Employment Agreement - CancerVax Corp. and Martin A. Mattingly
Subject to Approval by CancerVax Board of Directors
CONFIDENTIAL
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is effective as of the
Service Commencement Date (as defined in Section 1, below), between CancerVax
Corporation, a Delaware corporation (the "Company"), and MARTIN A. MATTINGLY, an
individual ("Executive"), with reference to the following:
RECITALS
WHEREAS, the Company has agreed to employ Executive and Executive has
agreed to accept such employment on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the various covenants and
agreements hereinafter set forth, the parties hereto agree as follows:
1. Term of Employment. The Company hereby employs Executive and
Executive accepts such employment commencing on May 15, 2003, or such other date
as Executive and Company may mutually agree upon in writing (the "Service
Commencement Date") and terminating on the fourth anniversary hereof, unless
sooner terminated as hereinafter provided.
2. Services to be Rendered.
2.1. Duties. Executive shall serve as Executive Vice
President, Marketing and Business Development, of the Company, or in such other
capacity with the Company, any company into which the Company may be merged or
any present or future subsidiary of either of them, as the Board of Directors of
the Company (the "Board") or the Chief Executive Officer of the Company ("CEO")
may assign to Executive in connection with the business of the Company (the
"Company Business"). In the performance of such duties, Executive shall report
directly to the CEO and shall be subject to the direction of the CEO and to such
limits upon Executive's authority as the CEO may from time to time impose.
Executive hereby consents to serve as an officer and/or director of the Company
or any subsidiary or affiliate thereof without any additional salary or
compensation, if so requested by the Board. Executive shall be employed by the
Company on a full time basis. Executive's place of work shall be at the
Corporation's headquarters in Carlsbad, CA or such other location within San
Diego County, as may be designated by the CEO from time to time. However,
Executive shall also render services at such other place or places within or
without the United States as the CEO may direct from time to time. Executive
shall be subject to the policies and procedures generally applicable to senior
executives of the Company to the extent the same are not inconsistent with any
term of this Agreement.
2.2. Exclusive Services. Executive shall at all times
faithfully, industriously and to the best of his ability, experience and talent
perform to the satisfaction of the Board and the CEO all of the duties that may
be assigned to Executive hereunder and, except as set forth in Section 2.1,
shall devote all of his productive time and efforts to the
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performance of such duties. Executive may devote time to personal and family
investments to the extent that the time so spent does not conflict with the
Company Business. The existence of such a conflict shall be determined in good
faith by the Board.
3. Compensation and Benefits. The Company shall pay the following
compensation and benefits to Executive during the term hereof, and Executive
shall accept the same as payment in full for all services rendered by Executive
to or for the benefit of the Company:
3.1. Salary. The Company shall pay to Executive an
annualized salary ("Base Salary") of Two Hundred Sixty Thousand Dollars
($260,000.00). Thereafter, annual salary reviews will occur every February 1.
The Base Salary shall accrue in equal monthly installments in arrears and shall
be payable in accordance with the payroll practices of the Company in effect
from time to time. The Executive's first ninety (90) days of employment with
CancerVax Corporation are considered an Introductory Period. Completion of the
Introductory Period does not guarantee continued employment for any specified
period of time, nor does it require that a dismissal be based on cause.
3.2. Bonus. Executive shall be eligible to participate in
the CancerVax Corporation Management Incentive Compensation Plan, as approved by
the Company's Board of Directors from time to time, or in such other bonus plan
as the Board of Directors may approve for the Senior Executives of the
Corporation.
3.3. Fringe Benefits. Executive shall be entitled to
participate in benefits under the Company's benefit plans and arrangements,
including, without limitation, any employee benefit plan or arrangement made
available in the future by the Company to its senior executives, subject to and
on a basis consistent with the terms, conditions and overall administration of
such plans and arrangements. The Company shall have the right to amend or delete
any such benefit plan or arrangement made available by the Company to its senior
executives and not otherwise specifically provided for herein.
3.4. Expenses. The Company shall reimburse Executive for
reasonable out-of-pocket expenses incurred in connection with the Company
Business and the performance of his duties hereunder, subject to (i) such
policies as the Company may from time to time establish, (ii) Executive
furnishing the Company with evidence in the form of receipts satisfactory to the
Company substantiating the claimed expenditures, (iii) Executive receiving
advance approval from the CEO in the case of expenses for travel outside of
North America and (iv) Executive receiving advance approval from the CEO in case
of expenses (or a series of related expenses) in excess of $5,000. It is agreed
that the Company shall reimburse Executive for reasonable legal fees he actually
incurs in connection with the review of these employment arrangements in an
amount not to exceed Two Thousand Dollars ($2,000.00). Executive shall provide
evidence reasonably satisfactory to the Company of all such legal fees.
3.5. Vacation. Executive shall be entitled to the number
of paid vacation days, but not less than twenty (20) days, in each calendar year
determined by the Company
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from time to time for its senior executive officers. Executive shall also be
entitled to all paid holidays given to the Company's senior executive officers.
3.6. Stock Options. Subject to the approval of the
Company's Board of Directors or its Compensation Committee, Executive shall be
granted an option to purchase Four Hundred Thousand (400,000) shares of the
Company's common stock. The exercise price per share shall be equal to the fair
market value per share on the date the option is granted or on Executive's first
day of service, whichever is later (the "Grant Date"). The option shall be
subject to the terms and conditions applicable to options granted under the
Company's 2000 Stock Incentive Plan (the "Plan"), as amended, as described in
such Plan and the applicable stock option agreement, the form of which is
attached to this Agreement as Exhibit A. Executive shall vest in Twenty-five
Thousand shares (25,000) upon the Grant Date, and the balance of the shares
(Three Hundred Seventy-five Thousand (375,000) shares) shall vest in monthly
installments over the forty-eight (48) months of service following such date, as
described in the applicable stock option agreement. In addition to any
accelerated vesting provisions under the Plan, (a) upon a Corporate Transaction
(as defined in the Plan), 50% of the then unvested portion of the Option shall
accelerate, vest and become exercisable and (b) upon any termination by the
Company of Executive's employment under this Agreement for Company Convenience
as defined in Section 7.3, or by the Executive following a Corporate Transaction
for Good Reason (as such terms are defined in the Plan), the number of stock
options shall vest upon the effective date of such termination which would have
vested if Executive had remained employed during the Severance Period described
in Section 7.4 (without regard to any other vesting acceleration triggers). The
exercise price of the Option shall be equal to the fair market value of the
Company's common stock as determined by the Board at the time of grant.
3.7. Withholding and other Deductions. All compensation
payable to Executive hereunder shall be subject to such deductions as the
Company is from time to time required to make pursuant to law, governmental
regulation or order.
4. Representations and Warranties.
Executive represents and warrants to the Company that (a) Executive is
under no contractual or other restriction or obligation which is inconsistent
with the execution of this Agreement, the performance of his duties hereunder,
or the other rights of the Company hereunder and (b) Executive is under no
physical or mental disability that would hinder the performance of his duties
under this Agreement.
The Company represents and warrants that, following the approval of
this Agreement by its Board: (a) it is fully authorized to enter into this
Agreement and to perform its obligations under it; (b) the execution and
delivery of this Agreement by it does not violate any applicable law,
regulation, order, judgment or decree or any agreement, plan or corporate
governance document to which it is a party or by which it is bound; and (c) upon
the execution and delivery of this Agreement by both parties hereto, this
Agreement shall be a valid and binding obligation of the Company, enforceable
against it in accordance with its
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terms, except to the extent that enforceability may be limited by applicable
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally.
5. Certain Covenants.
5.1. Non-competition. Except as may otherwise be approved
by the Board, during the term of this Agreement, Executive shall not have any
ownership interest (of record or beneficial) in, or have any interest as an
employee, salesman, consultant, officer or director in, or otherwise aid or
assist in any manner, any firm, corporation, partnership, proprietorship or
other business that engages in any county, city or part thereof in the United
States and/or any foreign country in a business which competes directly or
indirectly (as determined by the Board) with the Company's business in such
county, city or part thereof, so long as the Company, or any successor in
interest of the Company to the business and goodwill of the Company, remains
engaged in such business in such county, city or part thereof or continues to
solicit customers or potential customers therein; provided, however, that
Executive may own, directly or indirectly, solely as an investment, securities
of any entity which are traded on any national securities exchange if Executive
(a) is not a controlling person of, or a member of a group which controls, such
entity; or (b) does not, directly or indirectly, own one percent (1%) or more of
any class of securities of any such entity.
5.2. Trade Secrets. Executive acknowledges that the nature
of Executive's engagement by the Company is such that Executive will have access
to Confidential Information (defined below) which has great value to the Company
and that except for Executive's engagement by the Company, Executive would not
otherwise have access to the Confidential Information. During the term of this
Agreement and at all times thereafter, Executive shall keep all of the
Confidential Information in confidence and shall not disclose any of the same to
any other person, except: (a) as necessary in the performance of his services
under this Agreement, provided that any such disclosures shall be in accordance
with the Company's policies and procedures; (b) to the Company's personnel
entitled thereto; and (c) to other persons designated in writing by the Company.
Executive shall not cause, suffer or permit the Confidential Information to be
used for the gain or benefit of any party outside of the Company or for
Executive's personal gain or benefit outside the scope of Executive's engagement
by the Company. Executive shall sign the Company's standard form of invention
assignment and confidentiality agreement upon the Company's request. Anything
herein to the contrary notwithstanding, Executive may disclose Confidential
Information if required to do so by legal process or in a judicial or
administrative proceeding, provided that Executive shall give reasonable advance
notice to the Company of such disclosure requirement so that the Company may
seek a protective order and or other appropriate remedy or waive compliance with
the confidentiality provisions of this Agreement, and will cooperate fully with
the Company's reasonable efforts to secure confidential treatment of such
Confidential Information required to be disclosed.
5.3. Solicitation of Employees. Executive shall not during
the term hereof and for the one year period following any expiration or
termination hereof (the "Restricted
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Period"), directly or indirectly, hire, solicit or encourage to leave the
employment of the Company or any of its affiliates, any employee of the Company
or any of its affiliates or hire any such employee who has left the employment
of the Company or any of its affiliates within one year of the termination of
such employee's employment with the Company or any of its affiliates.
5.4. Solicitation of Consultants. Executive shall not
during the Restricted Period, directly or indirectly, hire, solicit or encourage
to cease work with the Company or any of its affiliates any consultant then
under contract with the Company or any of its affiliates within one year of the
termination of such consultant's engagement by the Company or any of its
affiliates.
5.5. Rights and Remedies Upon Breach. If Executive
breaches or threatens to commit a breach of any of the provisions of this
Section 5 (the "Restrictive Covenants"), the Company shall have the following
rights and remedies, each of which rights and remedies shall be independent of
the other and severally enforceable, and all of which rights and remedies shall
be in addition to, and not in lieu of, any other rights and remedies available
to the Company under law or in equity:
(i) Specific Performance. The right and remedy
to have the Restrictive Covenants specifically enforced by any court having
equity jurisdiction, all without the need to post a bond or any other security
or to prove any amount of actual damage or that money damages would not provide
an adequate remedy, it being acknowledged and agreed that any such breach or
threatened breach will cause irreparable injury to the Company and that money
damages will not provide adequate remedy to the Company; and
(ii) Accounting and Indemnification. The right
and remedy to require Executive (i) to account for and pay over to the Company
all compensation, profits, monies, accruals, increments or other benefits
derived or received by Executive or any associated party deriving such benefits
as a result of any such breach of the Restrictive Covenants; and (ii) to
indemnify the Company against any other losses, damages (including special and
consequential damages), costs and expenses, including actual attorneys' fees and
court costs, which may be incurred by them and which result from or arise out of
any such breach or threatened breach of the Restrictive Covenants.
5.6. Severability of Covenants/Blue Pencilling. If any
court determines that any of the Restrictive Covenants, or any part thereof, is
invalid or unenforceable, the remainder of the Restrictive Covenants shall not
thereby be affected and shall be given full effect, without regard to the
invalid portions. If any court determines that any of the Restrictive Covenants,
or any part thereof, are unenforceable because of the duration of such provision
or the area covered thereby, such court shall have the power to reduce the
duration or area of such provision and, in its reduced form, such provision
shall then be enforceable and shall be enforced. Executive hereby waives any and
all right to attack the validity of the
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Subject to Approval by the Board of Directors
Restrictive Covenants on the grounds of the breadth of their geographic scope or
the length of their term.
5.7. Enforceability in Jurisdictions. The Company and
Executive intend to and do hereby confer jurisdiction to enforce the Restrictive
Covenants upon the courts of any jurisdiction within the geographical scope of
such covenants. If the courts of any one or more of such jurisdictions hold the
Restrictive Covenants wholly unenforceable by reason of the breadth of such
scope or otherwise, it is the intention of the Company and Executive that such
determination not bar or in any way affect the right of the Company to the
relief provided above in the courts of any other jurisdiction within the
geographical scope of such covenants, as to breaches of such covenants in such
other respective jurisdictions, such covenants as they relate to each
jurisdiction being, for this purpose, severable into diverse and independent
covenants.
5.8. Definitions.
(i) The term "Company", as used in Sections 5.1
- 5.7, means not only CancerVax Corporation, but also any company, partnership
or entity which, directly or indirectly, controls, is controlled by or is under
common control with CancerVax Corporation.
(ii) The term "Confidential Information", as used
herein, means all information or material not generally known by non-Company
personnel which (i) gives the Company some competitive business advantage or the
opportunity of obtaining such advantage or the disclosure of which could be
detrimental to the interests of the Company; (ii) which is owned by the Company
or in which the Company has an interest and (iii) which is either (A) marked
"Confidential Information," "Proprietary Information" or other similar marking,
(B) known by Executive to be considered confidential and proprietary by the
Company or (C) from all the relevant circumstances should reasonably be assumed
by Executive to be confidential and proprietary to the Company. Confidential
Information includes, but is not limited to, the following types of information
and other information of a similar nature (whether or not reduced to writing):
trade secrets, inventions, drawings, file data, documentation, diagrams,
specifications, know how, processes, formulas, models, flow charts, software in
various stages of development, source codes, object codes, research and
development procedures, research or development and test results, marketing
techniques and materials, marketing and development plans, price lists, pricing
policies, business plans, information relating to customers and/or suppliers'
identities, characteristics and agreements, financial information and
projections, and Executive files. Confidential Information also includes any
information described above which the Company obtains from another party and
which the Company treats as proprietary or designates as Confidential
Information, whether or not owned or developed by the Company. NOTWITHSTANDING
THE ABOVE, HOWEVER, NO INFORMATION CONSTITUTES CONFIDENTIAL INFORMATION IF IT IS
GENERIC INFORMATION OR GENERAL KNOWLEDGE WHICH COVENANTOR WOULD HAVE LEARNED IN
THE COURSE OF SIMILAR
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EMPLOYMENT ELSEWHERE IN THE TRADE OR IF IT IS OTHERWISE PUBLICLY KNOWN AND IN
THE PUBLIC DOMAIN.
6. 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.
7. Termination.
7.1. Death or Total Disability of Executive. If Executive
dies or becomes totally disabled during the term of this Agreement, Executive's
employment hereunder shall automatically terminate. For these purposes,
Executive shall be deemed totally disabled if Executive shall become physically
or mentally incapacitated or disabled or otherwise unable fully to discharge
Executive's duties hereunder for a period of ninety (90) consecutive calendar
days or for 120 calendar days in any 180 calendar-day period.
7.2. Termination for Good Cause. Executive's employment
hereunder may be terminated by the Company for "good cause." The term "good
cause" is defined as any one or more of the following occurrences:
(i) Executive's breach of any of the covenants
contained in Section 5 of this Agreement;
(ii) Executive's conviction by, or entry of a
plea of guilty or nolo contendere in, a court of competent and final
jurisdiction for any crime involving moral turpitude or punishable by
imprisonment in the jurisdiction involved;
(iii) Executive's commission of an act of fraud,
whether prior to or subsequent to the date hereof upon the Company;
(iv) Executive's continuing repeated willful
failure or refusal to perform Executive's duties as required by this Agreement
(including, without limitation, Executive's inability to perform Executive's
duties hereunder as a result of chronic alcoholism or drug addiction and/or as a
result of any failure to comply with any laws, rules or regulations of any
governmental entity with respect to Executive's employment by the Company);
(v) Executive's gross negligence,
insubordination or material violation of any duty of loyalty to the Company or
any other material misconduct on the part of Executive;
(vi) Executive's commission of any act which is
detrimental to the Company's business or goodwill; or
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Subject to Approval by the Board of Directors
(vii) Executive's breach of any other provision of
this Agreement, provided that termination of Executive's employment pursuant to
this subsection (vii) shall not constitute valid termination for good cause
unless Executive shall have first received written notice from the Board stating
with specificity the nature of such breach and affording Executive at least
fifteen (15) days to correct the breach alleged.
7.3. Company Convenience or Good Reason. The Company may
terminate Executive's employment at any time and without cause and for any
reason or for no reason at the Company's sole discretion ("Company
Convenience"), effective five (5) days after notice to Executive. Executive may
terminate his employment at any time with or without Good Reason (as such term
is defined in the Plan).
7.4. Severance Compensation. Upon the occurrence of any of
the events referred to in Sections 7.1 and 7.2 above, Executive (or Executive's
heirs or representatives) shall be entitled to receive only such portion (if
any) of the Base Salary as may theretofore have accrued but be unpaid on the
date on which the termination shall take effect. Upon the termination of
Executive's employment for Company Convenience, or upon Executive's termination
of his employment with the Company following a Corporate Transaction for Good
Reason (as such terms are defined in the Plan), the Company shall continue to
pay to Executive, as severance pay, Executive's Base Salary as provided in
Section 3.1 above, for a period of 12 months after the effective date of such
termination and a bonus equal to the average of the prior annual bonuses paid in
accordance with the CancerVax Corporation Management Incentive Compensation Plan
(disregarding any year when no bonus was paid), if any.
7.5. Return of the Company's Property. If this Agreement
is terminated for any of the foregoing reasons, the Company shall have the
right, at its option, to require Executive to vacate his offices prior to the
effective date of termination and to cease all activities on the Company's
behalf. Upon the termination of his employment in any manner, Executive shall
immediately surrender to the Company all lists, books and records of, or in
connection with, the Company's business, and all other property belonging to the
Company, it being distinctly understood that all such lists, books and records,
and other documents, are the property of the Company.
7.6. Waiver of the Company's Liability. Executive
recognizes that this Agreement is subject to termination with or without cause
for any reason and therefore Executive agrees that Executive shall hold the
Company harmless from and against any and all liabilities, losses, damages,
costs and expenses, including but not limited to, court costs and reasonable
attorneys' fees, which Executive may incur as a result of the termination of
this Agreement. Executive further agrees that Executive shall bring no claim or
cause of action against the Company for damages or injunctive relieve based on a
wrongful termination of employment. Executive agrees that the sole liability of
the Company to Executive upon termination of this Agreement shall be that
determined by Section 7.4 herein. In the event this covenant is more restrictive
than permitted by laws of the jurisdiction in
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which the Company seeks enforcement thereof, this covenant shall be limited to
the extent permitted by law.
8. Arbitration. Except as provided in Section 5.7, any claim or
controversy arising out of or relating to this Agreement shall be settled by
arbitration in San Diego, California, in accordance with the Commercial
Arbitration Rules of the American Arbitration Association, and judgment on the
award rendered by the arbitrator may be entered in any court having
jurisdiction. Each party shall select one arbitrator and the two arbitrators so
chosen will select a third arbitrator who shall act as the sole arbitrator of
any dispute. Each party shall pay the fees of its own attorneys, the expenses of
its witnesses and all other expenses connected with presenting its case. Other
costs of the arbitration, including the cost of any record or transcripts of the
arbitration, administrative fees, the fee of the sole arbitrator, and all other
fees and costs, shall be borne by the Company.
9. General Relationship. Executive shall be considered an employee of
the Company within the meaning of all federal, state and local laws and
regulations including, but not limited to, laws and regulations governing
unemployment insurance, workers' compensation, industrial accident, labor and
taxes.
10. Miscellaneous.
10.1. Modification; Prior Claims. This Agreement sets forth
the entire understanding of the parties with respect to the subject matter
hereof, and supersedes all existing agreements between them concerning such
subject matter including, without limitation, the offer letter to Executive from
the Company dated as of February 28, 2003, and may be modified only by a written
instrument duly executed by each party. Notwithstanding the foregoing, the
Confidential Disclosure Agreement executed between the parties as of April ___,
2003 (the "CDA"), shall remain in full force and effect and shall govern with
respect to all disclosures of Confidential Information (as such term is defined
in the CDA) from the Company to Executive prior to the Service Commencement
Date.
10.2. Assignment. The rights of the Company under this
Agreement may, without the consent of Executive, be assigned by the Company, in
its sole and unfettered discretion, to any person, firm, corporation or other
business entity which at any time, whether by purchase, merger or otherwise,
directly or indirectly, acquires all or substantially all of the assets or
business of the Company.
10.3. Survival. The covenants, agreements, representations
and warranties contained in or made in Sections 3.7, 5.2, 5.3, 5.4, 5.5, 5.6,
5.7, 5.8, 7.4, 7.5, 7.6, 8 and 10 of this Agreement shall survive any
termination of Executive's employment.
10.4. Third-Party Beneficiaries. This Agreement does not
create, and shall not be construed as creating, any rights enforceable by any
person not a party to this Agreement.
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Subject to Approval by the Board of Directors
10.5. Waiver. The failure of either party hereto at any
time to enforce performance by the other party of any provision of this
Agreement shall in no way affect such party's rights thereafter to enforce the
same, nor shall the waiver by either party of any breach of any provision hereof
be deemed to be a waiver by such party of any other breach of the same or any
other provision hereof.
10.6. Hiring At Will. Any continuance of Executive's
employment by the Company after the term hereof shall be deemed a hiring at will
(unless such continuance is the subject of a new written agreement) and shall be
subject to termination with or without cause by either party upon delivery of
notice thereof.
10.7. Section Headings. The headings of the several
sections in this Agreement are inserted solely for the convenience of the
parties and are not a part of and are not intended to govern, limit or aid in
the construction of any term or provision hereof.
10.8. Notices. All notices, requests and other
communications hereunder shall be in writing and shall be delivered by courier
or other means of personal service (including by means of a nationally
recognized courier service or professional messenger service), or sent by telex
or telecopy or mailed first class, postage prepaid, by certified mail, return
receipt requested, in all cases, addressed to:
Company:
CancerVax Corporation
2110 Rutherford Road
Carlsbad, CA 92008
Attention: Chief Executive Officer
Executive:
Martin A. Mattingly
13910 Rancho Solana Trail
San Diego, CA 92130
All notices, requests and other communications shall be deemed given on the date
of actual receipt or delivery as evidenced by written receipt, acknowledgement
or other evidence of actual receipt or delivery to the address. In case of
service by telecopy, a copy of such notice shall be personally delivered or sent
by registered or certified mail, in the manner set forth above, within three
business days thereafter. Any party hereto may from time to time by notice in
writing served as set forth above designate a different address or a different
or additional person to which all such notices or communications thereafter are
to be given.
10.9. Severability. All Sections, clauses and covenants
contained in this Agreement are severable, and in the event any of them shall be
held to be invalid by any court, this Agreement shall be interpreted as if such
invalid Sections, clauses or covenants were not contained herein.
10.10. Governing Law and Venue. This Agreement is to be
governed by and construed in accordance with the laws of the State of California
applicable to contracts made
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and to be performed wholly within such State, and without regard to the
conflicts of laws principles thereof. Except as provided in Sections 5.7 and 8,
any suit brought hereon shall be brought in the state or federal courts sitting
in Los Angeles, California, the parties hereto hereby waiving any claim or
defense that such forum is not convenient or proper. Each party hereby agrees
that any such court shall have in personam jurisdiction over it and consents to
service of process in any manner authorized by California law.
10.11. Non-transferability of Interest. None of the rights
of Executive to receive any form of compensation payable pursuant to this
Agreement shall be assignable or transferable except through a testamentary
disposition or by the laws of descent and distribution upon the death of
Executive. Any attempted assignment, transfer, conveyance, or other disposition
(other than as aforesaid) of any interest in the rights of Executive to receive
any form of compensation to be made by the Company pursuant to this Agreement
shall be void.
10.12. Attorneys' Fees. Subject to the provisions of Section
8 hereof with respect to arbitration, if any legal action, arbitration or other
proceeding is brought for the enforcement of this Agreement, or because of any
alleged dispute, breach, default or misrepresentation in connection with this
Agreement, the successful or prevailing party shall be entitled to recover
reasonable attorneys' fees and other costs it incurred in that action or
proceeding, in addition to any other relief to which it may be entitled.
10.13. Gender. Where the context so requires, the use of the
masculine gender shall include the feminine and/or neuter genders and the
singular shall include the plural, and vice versa, and the word "person" shall
include any corporation, firm, partnership or other form of association.
10.14. Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same Agreement.
10.15. Construction. The language in all parts of this
Agreement shall in all cases be construed simply, according to its fair meaning,
and not strictly for or against any of the parties hereto. Without limitation,
there shall be no presumption against any party on the ground that such party
was responsible for drafting this Agreement or any part thereof.
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Subject to Approval by the Board of Directors
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date hereinabove set forth.
THE COMPANY
CancerVax Corporation,
a Delaware corporation
By: /s/ David F. Hale
-------------------------
David F. Hale
Its: President and CEO
EXECUTIVE
/s/ Martin A. Mattingly
-------------------------
Martin A. Mattingly
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Subject to Approval by the Board of Directors
EXHIBIT A
FORM OF STOCK OPTION AGREEMENT
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DRAFT
CANCERVAX CORPORATION
SECOND AMENDED AND RESTATED 2000 STOCK INCENTIVE
PLAN
STOCK OPTION AGREEMENT
Pursuant to your Stock Option Grant Notice ("Grant Notice") and this
Stock Option Agreement, CancerVax Corporation has granted you an Option under
its Second Amended and Restated 2000 Stock Incentive Plan (the "Plan"), to
purchase the number of shares of the Company's Common Stock indicated in your
Grant Notice (the "Shares") at the exercise price indicated in your Grant
Notice. Capitalized terms not explicitly defined in this Stock Option Agreement
but defined in the Plan shall have the same definitions as in the Plan.
The details of the Option are as follows:
1. VESTING AND EXERCISABILITY. Subject to the limitations
contained herein, the Option will vest and become exercisable as provided in
your Grant Notice, provided that vesting will cease upon the termination of your
employment or service relationship with the Company or a Related Corporation and
the unvested portion of the Option will terminate.
2. SECURITIES LAW COMPLIANCE. Notwithstanding any other provision
of this Agreement, you may not exercise the Option unless the Shares issuable
upon exercise are registered under the Securities Act or, if such Shares are not
then so registered, the Company has determined that such exercise and issuance
would be exempt from the registration requirements of the Securities Act. The
exercise of the Option must also comply with other applicable laws and
regulations governing the Option, and you may not exercise the Option if the
Company determines that such exercise would not be in material compliance with
such laws and regulations.
3. INCENTIVE STOCK OPTION QUALIFICATION. If so designated in your
Grant Notice, all or a portion of the Option is intended to qualify as an
Incentive Stock Option under federal income tax law, but the Company does not
represent or guarantee that the Option qualifies as such.
If the Option has been designated as an Incentive Stock Option and the
aggregate Fair Market Value (determined as of the grant date) of the shares of
Common Stock subject to the portions of the Option and all other Incentive Stock
Options you hold that first become exercisable during any calendar year exceeds
$100,000, any excess portion will be treated as a Nonqualified Stock Option,
unless the Internal Revenue Service changes the rules and regulations governing
the $100,000 limit for Incentive Stock Options. A portion of the Option may be
treated as a Nonqualified Stock Option if certain events cause exercisability of
the Option to accelerate.
4. NOTICE OF DISQUALIFYING DISPOSITION. To the extent the Option
has been designated as an Incentive Stock Option, to obtain certain tax benefits
afforded to Incentive Stock Options you must hold the Shares issued upon the
exercise of the Option for two years
<PAGE>
after the Grant Date and one year after the date of exercise. You may be subject
to the alternative minimum tax at the time of exercise. You should obtain tax
advice when exercising the Option and prior to the disposition of the Shares. By
accepting the Option, you agree to promptly notify the Company if you dispose of
any of the Shares within one year from the date you exercise all or part of the
Option or within two years from the Grant Date.
5. METHOD OF EXERCISE. You may exercise the Option by giving
written notice to the Company, in form and substance satisfactory to the
Company, which will state your election to exercise the Option and the number of
Shares for which you are exercising the Option. The written notice must be
accompanied by full payment of the exercise price for the number of Shares you
are purchasing. Such payment must be paid in cash or by check (acceptable to the
Plan Administrator) or, unless the Plan Administrator in its sole discretion
determines otherwise, either at the time the Option is granted or at any time
before it is exercised, in any combination of:
(a) cash;
(b) check (acceptable to the Plan Administrator);
(c) tendering (either actually or, if the Common Stock is
registered under Section 12(b) or 12(g) of the Exchange Act, by attestation)
shares of Common Stock already owned by the Participant for at least six months
(or any shorter period necessary to avoid a charge to the Company's earnings for
financial reporting purposes) that on the day prior to the exercise date have a
Fair Market Value equal to the aggregate exercise price of the shares being
purchased under the Option;
(d) if the Common Stock is registered under Section 12(b)
or 12(g) of the Exchange Act, delivery of a properly executed exercise notice,
together with irrevocable instructions to a brokerage firm designated by the
Company to deliver promptly to the Company the aggregate amount of sale or loan
proceeds to pay the Option exercise price and any withholding tax obligations
that may arise in connection with the exercise, all in accordance with the
regulations of the Federal Reserve Board; or
(e) such other consideration as the Plan Administrator
may permit.
6. REPURCHASE AND FIRST REFUSAL RIGHTS. So long as the Common
Stock is not registered under the Exchange Act, the Company may, in its sole
discretion at the time of exercise, require you to sign a stock purchase
agreement, stockholders agreement and/or voting agreement, in the form to be
provided, pursuant to which you will agree that the Shares acquired by you upon
exercise of the Option will be subject to the Company's rights of first refusal,
repurchase rights, other transfer restrictions, certain voting restrictions or
other restrictions. Upon request to the Company, you may review a current form
of any of these agreements, as applicable, prior to exercise of the Option.
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7. MARKET STANDOFF. By exercising the Option you agree that the
Shares will be subject to the market standoff restrictions on transfer set forth
in the Plan.
8. TREATMENT UPON TERMINATION OF EMPLOYMENT OR SERVICE
RELATIONSHIP. The unvested portion of the Option will terminate automatically
and without further notice immediately upon termination of your employment or
service relationship with the Company or a Related Corporation for any reason
(the "Employment Termination Date"). You may exercise the vested portion of the
Option as follows:
(a) General Rule. Subject to clauses (b) and (c) below,
you must exercise the vested portion of the Option on or before the earlier
of (i) three months after your Employment Termination Date and (ii) the Option
Expiration Date;
(b) Retirement or Disability. If your employment or
service relationship terminates due to Retirement or Disability, you must
exercise the vested portion of the Option on or before the earlier of (i) one
year after your Employment Termination Date and (ii) the Option Expiration Date.
(c) Death. If your employment or service relationship
terminates due to your death, the vested portion of the Option must be exercised
on or before the earlier of (i) one year after your Employment Termination Date
and (ii) the Option Expiration Date. If you die after your Employment
Termination Date but while the Option is still exercisable, the vested portion
of the Option may be exercised until the earlier of (x) one year after the date
of death and (y) the Option Expiration Date; and
(d) Cause. The vested portion of the Option will
automatically expire at the time the Company first notifies you of the
termination of your employment or service relationship with the Company or a
Related Corporation for Cause, unless the Plan Administrator determines
otherwise. If your employment or service relationship is suspended pending an
investigation of whether you will be terminated for Cause, all your rights under
the Option likewise will be suspended during the period of investigation. If any
facts that would constitute termination for Cause are discovered after your
Employment Termination Date, any Option you then hold may be immediately
terminated by the Plan Administrator.
An Option designated as an Incentive Stock Option shall cease to
qualify for favorable tax treatment as an Incentive Stock Option to the extent
it is exercised (a) more than three months after the Employment Termination Date
if termination was for reasons other than death or disability (as defined in
Section 22(e)(3) of the Code), (b) more than one year after the Employment
Termination Date if termination was by reason of disability (as defined in
Section 22(e)(3) of the Code), or (c) after the Participant has been on leave of
absence for more than 90 days, unless the Participant's reemployment rights are
guaranteed by statute or contract.
IT IS YOUR RESPONSIBILITY TO BE AWARE OF THE DATE THE OPTION TERMINATES.
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<PAGE>
9. LIMITED TRANSFERABILITY. During your lifetime only you can
exercise the Option. The Option is not transferable except by will or by the
applicable laws of descent and distribution, except that Nonqualified Stock
Options may be transferred to the extent permitted by the Plan Administrator and
the Plan. The Plan provides for exercise of the Option by a designated
beneficiary or the personal representative of your estate.
10. WITHHOLDING TAXES. As a condition to the exercise of any
portion of an Option, you must make such arrangements as the Company may require
for the satisfaction of any federal, state, local or foreign withholding tax
obligations that may arise in connection with such exercise.
11. OPTION NOT AN EMPLOYMENT OR SERVICE CONTRACT. Nothing in the
Plan or any Award granted under the Plan will be deemed to constitute an
employment contract or confer or be deemed to confer any right for you to
continue in the employ of, or to continue any other relationship with, the
Company or any Related Corporation or limit in any way the right of the Company
or any Related Corporation to terminate your employment or other relationship at
any time, with or without Cause.
12. NO RIGHT TO DAMAGES. You will have no right to bring a claim
or to receive damages if you are required to exercise the vested portion of the
Option within three months (one year in the case of Retirement, Disability or
death) of the Employment Termination Date or if any portion of the Option is
cancelled or expires unexercised. The loss of existing or potential profit in
Awards will not constitute an element of damages in the event of termination of
employment or service relationship for any reason even if the termination is in
violation of an obligation of the Company or a Related Corporation to you.
13. BINDING EFFECT. This Agreement will inure to the benefit of
the successors and assigns of the Company and be binding upon you and your
heirs, executors, administrators, successors and assigns.
THE FOLLOWING SECTION 14 APPLIES ONLY TO NON-US RESIDENTS
14. LIMITATION ON RIGHTS; NO RIGHT TO FUTURE GRANTS; EXTRAORDINARY
ITEM OF COMPENSATION. By entering into this Agreement and accepting the grant of
the Option evidenced hereby, you acknowledge: (a) that the Plan is discretionary
in nature and may be suspended or terminated by the Company at any time; (b)
that the grant of the Option is a one-time benefit which does not create any
contractual or other right to receive future grants of options, or benefits in
lieu of options; (c) that all determinations with respect to any such future
grants, including, but not limited to, the times when options will be granted,
the number of shares subject to each option, the option price, and the time or
times when each option will be exercisable, will be at the sole discretion of
the Company; (d) that your participation in the Plan is voluntary; (e) that the
value of the Option is an extraordinary item of compensation which is outside
the scope of your employment contract, if any; (f) that the Option is not part
of normal or expected compensation for purposes of calculating any severance,
resignation, redundancy, end of service payments, bonuses, long-service awards,
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pension or retirement benefits or similar payments; (g) that the vesting of the
Option ceases upon termination of employment or service relationship with the
Company for any reason except as may otherwise be explicitly provided in the
Plan or this Agreement or otherwise permitted by the Plan Administrator; (h)
that the future value of the Shares underlying the Option is unknown and cannot
be predicted with certainty; and (i) that if the Shares underlying the Option do
not increase in value, the Option will have no value.
15. EMPLOYEE DATA PRIVACY. By entering this Agreement, you (a)
authorize the Company and your employer, if different, and any agent of the
Company administering the Plan or providing Plan recordkeeping services, to
disclose to the Company or any of its affiliates any information and data the
Company requests in order to facilitate the grant of the Option and the
administration of the Plan; (b) waive any data privacy rights you may have with
respect to such information; and (c) authorize the Company and its agents to
store and transmit such information in electronic form.
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