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EXHIBIT 10.12
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), dated effective
September 1, 2000, is between Array Biopharma, Inc., a Delaware corporation (the
"Company"), and ___________ ("Employee").
In consideration of the mutual covenants and agreements
contained herein, the parties hereto agree as follows:
1. Employment. The Company hereby employs Employee and
Employee hereby agrees to be employed by the Company for the period and upon the
terms and conditions hereinafter set forth.
2. Capacity and Duties. Employee shall initially be employed
by the Company in such executive capacity as the officers or directors of the
Company shall determine. During his employment Employee shall perform the duties
and bear the responsibilities commensurate with his position and shall serve the
Company faithfully and to the best of his ability, under the direction of the
board of directors and the duly elected officers of the Company. Employee shall
devote his entire working time, attention and energies to the business of the
Company. His actions shall at all times be such that they do not discredit the
Company or its products and services. Employee shall not engage in any other
business activity or activities that, in the judgment of the board of directors,
may conflict with the proper performance of Employee's duties hereunder,
including constituting a conflict of interest between such activity and the
Company's business.
3. Compensation.
(a) For all services rendered by Employee the Company
shall pay Employee during the term of this Agreement an annual salary as set
forth herein, payable semimonthly in arrears. Employee's initial annual salary
shall be $___________. During the term of this Agreement, the amount of
Employee's salary shall be reviewed at periodic intervals and, upon agreement of
the parties hereto, appropriate adjustments in such salary may be made. In
addition, Employee shall be eligible for performance bonuses on an annual or
more frequent basis, as determined by, and at the discretion of the Company.
(b) In addition to salary payments as provided in
Section 3(a), the Company shall provide Employee, during the term of this
Agreement, with the benefits of such insurance plans, hospitalization plans and
other employee fringe benefit plans as shall be generally provided to employees
of the Company and for which Employee may be eligible under the terms and
conditions thereof. Nothing herein contained shall require the Company to adopt
or maintain any such employee benefit plans.
(c) During the term of this Agreement, except as
otherwise provided in Section 5(b), Employee shall be entitled to sick leave and
annual vacation consistent with the Company's customary sick leave and vacation
policies.
(d) During the term of this Agreement the Company
shall reimburse Employee for all reasonable out-of-pocket expenses incurred by
Employee in connection with the
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business of the Company and in the performance of his duties under this
Agreement upon presentation to the Company of an itemized accounting of such
expenses with reasonable supporting data.
4. Term. Unless sooner terminated in accordance with Section
5, the term of this Agreement shall be two years from the date of this
Agreement, and thereafter shall continue for one year terms from year to year
unless and until either party shall give notice to the other at least 60 days
prior to the end of the original or then current renewal term of his or its
intention to terminate at the end of such term. The provisions of Sections 6, 7,
8 and 10 shall remain in full force and effect for the time periods specified in
such Sections notwithstanding the termination of this Agreement.
5. Termination/Severance.
(a) If Employee dies during the term of this
Agreement, the Company shall pay his estate the compensation that would
otherwise be payable to him for the month in which his death occurs, this
Agreement shall be considered terminated on the last day of such month and the
Company shall cause any issued but unvested options granted to Employee to
immediately vest.
(b) If during the term of this Agreement Employee is
prevented from performing his duties by reason of illness or incapacity for a
continuous period of 120 days the Company may terminate this Agreement upon 30
days' prior notice thereof to Employee or his duly appointed legal
representative. For the purposes of this Section 5(b), a period of illness or
incapacity shall be deemed "continuous" notwithstanding Employee's performance
of his duties during such period for continuous periods of less than 15 days in
duration.
(c) The Company may terminate this Agreement at any
time, upon 10 days' prior notice, for Employee's 1) gross negligence; 2) a
material breach of any obligation created by this Agreement; 3) a violation of
any policy, procedure or guideline of the Company, or any material injury to the
economic or ethical welfare of the Company caused by Employee's malfeasance,
misfeasance, misconduct or inattention to Employee's duties and
responsibilities, or any other material failure to comply with the Company's
reasonable performance expectations, upon notice of same from Company and
failure to cure such violation, injury or failure within 30 days; or 4)
misconduct, including but not limited to, commission of any felony, or of any
misdemeanor involving dishonesty or moral turpitude, or violation of any state
or federal law in the course of his or her employment; theft or misuse of the
Company's property or time.
(d) The Company may terminate this Agreement at any
time for any or no reason upon 30 days' notice to Employee.
(e) If this Agreement is terminated by the Company
prior to the end of the term pursuant to any provision other than 5(a) or 5(c),
then i) the Company shall pay to Employee one year's annual salary, or the
amount due Employee through the remainder of the term, whichever is greater, in
equal monthly installments, subject to all applicable deductions and
withholdings; and ii) the Company shall cause any issued but unvested options
granted to Employee to immediately vest. In the event of (x) reduction of
Employee's salary to a rate below the initial annual salary; or (y)
consolidation or merger involving the Company in which the Company is not the
surviving entity or any transaction in which more than 50% of the Company's
voting power is transferred or more than 50% of the Company's assets are sold,
Employee may elect to treat such event, by notice of termination within 30 days
of its occurrence, as a termination pursuant to 5(d); provided, that any
accelerated vesting pursuant to (ii) caused by such notice of termination as a
result of (y) shall cause no more than 75% of all outstanding options granted to
Employee to vest.
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(f) If a change in control occurs, as defined in
Paragraph (5)(e)(y) above, 75% of all outstanding options granted to Employee as
of such event shall immediately vest (to the extent they are not already
vested), and the remainder of all outstanding options granted to Employee as of
such event shall vest one year from the date of the closing of such event if
Employee remains in continuous service with the Company for one year from such
closing date. The foregoing acceleration provision shall be supplementary to,
and shall not diminish any rights that Employee has under, any other written
agreement with the Company, including an option certificate or agreement.
6. Confidential Information. This Agreement incorporates by
reference all the terms of that certain Confidential Information Agreement dated
as of ______________ between Employee and the Company, as if fully set forth
herein.
7. Covenants Not to Compete or Interfere. This Agreement
incorporates all the terms of that certain Noncompete Agreement dated as of
______________ between Employee and the Company, as if fully set forth herein.
8. Waiver of Breach. A waiver by the Company of a breach of
any provision of this Agreement by Employee shall not operate or be construed as
a waiver of any subsequent breach by Employee.
9. Severability. It is the desire and intent of the parties
that the provisions of this Agreement shall be enforced to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, if any particular provision or portion
of this Agreement shall be adjudicated to be invalid or unenforceable, this
Agreement shall be deemed amended to delete therefrom the portion thus
adjudicated to be invalid or unenforceable, such deletion to apply only with
respect to the operation of this Section in the particular jurisdiction in which
such adjudication is made.
10. Notices. All communications, requests, consents and other
notices provided for in this Agreement shall be in writing and shall be deemed
given if mailed by first class mail, postage prepaid, addressed as follows: i)
If to the Company: to its principal office at 0000 00xx Xxxxxx, Xxxxxxxx XX-0,
Xxxxxxx, Xxxxxxxx 00000-0000; ii) If to Employee: at the principal office of the
Company; or such other address as either party may hereafter designate by notice
as herein provided. Notwithstanding the foregoing provisions of this Section 10,
so long as Employee is employed by the Company any such communication, request,
consent or other notice shall be deemed given if delivered as follows: if to the
Company, by hand delivery to any executive officer of the Company [other than
Employee], and if to Employee, by hand delivery to him.
11. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Colorado
without regard to choice of law provisions thereof, and the parties each agree
to exclusive jurisdiction in the state and federal courts in Colorado.
12. Assignment. The Company may assign its rights and
obligations under this Agreement to any affiliate of the Company or to any
acquirer of substantially all of the business of the Company, and all covenants
and agreements hereunder shall inure to the benefit of and be enforceable by or
against any such assignee. Neither this Agreement nor any rights or duties
hereunder may be signed or delegated by Employee.
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13. Entire Agreement. This Agreement sets forth the entire
agreement and understanding of the parties and supersedes all prior
understandings, agreements or representations by or between the parties, whether
written or oral, which relate in any way to the subject matter hereof.
14. Amendments. No provision of this Agreement shall be
altered, amended, revoked or waived except by an instrument in writing signed by
the party sought to be charged with such amendment, revocation or waiver.
15. Binding Effect. Except as otherwise provided herein, this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective legal representatives, heirs, successors and
assigns.
***Signature Page Follows***
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IN WITNESS WHEREOF the parties have executed this Agreement as
of the date first above written.
THE COMPANY:
ARRAY BIOPHARMA, INC.
By:
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Name:
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Title:
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EMPLOYEE:
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