Employment Agreement - CancerVax Corp. and David F. Hale
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of the
23rd day of October 2000 by and between CancerVax Corporation, a Delaware
corporation (the "Company"), and David F. Hale ("Executive").
WHEREAS, the Company desires to employ Executive, and Executive desires
to be employed by the Company, on the terms and subject to the conditions set
forth herein; and
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties agree as follows:
1. Employment. The Company hereby employs Executive as Chief
Executive Officer of the Company, and, effective as of the closing of the
Company's Series A Preferred Stock financing round (the "Closing") as Chief
Executive Officer and President of the Company, and Executive hereby accepts
such employment, on the terms and subject to the conditions hereinafter set
forth.
2. Term. Subject to the provisions for termination hereinafter
provided, the term of this Agreement (the "Term") shall begin on October 23,
2000 and shall continue through the fifth anniversary of the date hereof or as
long as Executive and Board shall otherwise mutually agree.
3. Duties and Responsibilities. Prior to the Closing, Executive
shall serve as Chief Executive Officer of the Company and a member of the Board
of Directors (the "Board") and following the Closing, Executive shall serve as
President and Chief Executive Officer of the Company and a member of the Board.
In this position, Executive shall report directly to the Board. Executive agrees
to perform such duties as are consistent with his position subject to the
direction of the Board. Executive shall be required to devote substantially all
of his business time, attention and effort to the Company's business and affairs
and perform diligently his duties hereunder, all subject to the direction of the
Board, together with such other duties as may be reasonably requested from time
to time by the Board. Subject to the terms of the Employee Invention Assignment
and Confidentiality Agreement referred to in Section 7, this shall not preclude
Executive from serving on community and civic boards or the corporate boards on
which Executive currently serves, or participating in industry associations,
provided such activities do not unreasonably interfere with his duties to the
Company. Executive agrees that he will not join any additional boards, either
community, civic or industry, without the prior approval of the Board.
Executive's primary place of work shall be the Company's facility (to be
identified) in Carlsbad, California, or such other location within San Diego
County as may be designated by the Board from time to time. Executive shall also
render services at such other places within or
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outside the United States as the Board may direct from time to time, however,
Executive's primary place of work shall not be relocated more than fifty (50)
miles from the Carlsbad, California area without Executive's prior consent.
4. Support Services. Executive shall be entitled to all of the
administrative, operational and facility support customary for a similarly
situated executive. This support shall include an executive assistant.
5. Compensation. The Company shall pay or provide, as the case
may be, to the Executive the compensation and other benefits and rights set
forth in this Section 5.
(a) The Company shall pay to Executive a minimum "Base
Salary," payable in accordance with the Company's usual pay practices (and in
any event no less frequently than monthly), of $350,000 per annum, which Base
Salary shall be subject to increase upon review annually by and at the sole
discretion of the Compensation Committee of the Board and as approved by the
Board.
(b) (i) During the period from now through December
31, 2001, the Executive shall receive a special one time Bonus (each a "Special
Bonus") if certain achievements are met. If, prior to December 31, 2001, the
Executive completes a corporate partnership which will result in payments of $30
million or more to the Company, then upon execution of the definitive
agreement(s) for such corporate partnership, the Executive will receive a
Special Bonus of $50,000. If, prior to December 31, 2001, the Executive leads
the Company to an Initial Public Offering (IPO), of the Company's common stock
and, in connection therewith, all of the Company's Series A Preferred Stock is
converted into common stock (whether pursuant to an automatic conversion or
otherwise), the Executive will receive a Special Bonus of $100,000. If both
achievements are met prior to December 31, 2001, the Executive will receive both
Special Bonuses.
(ii) Executive shall participate in any
Management Incentive Compensation Plan hereafter adopted by the Company and, if
such plan is adopted, Executive shall be paid an annual bonus in accordance with
the terms of such plan as determined by the Compensation Committee of the Board
and as approved by the Board. Any such Management Incentive Compensation Plan
shall incorporate the goals of the Company for each year, which goals must be
approved by the Board.
(c) Executive shall be entitled to participate in all
life insurance, medical insurance, disability insurance, retirement and other
benefit plans of the Company generally available from time to time to employees
of the Company and for which Executive qualifies under the terms thereof.
Notwithstanding the foregoing, nothing contained herein shall obligate the
Company to continue any insurance and/or benefit plan which it now maintains or
hereafter establishes, except for the insurance policies referred to in the
following sentence. In addition, the Company will pay the annual premiums on
Executive's disability insurance policies currently in effect from New York Life
and Paul Revere and the $1 million
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whole life insurance policy from Connecticut Mutual Life Insurance Company (now
Mass Mutual) naming Executive's trust as the beneficiary.
(d) Executive shall be entitled to payments of or
reimbursement for reasonable business entertainment expenses and any and all
other business expenses reasonably incurred on behalf of or in the course of
performing duties for the Company, all in accordance with the expense
reimbursement policies established from time to time by the Company. In
addition, the Company shall pay for the lease of an automobile for Executive's
use in the performance of his services hereunder, up to $1,000 per month. The
Company will reimburse Executive for reasonable gas and maintenance expenses
incurred in the performance of his services hereunder. Executive agrees to
provide such documentation of these expenses as may be reasonably required.
(e) Executive shall be entitled to such periods of
vacation and sick leave allowance each year as provided under the Company's
vacation and sick leave policy and as otherwise provided for executive officers,
but in no event shall Executive be entitled to less than four weeks vacation.
(f) Executive shall be entitled to participate in any
equity or other employee benefit plan that is generally available to senior
executive officers, as distinguished from general management, of the Company.
Executive's participation in and benefits under any such plan shall be on the
terms and subject to the conditions specified in the governing document of the
particular plan.
(g) (i) The Company shall grant to Executive an option
(the "Option") to acquire up to that number of shares of the Company's common
stock equal to 5% of the Company's common stock outstanding (on an as converted
basis) immediately after the Closing (including, for these purposes, the
Company's option pool of 5,174,082 shares of common stock) (the "Option
Shares"), subject to the terms of the stock option agreement relating thereto.
The Option shall be granted pursuant to the Company's 2000 Stock Incentive Plan
(the "Plan"). The Plan is pending adoption and approval by the Company's Board
and stockholders, and therefore, no option can be granted until such approvals
have been obtained. A copy of the proposed Plan has been provided to Executive.
The Option shall vest as to 25% of the Option Shares per year in equal daily
installments during the four (4) years following September 1, 2000. In addition
to any accelerated vesting provisions under the Plan, (A) if, within six (6)
months following a Corporate Transaction (as defined in the Plan), the Company
terminates this Agreement without Cause (as defined in Section 6) or for
Executive's death or Permanent Disability or Executive terminates this Agreement
for Good Reason, then 100% of the then-unvested portion of the Option shall
accelerate, vest and become exercisable, (B) upon the date which is six (6)
months following a Corporate Transaction, 100% of the then unvested portion of
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the Option shall accelerate, vest and become exercisable, (C) if, during the
first year of the Term, Executive's employment is terminated by the Company
without Cause or by Executive for Good Reason, then upon such termination date,
that portion of the Option shall accelerate, vest and become exercisable, which
would have vested if Executive had remained employed for the entire first year
of the Term (taking into account all vesting which occurred before such
termination date), (D) if, following the first year of the Term, Executive's
employment is terminated by the Company without Cause or by Executive for Good
Reason, then upon such termination date, that portion of the Option shall
accelerate, vest and become exercisable which would have vested if Executive had
remained employed for an additional period of six (6) months following the
termination date (without regard to any other vesting acceleration triggers) or
such longer period as the Company and Executive may mutually agree, and (E) upon
any termination of Executive's employment for Permanent Disability (as defined
in Section 6), that portion of the Option shall accelerate, vest and become
exercisable which would have vested if Executive had remained employed for an
additional period of twelve (12) months following the termination date (without
regard to any other vesting acceleration triggers). The exercise price per share
of the Option shall be equal to $0.245 per share subject to approval of the
Board. The exercise period for the Option shall continue for one (1) year
following any termination of Executive's employment, regardless of the grounds
for such termination.
(ii) Subject to the terms of the Plan, the
related option grant documents authorized by the Board and the provisions set
forth in paragraph (i) above, the Option may be exercised at any time or from
time to time during the ten year period following the date of grant. Executive
shall not have any of the rights of a shareholder of the Company with respect to
any unexercised portion of the Option.
(h) Pursuant to a form of promissory note to be mutually
agreed upon by the parties, the Company shall loan to Executive the amount of
$166,000, at an annual interest rate equal to the prime rate as published weekly
in the Barron's Report. Interest shall be payable under the promissory note at
least annually and the entire principal amount and any accrued but unpaid
interest shall be due and payable on or before the fifth anniversary of the
loan. The promissory note shall be secured by a pledge of any and all shares of
Series A Preferred Stock of the Company now held or hereafter acquired by
Executive.
6. Termination.
(a) Executive's employment under this Agreement and the
Term shall be terminated immediately on the death of Executive and may be
terminated by Executive for "Good Reason" (as defined below). Executive's
employment under this Agreement and the Term may be terminated by the Company as
follows:
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(i) at any time after the "Permanent Disability"
(as defined below) of Executive;
(ii) at any time for "Cause (as defined below) by
action of the Board; or
(iii) at any time without Cause by action of the
Board.
For purposes hereof, "Cause" shall mean:
(A) A willful act by Executive which
constitutes misconduct, fraud or a breach of the duty of
loyalty to the Company and which is injurious to the Company;
provided, however, that no act, or failure to act, by
Executive shall be considered "willful" unless committed
without good faith and without a reasonable belief that the
act or omission was in the Company's best interest;
(B) Conviction of, or a plea of
"guilty" or "no contest" to, a felony;
(C) Executive's continuing repeated
willful failure or refusal to perform Executive's duties as
required by this Agreement as a result of chronic alcoholism
or drug addiction and/or as a result of any knowing or
intentional failure to comply with any laws, rules or
regulations of any governmental entity with respect to
Executive's employment by the Company;
(D) Executive's breach of any provision
of this Agreement, which breach has not been cured (if it is
of a nature that can be cured) to the Board's reasonable
satisfaction within ten (10) days after the Company gives
written notice thereof to Executive; or
(E) Executive's breach of any provision
of the Employee Confidentiality and Invention Assignment
Agreement.
For purposes hereof, Executive's "Permanent Disability" shall be deemed
to have occurred one day after one hundred fifty (150) days in the aggregate
during any consecutive twelve (12) month period, during which one hundred fifty
(150) days, Executive, by reason of his physical or mental disability or
illness, shall have been able to discharge fully his duties under this
Agreement.
For purposes hereof, "Good Reason" shall mean (i) a termination by
Executive within ninety (90) days following the relocation of the office of
Executive more than fifty (50) miles from the Carlsbad, California area (unless
such relocation is consented to by Executive), (ii) Executive has been demoted
or has incurred a material reduction in his authority or responsibility as an
employee of the Company, including (without limitation) a reduction or
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elimination of his authority to approve expenditures or to hire, promote, demote
or terminate subordinates, (iii) Executive has incurred a reduction in his total
compensation (including benefits) as an employee of the Company, other than
pursuant to a Company-wide reduction of total compensation (including benefits)
for employees of the Company generally; (iv) Executive has not received a
contemporaneous increase in his total compensation (including benefits) which is
commensurate with increases in total compensation (including benefits) received
by a majority of executive-level employees of the Company with duties and
responsibilities substantially comparable to those of the Executive; or (v)
Executive has earned, but has not been paid, a bonus for any period under any
Management Incentive Compensation Plan adopted by the Company, but a majority of
executive-level employees of the Company with duties and responsibilities
substantially comparable to those of Executive have been paid bonuses for such
period under such Management Incentive Compensation Plan.
(b) Termination by Death. If Executive's employment is
terminated by death, Executive's estate shall be entitled to receive (i)
compensation equal to what would have been his Base Salary under Section 5(a)
for one (1) year, payable at such times as his Base Salary would have been paid
if his employment had not been terminated, (ii) an amount equal to the full
prior year's bonus, if any, under the Company's Management Incentive
Compensation Plan, (iii) any earned but unpaid Special Bonuses if Executive's
death occurs prior to December 31, 2001, so long as the relevant milestones
identified in Section 5(b)(i) have been achieved and (iv) life insurance
benefits pursuant to any life insurance purchased by the Company for the benefit
of Executive and the life insurance policy referred to in Section 5(c) above.
Subject to Section 3(g)(i), if Executive's employment is terminated by death,
the provisions of the Plan regarding the exercisability of the Option upon the
death of the optionee shall apply.
(c) Termination for Cause. If Executive's employment is
terminated by the Company for Cause, the Company shall not have any other or
further obligations to Executive under this Agreement except (i) as to that
portion of any unpaid Base Salary, any bonus earned but not paid and other
benefits accrued and earned under this Agreement through the date of such
termination, and (ii) as may be provided in accordance with the terms of
retirement and other benefit plans pursuant to Section 5(c), including, without
limitation, any COBRA or similar continuation of benefits required by law . In
addition, if Executive's employment is terminated by the Company for Cause, all
vesting of Executive's unvested stock rights and stock options and such other
unvested incentives or awards previously granted to him by the Company,
including, without limitation, the Option to be granted to Executive pursuant to
Section 5(g) shall cease and none of such unvested rights shall be exercisable
following the date of such termination. The foregoing shall be in addition to,
and not in lieu of, any and all other rights and remedies which may be available
to the Company under the circumstances, whether at law or in equity.
(d) Termination without Cause or for Good Reason. If
Executive's employment is terminated by the Company without Cause or by
Executive for Good Reason,
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Executive shall be entitled to receive (i) severance compensation equal to what
would have been his Base Salary under Section 5(a), payable at such times as his
Base Salary would have been paid if his employment had not been terminated, for
twelve (12) months and an annual bonus equal to the average of the prior annual
bonuses paid hereunder (disregarding any year when no bonus was paid and
disregarding any Special Bonuses paid); provided that, if the termination occurs
in 2001, then, in lieu of such annual bonus, the Special Bonuses shall be paid
so long as the achievements described in Section 5(b)(ii) are met by the
relevant deadlines in Section 5(b)(ii), (ii) other benefits accrued by him
hereunder up to and including the date of such termination, payable within
ninety (90) days after the date of such termination, and (iii) the benefits set
forth in Section 5(c) for a period of twelve (12) months or the remainder of
what would have been the Term.
(e) Termination for Permanent Disability. If Executive's
employment is terminated by the Company for Permanent Disability, Executive
shall be entitled to receive (i) severance compensation equal to what would have
been his Base Salary under Section 5(a) for twelve (12) months, payable at such
times as his Base Salary would have been paid if his employment had not been
terminated, and (ii) one year's annual bonus calculated in the same manner as
paragraph (d) above. In addition, for a period of twelve (12) months following
the date of such termination, the Company shall continue to pay to Executive all
medical benefits pursuant to any plans and programs in which Executive was
entitled to participate immediately prior to the date of termination as if
Executive were still employed pursuant hereto.
7. Confidential Information: Non-Competition.
Executive acknowledges the Company's reliance on and
expectation of Executive's continued commitment to performance of his duties and
responsibilities during the Term. In light of such reliance and expectation on
the part of the Company, and for other good reasons, Executive and the Company
will enter into the Company's standard employee confidentiality and invention
assignment agreement (the "Employee Confidentiality and Invention Assignment
Agreement"), dated the date hereof. Executive agrees to perform each and every
obligation of Executive therein contained.
8. Insurance. The Company shall have the right to take out life,
health, accident, "key-man" or other insurance covering Executive, in the name
of the Company and at the Company's expense in any amount deemed appropriate by
the Company. Executive shall assist the Company in obtaining such insurance,
including, without limitation, submitting to any required examinations and
providing information and data required by insurance companies.
9. Miscellaneous.
(a) Executive represents and warrants that he is not a
party to any agreement, contract or understanding, whether employment or
otherwise, which would restrict
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or prohibit him from undertaking or performing employment in accordance with the
terms and conditions of this Agreement.
(b) The provisions of this Agreement are severable and if
any one or more provisions may be determined to be illegal or otherwise
unenforceable, in whole or in part, the remaining provision and any partially
unenforceable provision to the extent enforceable in any jurisdiction
nevertheless shall be binding and enforceable.
(c) The rights and obligations of the Company under this
Agreement shall inure to the benefit of, and shall be binding on, the Company
and its successors and assigns, and the rights and obligations (other than
obligations to perform services) of Executive under this Agreement shall inure
to the benefit of, and shall be binding upon, Executive and his heirs, personal
representatives and assigns.
(d) All notices and other communications required or
permitted under this Agreement shall be in writing, and shall be deemed properly
given if delivered personally, mailed by registered or certified mail in the
United States mail, postage prepaid, return receipt requests, sent by facsimile,
or sent by Express Mail, Federal Express or other nationally recognized express
delivery service, as follows:
If to the Company or the Board:
CancerVax Corporation
P.O. Box 1089
Pacific Palisades, California 90270
Attention: Chairman of the Board
If to Executive:
David F. Hale
Post Office Box 8925
16596 Via Lago Azul
Rancho Santa Fe, California 92067
Notice given by hand, certified or registered mail, or by Express Mail,
Federal Express or other such express delivery service, shall be effective upon
actual receipt. Notice given by facsimile transmission shall be effective upon
actual receipt if received during the recipient's normal business hours, or at
the beginning of the recipient's next business day after receipt if not received
during the recipient's normal business hours. All notices by facsimile
transmission shall be confirmed promptly after transmission in writing by
certified mail or personal delivery.
Any party may change any address in which notice is to be given to it
by giving notice as provided above of such change of address.
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(e) The failure of either party to enforce any provisions
of this Agreement shall not in any way be construed as a waiver of any such
provision or provisions as to any future violations thereof, nor prevent that
party thereafter from enforcing each and every other provision of this
Agreement. The rights granted the parties herein are cumulative and the waiver
of any single remedy shall not constitute a waiver of such party's right to
assert all other legal remedies available to it under the circumstances.
(f) This Agreement supersedes all prior or
contemporaneous agreements and understandings between the parties and may not be
modified or terminated orally. No modifications or attempted waiver shall be
valid unless in writing and signed by the party against whom the same is sought
to be enforced.
(g) This Agreement shall be governed by, and construed in
accordance with the provisions of the law of California, without regard to the
conflict of laws principles thereof.
(h) All payments required to be made by the Company
hereunder to Executive shall be subject to the withholding of such amounts
relating to taxes and other government assessments as the Company may reasonably
determine it should withhold pursuant to any applicable law, rule or
regulations.
(i) Captions and section headings used herein are for
convenience and are not a party of this Agreement and shall not be used in
construing it.
(j) This Agreement may be executed in counterparts, each
of which shall constitute an original and all of which shall constitute one and
the same instrument.
(k) Except as otherwise provided in this Agreement, any
controversy or claim arising out of or relating to this Agreement, or the breach
thereof, or Executive's employment with the Company, shall be settled by
arbitration in San Diego, California in accordance with the Commercial
Arbitration Rules of the American Arbitration Association. Discovery shall be
permitted to the same extent as in a proceeding under the Federal Rules of Civil
Procedure, including (without limitation) such discovery as is specifically
authorized by section 1283.05 of the California Code of Civil Procedure, without
need of prior leave of the arbitrator under section 1283.05(e) of such Code. The
arbitrator shall issue a written arbitration award that sets forth the essential
findings and conclusions on which the award is based and such award shall be
subject to judicial review sufficient to ensure that the arbitrator complies
with applicable law. Judgment on the award rendered by the arbitrator may be
entered in any court having jurisdiction thereof. All fees and expenses of the
arbitrator and such Association shall be paid by the Company.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first set forth above.
CANCERVAX CORPORATION
By: /s/ Donald L. Morton
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Donald L. Morton,
Chairman of the Board
/s/ David F. Hale
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David F. Hale