Exhibit 10.01
EMPLOYMENT AGREEMENT
FOR THE PRESIDENT and CHIEF EXECUTIVE OFFICER OF
LIFELINE THERAPEUTICS, INC.
This AGREEMENT, dated as of October 12, 2004, by and between LIFELINE
THERAPEUTICS, INC., a Colorado corporation, referred to herein as the
"Company"), and Xxxxxxx Xxxxxxxx presently residing in Denver, Colorado
("Executive").
WITNESSETH:
WHEREAS, Company hires Executive as the President and Chief Executive
Officer of the Company;
WHEREAS, the Board of Directors ("Board") recognizes that the Executive
will contribute significantly to the growth and success of the Company;
WHEREAS, the Board desires the attention and dedication of the Executive as
a member of the Company's management, and has determined it is in the best
interest of the Company to employ Executive; and
WHEREAS, the Executive is willing to commit himself to serving the Company,
on the terms and conditions herein provided.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and obligations hereinafter set forth, the parties hereto hereby agree as
follows:
1. Employment. The Company hereby agrees to employ the Executive as the
President and Chief Executive Officer of the Company during the Employment
Term (as defined in Section 3), and the Executive hereby accepts such
employment and agrees to serve the Company subject to the general
supervision, advice and direction of the Board of Directors and upon the
terms and conditions set forth in this Agreement.
2. Duties. During the Employment Term, the Executive shall be the President
and Chief Executive Officer of the Company with such authority and duties
as is customary for the officer of a corporation in such position, and
shall perform such other services and duties as the Board may from time to
time designate consistent with such position, including, without
limitation, the right to hire and fire employees of the Company, including
officers. The Executive shall devote his full time, best efforts and
undivided attention to the business and affairs of the Company except for
vacations, personal time to which he is entitled pursuant to the terms of
this Agreement and except for illness or incapacity; provided, however,
that the Executive may serve, or continue to serve, on the boards of
directors of, and hold any other offices or positions in, companies or
organizations which, in such Board's judgment, will not present any
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conflict of interest with the Company, or materially affect the performance
of the Executive's duties pursuant to this Agreement as long as the
Executive discloses in writing each such position to the Board.
3. Employment Term.
(a) The Executive shall be employed under this Agreement for a term (the
"Employment Term") commencing on October 16, 2004 ("Commencement
Date") and terminating on the close of business on April 15, 2005,
unless sooner terminated as provided in Section 6 hereof; provided
that upon expiration of the initial term on April 15, 2005, this
Agreement shall thereafter automatically be renewed from year to year
(or such shorter period until the Executive's retirement) unless
either party provides written notification to the other of its
intention not to so renew which notice must be given no later than
April 30 of each such year. Neither the expiration of this Agreement,
its termination by reason of the Executive's retirement, nor the
giving of notice by the Company that it does not wish to renew the
Employment Term shall constitute a breach of this Agreement or
termination of the Executive for the purposes of Section 6 or 7 of
this Agreement.
(b) Notwithstanding the provisions of Section 3(a), the Employment Term
shall be extended automatically for a period of two years from the
month in which a Change of Control (as such term is hereafter defined)
occurs (or such shorter period ending on the Executive's retirement).
(c) The date on which the Employment Term (including any one year renewal
period then in effect) is scheduled to terminate under Sections 3(a)
or 3(b) shall hereinafter be referred to as the "Scheduled Termination
Date".
(d) If there is a Change in Control then the Executive's monthly salary
shall be accelerated and paid within thirty (30) days of said Change
of Control for the full amount due through the termination date of
said employment agreement according to the terms set forth in 3(b)
above.
4. Compensation.
(a) Base Salary. The Company shall pay the Executive an annual base salary
as compensation for his services hereunder of $180,000 ("Base
Salary"), payable in equal semi-monthly installments in accordance
with the ordinary payroll practices of the Company for management
employees.
(b) Supplemental or Incentive Compensation. During the Employment Term,
the Executive may receive supplemental or incentive compensation based
on the criteria the Board deems appropriate consistent with the
Company's strategic plan. Any supplemental or incentive compensation
shall be paid in cash.
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(c) Additional Benefits. During the Employment Term, the Executive shall
be entitled to paid time off (PTO) and to participate in any employee
benefit plans, including any incentive plans, any pension or group
life health, hospitalization, short-term disability and other
disability insurance plans and other employee welfare benefits made
available generally to management employees of the Company.
5. Reimbursement of Expenses. In addition to the compensation provided for
under Section 4 of this Agreement, upon submission of proper vouchers and
in accordance with the policies and procedures established by the Company
in effect from time to time, the Company shall pay or reimburse the
Executive for all normal and reasonable expenses, including travel
expenses, incurred by the Executive during the Employment Term in
connection with the Executive's responsibilities to the Company.
6. Termination. Notwithstanding Section 3 hereof, the Employment Term shall
terminate prior to the Scheduled Termination Date upon the occurrence of
any of the following events:
(a) Death. The Employment Term shall terminate upon the death of the
Executive.
(b) Disability. The Employment Term shall terminate as a result of the
Executive's Permanent Disability (as such term is defined in Section
6(f)).
(c) Termination Without Cause. The Employment Term shall terminate upon
the Executive's Termination Without Cause (as such term is defined in
Section 6(f)).
(d) Termination By Executive. The Employment Term shall terminate upon a
Voluntary Termination (as such term is defined in Section 6(f)) by the
Executive of his employment hereunder with the Company.
(e) Termination For Cause. The Employment Term shall terminate upon the
Executive's Termination For Cause (as defined in Section 6(f)).
(f) Definitions. For purposes of this Agreement:
(i) "Permanent Disability" shall mean that by reason of a physical or
mental disability or infirmity which has continued for a period
of at least six months, the Executive is unable substantially to
perform the duties contemplated by this Agreement on a regular
basis. The determination of Permanent Disability shall be made by
a medical board certified physician mutually acceptable to the
Company and the Executive (or the Executive's legal
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representative, if one has been appointed). The Executive agrees
to submit such medical evidence regarding such disability or
infirmity as is reasonably requested by the Company.
(ii) "Termination For Cause" shall mean any termination of the
employment of the Executive for "Cause." For purposes of this
Agreement, the termination of the Executive's employment shall be
deemed to have been for Cause only:
(A) if termination of his employment shall have been the result
of the Executive's willful engaging in dishonest, unethical,
illegal or fraudulent actions resulting or intended to
result directly or indirectly in any demonstrable material
harm to the Company or its shareholders, or
(B) if there has been a willful and continued failure by the
Executive during the Employment Term (except by reason of
incapacity due to physical or mental illness) to comply with
the provisions of this Agreement, and the Executive shall
have either failed to remedy such alleged breach within ten
days from his receipt of written notice from the Company
demanding that he remedy such alleged breach or shall have
failed to take all reasonable steps to that end during such
ten day period and thereafter; or
(C) if the Executive has failed to comply with the provisions of
this Agreement on two or more prior occasions, even if the
Executive remedied the conduct as provided in Section
6(f)(ii)(B); or
(D) if there has been a breach of fiduciary duty involving
personal profit to the Executive; provided that there shall
have been delivered to the Executive at least ten days prior
to the effective date of Termination for Cause a Notice of
Termination (as defined in this Section 6(f)) and a
certified copy of a resolution of the Board adopted by the
affirmative vote of not less than a majority of the entire
membership of the Board (other than the Executive if he is a
member of the Board at such time) at a meeting called and
held for that purpose and at which the Executive was given
an opportunity, together with the Executive's counsel, to be
heard, finding that the Executive had engaged in conduct set
forth in subsection (A), (B), (C) or (D) above based on
reasonable evidence, specifying the particulars thereof in
detail.
If the Executive's employment shall be terminated by the
Company during the Employment Term for Cause, the Executive
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shall have the right to contest such termination only in
accordance with the rules set forth in Section 14 of this
Agreement.
(iii) "Voluntary Termination" shall mean any voluntary termination by
the Executive of his employment with the Company or termination
as a result of retirement at or after age 65.
(iv) "Termination Without Cause" shall mean any termination of the
employment of the Executive by the Company other than Voluntary
Termination, Termination For Cause or upon death, or Permanent
Disability. Termination Without Cause pursuant to the preceding
sentence may occur only upon the affirmative vote of at least a
majority of the entire membership of the Board (not counting the
Executive, who may not vote if he is then a member of the Board)
at a meeting called and held for that purpose.
(v) Any termination of the Executive's employment by the Company or
by the Executive (other than termination pursuant to Section
6(a)) shall be communicated by written "Notice of Termination" to
the other party to this Agreement. For purposes of this
Agreement, a "Notice of Termination" shall mean a notice which
shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail
the facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so
indicated.
(vi) The "Date of Termination" shall mean (A) if the Executive is
terminated by his death, the date of his death, (B) if the
Executive's employment is terminated due to a Permanent
Disability, 30 days after Notice of Termination is given, (C) if
the Executive's employment is terminated pursuant to a
Termination For Cause, the date specified in the Notice of
Termination, (D) if the Executive's employment is terminated due
to his retirement, the date specified in the Notice of
Termination and (E) if the Executive's employment is terminated
for any other reason, the date specified in the Notice of
Termination.
7. Termination Benefits.
(a) Death. If the Executive's employment is terminated by his death, the
Company shall pay to his surviving spouse, or if he leaves no spouse,
to his estate, any compensation, pro rata incentive compensation, and
benefits earned by the Executive or vested under Section 4 of this
Agreement through the Executive's Date of Termination; provided,
however, that no death benefits attributable to a period after the
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Scheduled Termination Date in effect at the time of the Executive's
death shall be payable.
(b) Permanent Disability. If the Executive's employment is terminated as a
result of his Permanent Disability, the Company shall pay the
Executive through the Executive's Date of Termination, any
compensation and benefits earned or vested by the Executive under
Section 4 of this Agreement; provided, however, that no payments shall
be made under this Section 7(b) following the Scheduled Termination
Date in effect at the time of the Executive's Permanent Disability.
Further, if the Executive receives disability benefits under any
disability plan paid for by the Company, including disability
insurance, the amount otherwise payable by the Company to the
Executive shall be reduced (but not below zero) by the amount of such
disability benefits received by him. To the extent permitted under the
life, medical, dental and disability plans then maintained by the
Company for similarly situated active management employees, at the
Executive's option and expense, the Company shall cause to be
continued benefits under such plans to the Executive at coverage not
less than the coverage maintained by the Company for the Executive
immediately prior to the Permanent Disability, which shall run
concurrently with the Executive's COBRA period. Such coverage shall
cease upon the earlier of (i) in the case of medical and dental
benefits, the expiration of the Executive's COBRA rights, (ii) the
Executive's death, or (iii) the Executive's full-time employment by
another employer.
(c) Termination For Cause or Voluntary Termination. In the case of a
termination of the Executive pursuant to Section 6(f)(ii) or Section
6(f)(iii) of this Agreement, the Company's obligations to the
Executive shall cease the day after the Executive's Date of
Termination and the Company shall not be liable to pay the Executive's
Base Salary or supplemental compensation nor shall the Executive have
any rights to further participate in employee benefit plans of the
Company pursuant to Section 4, except the Executive shall be entitled
to any rights or benefits that have become vested prior to the Date of
Termination (unless the plan pursuant to which such benefits are
provided states to the contrary). The Company shall pay the Executive
his Base Salary and any other compensation or benefits earned or
vested through the Date of Termination at the rate in effect at the
time the Notice of Termination is given in a lump sum within thirty
(30) days of the Date of Termination.
(d) Termination Without Cause or Termination With Good Reason. If during
the Employment Term, the Executive shall be terminated from employment
based on a Termination Without Cause or Termination With Good Reason
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as defined in Section 8(c) of the Agreement, the Executive shall be
entitled to receive the following payments and benefits:
(i) Salary. In the event of any termination under this Section 7(d),
the Executive's Base Salary earned through the Date of
Termination at the rate in effect at the time the Notice of
Termination is given.
(ii) Severance Payment. In the event of any termination under this
Section 7(d), in lieu of any further payments to the Executive
including any payments to which the Executive would be entitled
under any severance plan or arrangement of the Company, the
Company shall pay as severance pay to the Executive an amount
equal to two times the Executive's Base Salary but not less than
the amount due during the remaining term of the Agreement. Such
payments are payable in a single sum, within 30 days following
the Executive's Termination Date. Notwithstanding the foregoing,
in lieu of such severance, at the option of the Company, the
Company and the Executive may enter into a written consulting
agreement pursuant to which, for services rendered by the
Executive, the Executive would receive consideration in an amount
equal to the severance payment otherwise to be made pursuant to
this Section 7(d)(ii).
(iii) Release. The payments provided under this Section 7(d) upon
termination shall be in lieu of any other payments or causes of
action available to the Executive pursuant to this Agreement. As
a condition to receipt of payments under Section 7(d) of this
Agreement, the Executive shall execute a Release and Settlement
Agreement acceptable to the Company, pursuant to which the
Executive shall waive any and all claims resulting from
employment at or termination from the Company other than payments
or benefits which are expressly provided for in this Agreement.
(e) Retirement. The Executive shall not be entitled to any Severance
Payment pursuant to this Section 7 in the event that this Agreement is
terminated prior to its Scheduled Termination Date or as of any
Scheduled Termination Date due to the Executive's retirement.
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8. Change of Control.
(a) No benefit shall be payable under this Section 8 unless there shall
have been a Change of Control of the Company. (b) For purposes of this
Agreement, a Change of Control of the Company ("Change of Control")
shall be deemed to have occurred if the event set forth in any one of
the following paragraphs shall have occurred:
(i) there is consummated a merger, consolidation or other
reorganization of the Company with any other for- or non-profit
corporation; or
(ii) the Board of Trustees of the Company approve a plan of complete
liquidation or dissolution of the Company or there is consummated
an agreement for the sale or disposition by the Company of all or
substantially all of the Company's assets; or
(iii) a merger of Company in which Company does not survive (other
than a merger with a subsidiary of which Company had control for
more than six months prior to the merger), or consolidation of
Company through a change of its members or any other transaction
after which a third party has the right to appoint a majority of
the Board of Trustees of Company.
(c) Good Reason. For purposes of Section 7 and this Section 8 of the
Agreement, Good Reason shall mean the occurrence (without the
Executive's written consent) after any Change of Control or within 90
days prior to a Change of Control of any one of the following acts by
the Company, or failures by the Company to act, unless, such act or
failure to act is corrected prior to the Date of Termination specified
in the Notice of Termination given in respect thereof.
(i) (1) the assignment to the Executive of any duties inconsistent
with the Executive's positions, duties, responsibilities and
status with the Company immediately prior to the Change of
Control; (2) a significant adverse alteration in the nature of
the Executive's reporting responsibilities, titles, or offices as
in effect immediately prior to the Change of Control; (3) the
removal of the Executive from, or any failure to reelect the
Executive to, any such position, except in connection with a
termination of the employment of the Executive due to a Voluntary
Termination, Termination For Cause, or upon death or Permanent
Disability; or (4) any significant diminution in the Executive's
Base Salary from that immediately before the Change of Control,
as the case may be; or
(ii) the requirement by the Company that the Executive's principal
place of employment be relocated more than 45 miles from his
existing place of employment; or
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(iii) the Company's failure to obtain a satisfactory agreement from
any successor to assume and agree to perform this Agreement, as
contemplated in Section 12(a) of this Agreement.
(iv) the failure by the Company to continue in effect any compensation
plan in which the Executive participated immediately prior to the
Change of Control, as the case may be, which is material to the
Executive's total compensation, unless an arrangement (embodied
in an ongoing substitute or alternative plan) has been made with
respect to such plan, or the failure by the Company to continue
the Executive's participation therein (or in such substitute or
alternative plan) on a basis not materially less favorable, both
in terms of the amount of benefits provided and the level of the
Executive's participation relative to other participants, as
existed at the time of the Change of Control; or
(v) the failure by the Company to continue to provide the Executive
with benefits substantially similar to those enjoyed by the
Executive under any of the Company's pension, life insurance,
medical, health and accident, or disability plans in which the
Executive was participating at the time of the Change of Control
or the taking of any action by the Company that would directly or
indirectly materially reduce any of such benefits enjoyed by the
Executive at the time of the Change of Control.
(f) If, within 90 days prior to the Change of Control, the Executive's
employment with the Company (i) is terminated by the Company for any
reason other than Death, Disability, Cause or retirement or (ii) is
terminated by the Executive for Good Reason, the Executive shall
receive the compensation otherwise payable to the Executive pursuant
to Section 7(d).
9. Protected Information; Prohibited Competition.
(a) The Executive recognizes and acknowledges that during the course of
the Executive's employment by the Company, the Company has disclosed
and shall furnish, disclose or make available to the Executive
confidential or proprietary information related to the Company's
business, including, without limitation, customer lists, ideas,
processes, inventions and devices, that such confidential or
proprietary information has been developed and will be developed
through the expenditure by the Company of substantial time and money
and that all such confidential information could be used by the
Executive and others to compete with the Company. The Executive agrees
that all such confidential or proprietary information shall constitute
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trade secrets, and further agrees to use such confidential or
proprietary information only for the purpose of carrying out his
duties with the Company and not otherwise to disclose such
information. For purposes of this Agreement, information shall be
deemed confidential notwithstanding any prior unauthorized disclosure
by any person. The obligations imposed by this Section 9(a) shall not
apply to any information that: (a) was known to Executive prior
Executive's employment by the Company; or (b) is now or becomes
generally known or available to the public through no act of the
Executive.
(b) The Executive agrees that during his employment and for a period of
two years following the termination of his employment under Section 6
(except for Termination With Good Reason or Termination Without
Cause):
(i) he will not (except on behalf of or with the prior written
consent of the Company) within any geographic area in which the
Company is located or does business or the Executive knows the
Company intends to do business, either directly or indirectly,
consult with, manage, own, operate, control or participate in or
be employed by any entity that competes with the Company
("Competing Business") or any entity planning to engage in a
business that would compete with the Company; and
(ii) he will not (except on behalf of or with the prior written
consent of the Company), either directly or indirectly, on his
own behalf or in the service or on behalf of any third person,
solicit, divert or appropriate to any Competing Business or
attempt to solicit, divert or appropriate to any Competing
Business any business from any customer or client or actively
sought prospective customer or client of the Company or any of
its subsidiaries with whom the Executive has dealt, whose
dealings with the Company have been supervised by the Executive
or about whom the Executive has acquired proprietary information
during the course of his employment with the Company; and
(iii) he will not (except on behalf of or with the prior written
consent of the Company), either directly or indirectly, on his
own behalf or in the service or on behalf of any third person,
solicit, divert or hire away, or attempt to solicit, divert or
hire away, any person employed by the Company or any of its
subsidiaries with whom the Executive had regular contact in the
course of his employment with the Company, whether or not such
employee is a full-time or a temporary employee, whether or not
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such employment is pursuant to a written agreement and whether or
not such employment is for a specified period or at will.
(c) Service by the Executive on the Board of Directors of any
not-for-profit or for-profit organization shall not be deemed a
violation of this Section 9(b).
(d) The restrictions in this Section 9 shall survive the termination of
this Agreement and shall be in addition to any restrictions imposed on
the Executive by statute or at common law.
10. Inventions.
(a) The Executive agrees that all Subject Inventions (defined below in
this Section 10) conceived or first practiced by the Executive during
his employment by the Company, and all patent rights and copyrights to
the Subject Inventions are or shall become the property of the Company
immediately upon such conception or practice, and the Executive hereby
irrevocably assigns to the Company all of the Executive's rights to
all Subject Inventions.
(b) The Executive agrees that if he conceives an Invention during his
employment and there is a reasonable basis to believe that the
Invention is a Subject Invention, the Executive will promptly provide
a written description of the Invention to the Company adequate to
allow evaluation for a determination as to whether the Invention is a
Subject Invention. It is agreed that all notebooks maintained by the
Executive relating (directly or indirectly) to Subject Inventions and
written disclosures are the property of the Company.
(c) If, upon commencement of the Executive's employment with the Company,
the Executive has previously conceived any Invention or acquired any
ownership interest in any Invention, which: (i) is the Executive's
property, or of which the Executive is a joint owner with another
person or company; (ii) is not described in any issued patent as of
the commencement of the Executive's employment with Company; and (iii)
would be a Subject Invention if such Invention was made while a
Company employee; then the Executive must, at the Executive's
election, either: (A) provide the Company with a written description
of the Invention on Exhibit A hereto, in which case no rights to the
Invention shall become the property of the Company; or (B) provide the
Company with the license described in Section 10(d) of this Agreement.
(d) If the Executive has previously conceived or acquired any ownership
interest in an Invention described above in Section 10(c) and the
Executive elects not to disclose the same to the Company as provided
above, then the Executive hereby grants to the Company an irrevocable
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nonexclusive, paid up, royalty-free license to use and practice the
Invention, including a license under all patents to issue in any
country which pertain to the Invention.
(e) The Executive owns no patents, individually or jointly with others,
except those described on Exhibit B hereto.
(f) Definitions.
(i) "Invention" means any discovery, whether or not patentable,
including, but not limited to, any useful process, method,
formula, technique, machine, manufacture or composition of
matter, as well as improvements thereto, which is new or which
the Executive has a reasonable basis to believe may be new.
(ii) "Proprietary Information" means (i) information related to the
Company or its subsidiaries (A) which derives economic value,
actual or potential, from not being generally known to or readily
ascertainable by other persons who can obtain economic value from
its disclosure or use; and (B) which is the subject of efforts
that are reasonable under the circumstances to maintain its
secrecy and (ii) all tangible reproductions of the information.
Proprietary Information includes, but is not limited to,
technical and nontechnical data related to the formulas,
patterns, designs, compilations, programs, Inventions, methods,
techniques, drawings, processes, finances, actual or potential
customers and suppliers, existing and future products, and
employees of the Company or its subsidiaries. Proprietary
Information also includes information which has been disclosed to
the Company or its subsidiaries by a third party and which the
Company or any of its subsidiaries is obligated to treat as
confidential.
(iii) "Subject Invention" means any Invention that is conceived by the
Executive, alone or in a joint effort with others, during the
Executive's employment by the Company which (i) may be reasonably
expected to be used in a product of the Company, or a product
similar to a Company product, (ii) results from work that the
Executive has been assigned as part of his duties as an employee
of the Company, (iii) is in an area of technology which is the
same or substantially related to the areas of technology with
which the Executive is involved in the performance of his duties
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as an employee of the Company, or (iv) is useful, or which the
Executive reasonably expects may be useful, in any process or
product of the Company.
11. Patent Applications.
(a) The Executive agrees that should the Company elect to file an
application for patent protection, either in the United States or in
any foreign country on a Subject Invention of which the Executive was
an inventor, the Executive will execute all necessary documentation
relating to the patent applications, including formal assignments to
the Company.
(b) The Executive further agrees that he will cooperate with attorneys or
other persons designated by the Company by explaining the nature of
any Subject Invention for which the Company elects to file an
application for patent protection, reviewing applications and other
papers and providing any other cooperation reasonably required for
orderly prosecution of such patent applications. The Company will be
responsible for all expenses incurred for the preparation and
prosecution of all patent applications on Subject Inventions assigned
to the Company.
12. Copyrights.
(a) The Executive agrees that any Works (defined below in this Section 12)
created by the Executive in the course of the Executive's duties as an
employee of the Company are subject to the "Work for Hire" provisions
contained in Sections 101 and 201 of the United States Copyright Law,
Title 17 of the United States Code. To the extent such Works are not
governed by the foregoing, the Executive hereby irrevocably assigns to
the Company all of the Executive's rights to all Works.
(b) The Executive must disclose to the Company all Works referred to in
Section 12(a) and shall execute and deliver all applications,
registrations and documents relating to the copyrights to the Works
and shall provide assistance to secure the Company's title to the
copyrights in the Works. The Company shall be responsible for all
expenses incurred in connection with the registration of all such
copyrights.
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(c) The Executive claims no ownership rights in any Works, either
individually or jointly with others, except those described on Exhibit
C hereto.
(d) "Work" means a copyrightable work of authorship, including, without
limitation, any technical descriptions for products, users guides,
illustrations, advertising materials, computer programs (including the
contents of read only memories) and any contribution to such
materials.
13. Indemnification. The Company shall indemnify the Executive to the fullest
extent permitted by the Colorado Business Corporation Act.
14. Injunctive Relief. The Executive expressly acknowledges that any breach or
threatened breach by the Executive of any of the terms set forth in
Sections 9, 10, 11 and 12 of this Agreement may result in significant and
continuing injury to the Company, the monetary value of which would be
impossible to establish. Therefore, the Executive agrees that,
notwithstanding any provision in Section 18 of this Agreement to the
contrary, the Company shall be entitled to seek injunctive relief from a
court of appropriate jurisdiction without the posting of a bond or other
security in the event of any breach or threatened breach of the terms of
either of such sections. Nothing in this Agreement will be construed as
prohibiting the Company from pursuing any other remedies available to the
Company for such breach or threatened breach, including the recovery of
damages from the Executive. The provisions of this Section 14 shall survive
the termination of this Agreement.
15. Successors; Binding Agreement.
(a) The Company shall require any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, by
agreement in form and substance satisfactory to the Executive, to
expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to
perform this Agreement if no such succession had taken place. Failure
of the Company to obtain such agreement prior to or on the effective
date of any such succession shall be a breach of this Agreement and
shall entitle the Executive to compensation from the Company in the
same amount and on the same terms as he would be entitled to receive
hereunder if he terminated his employment for Good Reason, except that
for purposes of implementing the foregoing, the date on which any such
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succession becomes effective shall be deemed the Date of Termination.
As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets
as aforesaid, which successor executes and delivers the agreement
provided for in this Section 15 or which otherwise becomes bound by
all the terms and provisions of this Agreement by operation of law.
(b) This Agreement and all rights of the Executive under this Agreement
shall inure to the benefit of and be enforceable by the Executive's
personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If the
Executive should die after the Termination Date but before all amounts
payable to him under this Agreement have been paid, all such amounts,
unless otherwise provided herein, shall be paid in accordance with the
terms of this Agreement to the Executive's devisee, legatee, or other
designee or, if there be no such designee, to the Executive's estate.
16. Notices. Any notice required or permitted by this Agreement shall be in
writing, sent by registered or certified mail, return receipt requested,
addressed to the Board and the Company at the Company's then principal
office, or to the Executive at the address set forth beneath his signature,
as the case may be, or to such other address or addresses as any party
hereto may from time to time specify in writing in a notice given to the
other parties in compliance with this Section 14. Notices shall be deemed
given when received or, if sent by registered or certified mail, three
business days after such notice was placed in the mail, correctly addressed
with postage prepaid, whichever is earlier.
17. Disputes. Any claim, controversy or dispute arising out of or relating to
this Agreement (including employment of Executive), or the breach,
performance, termination, enforceability or validity thereof including the
determination of the scope or applicability of this agreement to arbitrate,
shall be determined by arbitration pursuant to this Section 17 if good
faith negotiations among the parties do not resolve such claim, dispute or
controversy within 60 days after such claim is presented in writing to
Company. Such arbitration shall be conducted in Denver, Colorado, and shall
proceed in accordance with the Employment Arbitration Rules of the American
Arbitration Association then in effect, to the extent that such Arbitration
Rules are not inconsistent with the provisions of this Agreement; provided,
however, that such Arbitration Rules may be modified as shall be required
to provide procedural fairness mandated by state or federal law in a
proceeding involving arbitration of claims arising under federal or state
civil rights statutes. Such arbitration shall be heard by one arbitrator,
who, unless otherwise agreed to by the parties, shall be an impartial
attorney at law who has had training and experience as an arbitrator and
who has practiced law for at least 15 years as an attorney concentrating in
either general litigation or employment matters. If the parties to the
dispute are unable to agree on the selection of an arbitrator, the parties
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shall alternately strike arbitrators from a panel of arbitrators provided
by the American Arbitration Association until a sole arbitrator is
selected. Reasonable discovery shall be allowed in the arbitration and each
party may be represented by counsel. The arbitrator shall base his award on
applicable law and judicial precedent and include in such award a written
statement of the reasons upon which the award is based, including findings
of fact and conclusions of law. The arbitrator may award any remedies
allowed by law if liability and damages are proven. The award rendered by
the arbitrator shall be final and binding, and judgment may be entered in
accordance with applicable law in any court having jurisdiction thereof.
The costs and fees in the arbitration shall be shared equally by the
parties to the arbitration, except as expressly required otherwise under
the applicable federal or state civil rights statutes in any proceeding
arising thereunder. Notwithstanding anything to the contrary contained in
this Section 17, but without limiting the power of the arbitrator to grant
similar remedies that may be requested by a party in a dispute, Company
shall have the right to proceed in any court of proper jurisdiction to
obtain injunctive relief as provided in Section 14 of this Agreement.
18. Nonalienation of Benefits. Except in so far as this provision may be
contrary to applicable law, no sale, transfer, alienation, assignment,
pledge, collateralization or attachment of any benefits under this
Agreement shall be valid or recognized by the Company.
19. ERISA. This Agreement is an unfunded compensation arrangement for a member
of a select group of the Company's management and any exemptions under
ERISA, as applicable to such an arrangement, shall be applicable to this
Agreement.
20. Reporting and Disclosure. The Company, from time to time, shall provide
government agencies with such reports concerning this Agreement as may be
required by law, and the Company shall provide the Executive with such
disclosure concerning this Agreement as may be required by law or as the
Company may deem appropriate.
21. Effect on Prior Agreements and Existing Benefits Plans. This Agreement
contains the entire agreement of the parties relating to the subject matter
hereof and supersedes any prior written or oral agreements or
understandings relating to the subject matter hereof.
22. Modification and Waiver. No modification or amendment of this Agreement
shall be valid unless in writing and signed by or on behalf of the parties
to this Agreement. A waiver of the breach of any term or condition of this
Agreement shall not be deemed to constitute a waiver of any subsequent
breach of the same or any other term or condition.
23. Severability. This Agreement is intended to be performed in accordance
with, and only to the extent permitted by, all applicable laws, ordinances,
rules and regulations. If any provision of this Agreement, or the
application thereof to any person or circumstance, shall, for any reason
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and to any extent, be held invalid or unenforceable, such provision shall
be modified to the extent necessary to make such provision fully
enforceable. To the extent modification will not remedy such invalidity or
unenforceability, such provision shall be stricken from this Agreement and
shall not affect the remaining provisions hereof and the application of
such provisions to other persons or circumstances, all of which shall be
enforced to the greatest extent permitted by law.
24. Withholding. The compensation provided to the Executive pursuant to this
Agreement shall be subject to any withholdings and deductions required by
any applicable tax laws. In the event the Company fails to withhold such
sums for any reason, it may require the Executive to promptly remit to the
Company sufficient cash to satisfy applicable income and employment
withholding taxes.
25. Headings. The headings in this Agreement are inserted for convenience of
reference only and shall not be a part of or control or affect the meaning
of any provision hereof.
26. Consult With Attorney. The Executive has had an opportunity to consult with
an attorney of his choosing prior to executing this Agreement. The
Executive acknowledges and agrees that Xxxxx, Figa & Will, P.C. has not
provided any legal, tax, or other advice to the employee with respect to
this Agreement.
27. Governing Law. To the extent not governed by Federal law, this Agreement
shall be governed by and construed and enforced in accordance with the laws
of the State of Colorado.
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IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement as of the day and year first above written.
LIFELINE THERAPEUTICS, INC.
COMPANY
By:
----------------------------
Title:
-------------------------
EXECUTIVE
tax id number:
------------------------- ------------------------
Address:
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