Employment Agreement - CancerVax Corp. and John Petricciani
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of
January 5, 2001, between CancerVax Corporation, a Delaware corporation (the
"Company"), and John Petricciani, M.D., an individual ("Executive"), with
reference to the following:
This Agreement supercedes and replaces that certain Employment
Agreement, dated as of January 5, 2001, by and between the Company and Executive
(the "Prior Agreement').
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.
WHEREAS, the Prior Agreement provides that a waiver, modification or
amendment to the Prior Agreement may be effected with the written consent of
Executive and the Company.
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 the date hereof 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 Senior Vice President,
Medical and Regulatory Affairs 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
part-time basis and shall devote four days per week to his services at the
Company on a mutually agreeable schedule. Executive's place of work shall be the
Company's headquarters in Carlsbad, California or such other location in 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 and Executive
shall be permitted to telecommute from his principal residence in Palm Springs,
California, as appropriate. Executive shall be subject to the policies and
procedures generally applicable to
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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 for at least 4 days per week
to the performance of such duties; provided, however, that (a) Executive may
devote time to personal and family investments and (b) subject to approval by
the Board, Executive may perform services for third parties who do not compete
directly or indirectly with the Company Business, in each case, to the extent
that the time so spent and services so performed do 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 a salary
("Base Salary") of $150,000 per annum. 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.
3.2. Bonus. Executive shall be eligible to participate in the
CancerVax Corporation Management Incentive Compensation Plan (copy attached) or
to such other bonus plan as the Board of Directors may approve for the Senior
Executive Officers 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 Board 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. In addition, the
Company shall reimburse (a) Executive's mileage (at the rate of $0.31 per mile),
gasoline and actual cost of
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airfare plus ground transportation to and from airports for travel between
Carlsbad, California and Executive's principal residence in Palm Springs,
California and (b) Executive's lodging in the Carlsbad area at the rate of
$1,350 per month, plus telephone and utilities for such lodging (unless
Executive relocates to the Carlsbad area), in each case, upon submission of
evidence in the form of receipts satisfactory to the Company substantiating such
expenses.
3.5. Vacation. Executive shall be entitled to the number of
paid vacation days in each calendar year determined by the Company 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 125,000 shares of the Company's common stock. 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 described in such Plan
and the applicable stock option agreement. Executive shall vest in twenty-five
percent (25%) of the option shares on April 1, 2001, and the balance shall vest
in monthly installments over the thirty-six (36) 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 of this Agreement for Company Convenience as defined in Section 7.3,
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 of Executive. 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.
5. Certain Covenants.
5.1. Noncompetition. 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
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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 the Company's personnel entitled thereto and 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.
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 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
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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 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.
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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 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
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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
(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. 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.
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
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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,
the Company shall continue to pay to Executive, as severance pay, Executive's
Base Salary as provided in Section 3.2 above, for a period of 12 months after
the effective date of such termination, less any amounts Executive actually
earns in respect of such period as a result of his employment by any other
employer. In the event of the termination of Executive's employment for Company
Convenience, Executive shall diligently seek new employment at a level
commensurate with his duties hereunder.
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 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,
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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, supersedes all existing agreements between them concerning such subject
matter, and may be modified only by a written instrument duly executed by each
party.
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.
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:
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CancerVax Corporation
5620 Paseo Del Norte, #127-541
Carlsbad, CA 92008
Attention: Chief Executive Officer
Executive:
Dr. John Petricciani
_____________________________________
_____________________________________
_____________________________________
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 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 San Diego, 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
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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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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
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Its: President & CEO
EXECUTIVE
/s/ John Petricciani
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Dr. John Petricciani