the law of conflicts, of the State of Colorado.
24. Survival. Paragraphs 6, 9, 10, 11, 12, 13, 14 and 16 and any other
provision of this Agreement which by its terms could survive termination of the
Employment Period shall survive and continue in full force in accordance with
their terms notwithstanding any termination of the Employment Period.
25. Counterparts. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
26. Successors and Assigns. This Agreement is intended to bind and
inure to the benefit of and be enforceable by Executive, the Company and their
respective successors and assigns; provided that in no event shall Executive's
obligations under this Agreement be delegated or transferred by Executive, nor
shall Executive's rights be subject to encumbrance or to the claims of
Executive's creditors. This Agreement is for the sole benefit of the parties
hereto and shall not create any rights in third parties other than Executive's
spouse or beneficiary as expressly set forth herein.
27. Remedies. Except as otherwise provided in this Agreement, (i) each
of the parties to this Agreement will be entitled to enforce its rights under
this Agreement specifically, to recover damages by reason of any breach of any
provision of this Agreement and to exercise all other rights to which it may be
entitled and (ii) disputes under this Agreement not finally resolved in writing
by the parties within sixty days after one party gives notice in good faith to
the other party that a bona fide dispute exists shall be resolved pursuant to
binding arbitration conducted in Denver, Colorado in accordance with the rules
of the American Arbitration Association. The prevailing party in any such
arbitration shall be entitled to have its costs and expenses (including
reasonable attorney's fees and expenses) relating to such arbitration paid by
the other party if the arbitrator(s) conducting such arbitration so determine.
Notwithstanding the foregoing, the parties agree and acknowledge that money
damages may not be an adequate remedy for breach of the provisions of this
Agreement and that any party may in its sole discretion apply to any court of
law or equity of competent jurisdiction for specific performance and/or
injunctive relief in order to enforce or prevent any violations of the
provisions of this Agreement. The prevailing party in any suit shall be entitled
to recover reasonable attorneys fees and costs from the other party.
28. Modifications and Waivers. No provision of this Agreement may be
modified, altered or amended except by an instrument in writing executed by the
parties hereto. No waiver by either party hereto of any breach by the other
party hereto of any term or provision of this Agreement to be performed by such
other party shall be deemed a waiver of similar or dissimilar terms or
provisions at the time or at any prior or subsequent time.
29. Headings. The headings contained herein are solely for the
purpose of reference, are not part of this Agreement and shall not in any way
affect the meaning or interpretation of this Agreement.
30. Notification of Subsequent Employer. Executive agrees that
the Company may present a copy of this Agreement to any third party.
31. UNDERSTAND AGREEMENT. EXECUTIVE REPRESENTS AND WARRANTS THAT (a)
EXECUTIVE HAS READ AND UNDERSTOOD EACH AND EVERY PROVISION OF THIS AGREEMENT,
(b) EXECUTIVE HAS HAD THE OPPORTUNITY TO OBTAIN ADVICE FROM LEGAL COUNSEL OF
EXECUTIVE'S CHOICE, OTHER THAN COUNSEL TO THE COMPANY (WHO IS NOT REPRESENTING
THE EXECUTIVE), IN ORDER TO INTERPRET ANY AND ALL PROVISIONS OF THIS AGREEMENT,
(c) EXECUTIVE HAS HAD THE OPPORTUNITY TO ASK THE COMPANY QUESTIONS ABOUT THIS
AGREEMENT AND ANY OF SUCH QUESTIONS EXECUTIVE HAS ASKED HAVE BEEN ANSWERED TO
EXECUTIVE'S SATISFACTION, AND (d) EXECUTIVE HAS BEEN GIVEN A COPY OF THIS
AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the day and year first above written.
EXECUTIVE
/s/
NAPRO BIOTHERAPEUTICS, INC.
By: /s/
