EXHIBIT 10.1
EMPLOYMENT AGREEMENT
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FEBRUARY 2004
THIS EMPLOYMENT AGREEMENT (the "AGREEMENT") is made as of this 23rd day
of February 2004 by and between PHARMION CORPORATION, with principal offices at
0000 00xx Xxxxxx, Xxxxxxx, Xxxxxxxx (the "COMPANY"), and XXXXXXX X. XXXXXXX of
000 0xx Xxxxxx, Xxxxxxx, Xxxxxxxx ("EXECUTIVE," and together with the Company,
the "PARTIES").
WHEREAS, the Executive is currently in the employ of the Company on the
terms and subject to the conditions as originally set forth between them;
WHEREAS, the parties intend that this Employment Agreement shall
supersede and replace the original verbal or written agreements;
NOW, THEREFORE, in consideration of the promises, mutual covenants, the
above recitals, and the agreements herein set forth, and for other good and
valuable consideration, the sufficiency of which is hereby acknowledged, the
Parties agree to the following terms and conditions of Executive's employment:
1. EMPLOYMENT. The Company hereby agrees to employ Executive as Chief
Executive Officer, and Executive hereby accepts such employment upon the terms
and conditions set forth herein and agrees to perform duties as assigned by the
Company. Executive's employment as provided herein, shall be deemed to have
commenced, January 1, 2000 ("EFFECTIVE DATE"), and shall continue until
terminated pursuant to the provisions of Section 10 below ("TERMINATION").
2. AT-WILL EMPLOYMENT. IT IS UNDERSTOOD AND AGREED BY THE COMPANY AND
EXECUTIVE THAT THIS AGREEMENT DOES NOT CONTAIN ANY PROMISE OR REPRESENTATION
CONCERNING THE DURATION OF EXECUTIVE'S EMPLOYMENT WITH THE COMPANY. EXECUTIVE
SPECIFICALLY ACKNOWLEDGES THAT HIS EMPLOYMENT WITH THE COMPANY IS AT-WILL AND
MAY BE ALTERED OR TERMINATED BY EITHER EXECUTIVE OR THE COMPANY AT ANY TIME,
WITH OR WITHOUT CAUSE AND/OR WITH OR WITHOUT NOTICE. EXECUTIVE ACKNOWLEDGES THAT
THE COMPANY'S ONLY OBLIGATIONS, IF ANY, UPON TERMINATION OF EXECUTIVE'S
EMPLOYMENT ARE SET FORTH IN SECTION 10 BELOW, WHICH SECTION DOES NOT ALTER THE
AT-WILL NATURE OF EXECUTIVE'S EMPLOYMENT. THE NATURE, TERMS OR CONDITIONS OF
EXECUTIVE'S EMPLOYMENT WITH THE COMPANY CANNOT BE CHANGED BY ANY ORAL
REPRESENTATION, CUSTOM, HABIT OR PRACTICE, OR ANY OTHER EXCEPT AS PROVIDED FOR
IN THE FINAL SENTENCE OF THIS SECTION 2. IN ADDITION, THAT THE RATE OF SALARY OR
OTHER COMPENSATION IS STATED IN UNITS OF YEARS OR MONTHS DOES NOT ALTER THE
AT-WILL NATURE OF THE EMPLOYMENT, AND DOES NOT MEAN AND SHOULD NOT BE
INTERPRETED TO MEAN THAT EXECUTIVE IS GUARANTEED EMPLOYMENT TO THE END OF ANY
PERIOD OF TIME OR FOR ANY PERIOD OF TIME. IN THE EVENT OF CONFLICT BETWEEN THIS
DISCLAIMER AND
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ANY OTHER STATEMENT, ORAL OR WRITTEN, PRESENT OR FUTURE, CONCERNING TERMS AND
CONDITIONS OF EMPLOYMENT, THE AT-WILL RELATIONSHIP CONFIRMED BY THIS DISCLAIMER
SHALL CONTROL. THIS AT-WILL STATUS CANNOT BE ALTERED EXCEPT IN WRITING SIGNED BY
EXECUTIVE AND THE COMPANY, WITH EXPLICIT APPROVAL OF THE BOARD OF DIRECTORS.
3. DUTIES. Executive shall render exclusive, full-time services (except
if/as agreed to in advance by the Company Board of Directors) to the Company as
its Chief Executive Officer. He shall render such services diligently. Executive
shall perform services under this Agreement at the Boulder, Colorado office of
the Company, from such other locations as directed by the Company, and from
locations necessary to perform the duties of Chief Executive Officer under this
Agreement. Executive's responsibilities, title, working conditions, location,
duties and/or any other aspect of Executive's employment may be changed, added
to or eliminated during employment at the sole discretion of the Company. During
the Term of this Agreement, Executive shall devote his time, skill and attention
to the performance of his duties on behalf of the Company.
4. POLICIES AND PROCEDURES. Executive agrees that he is subject to and
will comply with the policies and procedures of the Company, as such policies
and procedures may be modified, added to or eliminated from time to time at the
sole discretion of the Company, except to the extent any such policy or
procedure specifically conflicts with the express terms of this Agreement.
Executive further agrees and acknowledges that any written or oral policies and
procedures of the Company do not constitute contracts between the Company and
Executive.
5. COMPENSATION.
(a) BASE SALARY. For services rendered under this Agreement,
the Company agrees to pay to Executive, and Executive agrees to accept a salary
of $350,000 per annum ("Base Salary"). Such Base Salary shall be payable in
installments in accordance with the Company's normal payroll practices and shall
be subject to such deductions or withholdings as the Company is required to make
pursuant to law, or by further agreement with Executive. Executive's Base Salary
will be reviewed annually by the Company's Board of Directors and may be
adjusted from time to time as the Board, in its sole discretion, deems
appropriate.
(b) BONUS. Executive will be eligible to participate in a
bonus plan pursuant to which he may be entitled to receive an annual bonus of
his Base Salary based upon the achievement by Executive and the Company of
certain milestones as determined solely in the discretion of the Company's Board
of Directors.
6. RELOCATION EXPENSES. N/A
7. OTHER BENEFITS. While employed by the Company as provided herein:
(a) EMPLOYEE BENEFITS. Executive shall be entitled to
participate in the Company's various employee benefit plans as such plans are
established pursuant to the terms and conditions of such plans. Currently, the
Company has adopted the following plans: Group health,
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vision and dental insurance plan; short and long term disability plan, life
insurance plan; and 401(k) plan. The Company reserves the right to alter, amend
and to terminate the benefits received by Executive from time to time at the
Company's discretion, and nothing in this Section shall require that the Company
adopt, amend, maintain or terminate any employee benefit plan.
(b) EXPENSE REIMBURSEMENT. Executive shall receive, against
presentation of proper receipts and vouchers, reimbursement for direct and
reasonable out-of-pocket expenses incurred in connection with the performance of
his duties hereunder, according to the policies of the Company.
(c) PAID VACATION TIME. Executive shall be entitled to 4 weeks
paid vacation time per year in accordance with the Company's vacation time
policy.
8. PROPRIETARY AND OTHER OBLIGATIONS. Executive acknowledges that
signing and complying with the Confidential Information and Invention Assignment
Agreement ("Confidentiality Agreement") attached as Attachment A, is a condition
of his employment by the Company. Executive therefore agrees to sign and comply
with the Confidentiality Agreement and acknowledges that by beginning employment
with the Company, he will be deemed to have signed and agreed to all provisions
of the Confidentiality Agreement.
9. TERMINATION. Executive's employment hereunder may be terminated
without any breach of this Agreement under the following circumstances (each, a
"Termination"):
(a) TERMINATION UPON EXECUTIVE'S DEATH. This Agreement shall
terminate upon the death of Executive.
(b) TERMINATION UPON EXECUTIVE'S DISABILITY. Subject to any
state or federal law or regulation governing employees with disabilities, the
Company may terminate this Agreement upon the Disability of Executive. For
purposes of this Agreement, "Disability" shall mean that Executive, due to
illness, accident, or other physical or mental incapacity, has been
substantially unable to perform the duties required of him under this Agreement,
either with or without reasonable assistance, for a continuous period of more
than three months.
(c) TERMINATION BY THE COMPANY FOR JUST CAUSE. The Company may
terminate Executive's employment under this Agreement for Just Cause. For
purposes of this Agreement, "Just Cause" for termination shall mean that the
Company, acting in good faith based upon the information then known to it,
determines that:
(i) Executive has committed or engaged in negligent
or willful conduct that is likely to be detrimental to the Company;
(ii) Executive has engaged in acts which constitute
theft, fraud, or other illegal or dishonest conduct which are considered to be
harmful to the Company as determined by the majority vote of its Board of
Directors;
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(iii) Executive has willfully disobeyed the
reasonable and lawful directives of the Company's Board of Directors;
(iv) Executive has refused or is unwilling to perform
his job duties;
(v) Executive has failed adequately to perform his
job duties (provided, however, that the Company shall provide Executive with
written notice of the deficiencies in his performance and Executive shall be
given 45 days to remedy such deficiencies);
(vi) Executive has demonstrated habitual absenteeism;
(vii) Executive is substantially dependent on alcohol
or any controlled substance or violates any general Company policy with regard
to alcohol or controlled substances;
(viii) Executive has engaged in acts which constitute
sexual or other forms of illegal harassment or discrimination;
(ix) Executive makes public remarks that disparage
the Company, its Board of Directors, officers, directors, advisors, executives,
affiliates or subsidiaries;
(x) Executive violates his fiduciary duty to the
Company, or his duty of loyalty to the Company; or
(xi) Executive breaches any term of this Agreement,
including the Confidentiality Agreement attached hereto as Attachment A.
The Parties acknowledge that this definition of "Just Cause" in not
intended and does not apply to any aspect of the relationship between the
Company and any of its employees, including Executive, beyond determining
Executive's eligibility for severance pay pursuant to Section 10 below.
(d) TERMINATION BY THE COMPANY WITHOUT JUST CAUSE. The Company
may terminate Executive's employment without Just Cause upon 30 days' advance
written notice to Executive.
(e) TERMINATION BY EXECUTIVE FOR GOOD REASON. Upon written
notice to the Company, Executive may terminate his employment under this
Agreement for Good Reason. For purposes of this Agreement, "Good Reason" shall
mean:
(i) The Company becoming insolvent, as evidenced by
its inability to meet its obligations in the ordinary course of business;
(ii) A reduction in Executive's Base Salary of more
than 10% per year, without Executive's consent;
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(iii) Executive being required to relocate his
residence further than 45 miles from the Company's office located at 0000 00xx
Xxxxxx, Xxxxxxx, Xxxxxxxx, without Executive's consent; or
(iv) A material reduction in the scope of Executive's
duties, or a material change in the content of Executive's duties.
Executive must provide the Company with written notice of his decision
to terminate his employment for Good Reason pursuant to this Section 9(e) no
later than 90 days following the receipt of a notice from the company than an
act or event constituting Good Reason has occurred.
(f) TERMINATION BY EXECUTIVE FOR OTHER THAN GOOD REASON.
Executive may terminate his employment under this Agreement other than for Good
Reason upon 30 days' advance written notice to the Company.
10. COMPENSATION AND OTHER BENEFITS UPON TERMINATION. Executive shall
be entitled to the following compensation and benefits upon Termination:
(a) TERMINATION AS A RESULT OF EXECUTIVE'S DEATH OR
DISABILITY. Upon Termination pursuant to Section 9(a) [termination as a result
of Executive's death], or Section 9(b) [termination as a result of Executive's
Disability], Executive shall be entitled to receive any Base Salary and prorated
bonus earned but unpaid as of the date of Termination, all accrued but unused
vacation benefits as of the date of Termination, and any business expenses that
were incurred but not reimbursed as of the date of Termination.
(b) TERMINATION BY THE COMPANY FOR JUST CAUSE; TERMINATION BY
EXECUTIVE FOR OTHER THAN GOOD REASON. Upon Termination pursuant Section 9(c)
[termination by The Company for Just Cause] or Section 9(f) [termination by
Executive for other than Good Reason], Executive shall be entitled to receive
any Base Salary earned but unpaid as of the date of Termination, all accrued but
unused vacation benefits as of the date of Termination, and any business
expenses that were incurred but not reimbursed as of the date of Termination.
(c) TERMINATION BY THE COMPANY WITHOUT JUST CAUSE, TERMINATION
BY EXECUTIVE FOR GOOD REASON. Upon Termination pursuant to Section 9(d)
[termination by the Company without Just Cause] or Section 9(e) [termination by
Executive for Good Reason], Executive shall be entitled to receive any Base
Salary earned but unpaid as of the date of Termination, all accrued but unused
vacation benefits as of the date of Termination, and any business expenses that
were incurred but not reimbursed as of the date of Termination. In addition,
upon the execution by Executive and delivery to the Company of a Request for
Severance Pay and Release of Claims in the form attached hereto as Attachment B
(the "RELEASE") releasing all claims that Executive may have against Company as
of the date Executive signs such Release, Executive shall be entitled to receive
severance pay ("SEVERANCE PAY") made either in a lump sum or in twenty-four
equal monthly installments, in the Company's sole discretion, equal to
twenty-four (24) months' of Executive's Base Salary (calculated at the same rate
of Base Salary most recently applicable to Executive immediately prior to the
date of
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termination), and 24 months COBRA benefit coverage for health, dental and vision
insurance (at a coverage level equal to or below coverage on the day before the
date of termination). The Severance Pay shall be subject to such deductions or
withholdings as the Company is required to make pursuant to law. Executive shall
not be entitled to receive any Severance Pay from the Company until the Release
has become effective pursuant to its terms.
(d) TERMINATION AFTER CHANGE IN CONTROL. Upon a Termination
pursuant to Section 9(d) [termination by the Company without Just Cause] or
Section 9(e) [termination by Executive for Good Reason] occurring on or within
twenty-four (24) months after a Change in Control (as defined below), (i) the
vesting and exercisability of all of Executive's stock options and other
equity-based awards will be accelerated in full so that all such stock options
will be immediately exercisable for fully vested stock and any other stock
awards will be fully vested as of the date of such Termination, and (ii)
Executive's stock options will remain exercisable until the first anniversary of
Executive's date of Termination. For purposes of this Agreement, "Change of
Control" shall mean (1) a sale of all or substantially all the assets of the
Company; (2) a merger into or consolidation of the Company with any other
corporation, except any such merger or consolidation involving the Company or a
subsidiary of the Company in which the holders of capital stock of the Company
immediately prior to such merger or consolidation continue to hold immediately
following such merger or consolidation at least 50% by voting power of the
capital stock of (a) the surviving or resulting corporation or (b) if the
surviving or resulting corporation is a wholly owned subsidiary of another
corporation immediately following such merger or consolidation, the parent
corporation of such surviving or resulting corporation, (3) the acquisition by
any person, entity or group within the meaning of Section 13(d) or 14(d)(2) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or any
comparable successor provisions (excluding any employee benefit plan, or related
trust, sponsored or maintained by the Company or any parent or subsidiary
corporation of the Company) of the beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange Act, or comparable successor rule) of
securities of the Company representing at least fifty percent (50%) of the
combined voting power entitled to vote in the election of directors, or (4)
individuals who, on the date of execution of this Amended and Restated
Agreement, are members of the Company's Board of Directors (the "Incumbent
Board") cease for any reason to constitute at least a majority of the members of
the Board of Directors; provided, however, that if the appointment or election
(or nomination for election) of any new Board of Directors member was approved
or recommended by a majority vote of the members of the Incumbent Board then
still in office, such new member shall, for purposes of this Agreement, be
considered as a member of the Incumbent Board.
(e) PARACHUTE PAYMENT GROSS-UP. If any payment or benefit
Executive would receive from the Company or otherwise would constitute a
parachute payment that would subject Executive to an excise tax ("Excise Tax")
under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code")
(or any successor provision), Executive shall be entitled to receive an
additional lump sum payment in cash (the "Tax Gross-Up"), subject to mandatory
tax withholding, which, when added to all payments and benefits allocable to
Executive that constitute parachute payments, provides Executive with the same
after-tax compensation that he would have received from such parachute payments
had none of such compensation constituted a parachute payment. The amount of any
such Tax Gross-Up to which Executive becomes entitled under this paragraph will
be determined pursuant to the following formula:
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X = Y divided by (1 - (A + B + C)), where
X is the total dollar amount of the Tax Gross-Up payable to
Executive;
Y is the total Excise Tax imposed on Executive;
A is the Excise Tax rate applicable to Executive's parachute
payments;
B is the highest combined marginal federal income and
applicable state income tax rate in effect for Executive,
after taking into account the deductibility of state income
taxes against federal income taxes to the extent allowable,
for the calendar year in which the Tax Gross-Up is paid; and
C is the applicable Hospital Insurance (Medicare) Tax Rate in
effect for Executive with respect to the Tax Gross-Up payment
for the calendar year in which the Tax Gross-Up is paid;
provided if there is a change in the tax laws after the date hereof that would
render the amount determined above insufficient to fully reimburse Executive on
an after-tax basis for the amount of any Excise Tax, Executive shall be entitled
to such additional amount as may be necessary to provide him with such
reimbursement.
Within ninety (90) days after a determination is made by the Internal Revenue
Service or Executive's tax advisor that an item of compensation or benefit
payable hereunder constitutes a parachute payment under Code Section 280G for
which Executive is liable for an Excise Tax, Executive shall identify the nature
of the payment to the Company and submit to the Company the calculation of the
Excise Tax attributable to that payment and the Tax Gross-Up to which Executive
is entitled with respect to such tax liability. The Company will pay such Tax
Gross-Up to Executive (net of all applicable withholding taxes, including any
taxes required to be withheld under Code Section 4999) within ten (10) business
days after Executive's submission of the calculation of such Excise Tax and the
resulting Tax Gross-Up, provided such calculations represent a reasonable
interpretation of the applicable law and regulations.
In the event that Executive's actual Excise Tax liability is determined by a
Final Determination to be greater than the Excise Tax liability previously taken
into account for purposes of the Tax Gross-Up paid to Executive pursuant to this
paragraph, then within ninety (90) days following the Final Determination,
Executive shall submit to the Company a new Excise Tax calculation based upon
the Final Determination. Within ten (10) business days after receipt of such
calculation, the Company shall pay Executive the additional Tax Gross-Up
attributable to such excess Excise Tax liability.
In the event that Executive's actual Excise Tax liability is determined by a
Final Determination to be less than the Excise Tax liability previously taken
into account for purposes of the Tax Gross-Up paid to Executive pursuant to this
paragraph, then Executive shall refund to the Company, promptly upon receipt,
any federal or state tax refund attributable to the Excise Tax overpayment.
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For purposes of this paragraph 10(e), a "Final Determination" means an audit
adjustment by the Internal Revenue Service that is either (i) agreed to by both
Executive (or his estate) and the Company (such agreement by the Company to be
not unreasonably withheld) or (ii) sustained by a court of competent
jurisdiction in a decision with which Executive and the Company concur (such
concurrence by the Company to be not unreasonably withheld) or with respect to
which the period within which an appeal may be filed has lapsed without a notice
of appeal being filed.
11. RESTRICTIVE COVENANT; NON-COMPETE. Executive acknowledges and
agrees that the agreements and covenants contained in this Section 11 are (i)
reasonable and valid in geographical and temporal scope and in all other
respects, and (ii) essential to protect the value of the Company's business and
assets, and by his employment with the Company, Executive will obtain knowledge,
contacts, know-how, training and experience and there is a substantial
probability that such knowledge, know-how, contacts, training and experience
could be used to the substantial advantage of a competitor of the Company and to
the Company's substantial detriment. For purposes of this Section 11, references
to the Company shall be deemed to include its subsidiaries.
(a) NON-COMPETE. Executive covenants and agrees that during
Executive's employment with the Company (the "Employment Period") and for a
period extending to the first anniversary of Executive's Termination for any
reason or for no reason (the "Restricted Period"), with respect to any state or
foreign country in which the Company is engaged in business at the time of such
Termination, Executive shall not, directly or indirectly, individually or
jointly, own any interest in, operate, join, control or participate as a
partner, director, principal, officer, or agent of, enter into the employment
of, act as a consultant to, or perform any services for any entity which
competes to a material extent with the business activities in which the Company
is engaged at the time of such termination or in which business activities the
Company has documented plans to become engaged in and as to which Executive has
knowledge at the time of Termination, or any entity in which any such
relationship with Executive would result in the inevitable use or disclosure of
Confidential Information. Notwithstanding anything herein to the contrary, this
Section 11(a) shall not prevent Executive from acquiring as an investment
securities representing not more than one percent (1%) of the outstanding voting
securities of any publicly-held corporation.
(b) EXTENSION. If Executive violates the provisions of Section
11(a) above, Executive shall continue to be bound by the restrictions set forth
in Section 11(a) until a period of one year has expired without any violation of
such provisions.
(c) BLUE PENCIL. If any court of competent jurisdiction shall
at any time deem the duration or the geographic scope of any of the provisions
of this Section 11 unenforceable, the other provisions of this Section 11 shall
nevertheless stand and the duration and/or geographic scope set forth herein
shall be deemed to be the longest period and/or greatest size permissible by law
under the circumstances, and the parties hereto agree that such court shall
reduce the time period and/or geographic scope to permissible duration or size.
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12. MISCELLANEOUS.
(a) TAXES. Executive acknowledges that the Company will
withhold all taxes required by law with respect to any and all compensation or
benefits provided by the Company pursuant to this Agreement. Executive
acknowledges that the Company has not made, nor herein makes, any representation
about the tax consequences of any consideration provided by the Company to
Executive pursuant to this Agreement, except as expressly provided herein.
(b) MODIFICATION/WAIVER. This Agreement may not be amended,
modified, superseded, canceled, renewed or expanded, or any terms or covenants
hereof waived, except by a writing executed by each of the parties hereto or, in
the case of a waiver, by the party waiving compliance. Failure of any party at
any time or times to require performance of any provision hereof shall in no
manner affect their or its right at a later time to enforce the same. No waiver
by a party of a breach of any term or covenant contained in this Agreement,
whether by conduct or otherwise, in any one or more instances shall be deemed to
be or construed as a further or continuing waiver of agreement contained in the
Agreement.
(c) SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and shall inure to the benefit of any successor or assignee of the business
of the Company. This Agreement shall not be assignable by the Executive.
(d) NOTICES. All notices given hereunder shall be given by
certified mail, addressed, or delivered by hand, to the other party at his or
its address as set forth herein, or at any other address hereafter furnished by
notice given in like manner. Executive promptly shall notify Company of any
change in Executive's address. Each notice shall be dated the date of its
mailing or delivery and shall be deemed given, delivered or completed on such
date.
(e) GOVERNING LAW; PERSONAL JURISDICTION AND VENUE. This
Agreement and all disputes relating to this Agreement shall be governed in all
respects by the laws of the State of Colorado. The Parties acknowledge that this
Agreement constitutes the minimum contacts to establish personal jurisdiction in
Colorado and agree to Colorado courts' exercise of personal jurisdiction. The
Parties further agree that if they are unable to reach an agreement concerning
the nature and terms of alternative dispute resolution, any disputes relating to
this Agreement shall be brought in the District Court of the 20th Judicial
District, Boulder, Colorado, and they hereby consent to the jurisdiction of such
Court.
(f) ENTIRE AGREEMENT. This Agreement together with Attachment
A and B hereto set forth the entire agreement and understanding of the parties
hereto with regard to the employment of Executive by the Company and supersedes
any and all prior agreements, arrangements and understandings, written or oral,
pertaining to the subject matter hereof. No representation, promise or
inducement relating to the subject matter hereof has been made to a party that
is not embodied in these Agreements, and no party shall be bound by or liable
for any alleged representation, promise or inducement not so set forth.
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IN WITNESS WHEREOF, the Parties have each duly executed this
Employment Agreement as of the day and year first above written.
PHARMION CORPORATION
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By:
Its:
EXECUTIVE
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