EXHIBIT 10.20
EMPLOYMENT SEPARATION AND GENERAL RELEASE AGREEMENT
This Employment Separation and General Release Agreement ("Separation
Agreement") is entered into by and between Michael J. Gerber, M.D. ("Dr.
Gerber"), an individual, and Allos Therapeutics, Inc. ("Allos"), and shall
become effective on the Effective Date as defined in Section 16 below. Dr.
Gerber and Allos may be collectively referred to herein as the "Parties."
RECITALS
A. Effective September 24, 2001, Dr. Gerber has resigned his position as Senior
Vice President, Clinical Development and Regulatory Affairs and any and all
other positions Dr. Gerber may have held with Allos, or any affiliate or
subsidiary of Allos.
B. The Parties wish the make the separation amicable but conclusive on the terms
and conditions set forth herein.
C. Dr. Gerber accepts the benefits of this Separation Agreement with the
acknowledgment that by its terms he has been fully and satisfactorily
compensated.
COVENANTS
In consideration of the mutual covenants and promises set forth in this
Separation Agreement, including Dr. Gerber's general release of claims and
covenant not to sue, the Parties agree as follows:
1. Resignation. Dr. Gerber resigned as Senior Vice President, Clinical
Development and Regulatory Affairs, and any and all other positions Dr. Gerber
may have held with the Allos and any of affiliates or subsidiaries of Allos,
effective as of September 24, 2001, at 5:00 p.m. (the "Separation Date"). Dr.
Gerber acknowledges that he has received payment of all wages and compensation,
including payment for all accrued vacation benefits and bonuses, that he earned
up through the Separation Date, subject to standard payroll deductions and
withholdings.
2. Severance Benefits. As part of the consideration for the mutual covenants and
promises contained in this Separation Agreement, including Dr. Gerber's general
release of claims and covenant not to sue, Dr. Gerber will be eligible to
receive the following severance benefits:
a. Severance Pay. Subject to the terms and conditions of
this Separation Agreement, Dr. Gerber shall receive
severance pay ("Severance Pay") in the gross sum of
$256,781.20 which is equal to 52 weeks of his weekly base
compensation. The Severance Pay will be subject to all
required deductions and tax withholdings. The Severance Pay
will be paid in equal installments in accordance with Allos'
normal payroll cycle during the 52-week period following the
Effective Date of this Agreement as defined in Section 16
below.
b. Disability Insurance Premiums. Allos shall reimburse Dr.
Gerber, on a grossed-up basis, for the premium costs he
incurs in continuing in effect the supplemental disability
insurance policy under which he is now insured for a period
of 24-months following the Separation Date.
c. COBRA Insurance Premiums. For purposes of the
Consolidated Omnibus Budget Reconciliation Act, the
applicable COBRA period (typically 18 months) will begin
September 25, 2001. Pursuant to the terms and conditions of
COBRA and Allos' group medical and dental insurance plan,
Dr. Gerber may continue his participation and his
dependents' participation in Allos' medical and dental
insurance plan for the applicable COBRA period by making
required COBRA payments. Dr. Gerber acknowledges that Allos
has provided him with a COBRA notification setting forth his
rights and responsibilities with respect to COBRA coverage.
As part of the consideration for the mutual covenants and
promises contained in this Separation Agreement, including
Dr. Gerber's release of claims and promise not to sue,
should Dr. Gerber timely elect to continue medical and
dental insurance coverage pursuant to COBRA, Allos agrees to
pay Dr. Gerber's COBRA monthly premiums for the period
beginning September 25, 2001 and ending September 24, 2002
to maintain medical and dental insurance coverage that is
similar to that coverage he and his dependents received
through Allos immediately prior to the Separation Date.
After September 24, 2002, Dr. Gerber will be responsible for
paying the COBRA monthly premiums. Notwithstanding the
foregoing, Allos' obligation to pay Dr. Gerber's COBRA
monthly premiums shall cease immediately upon Dr. Gerber's
eligibility for comparable group health insurance provided
by a new employer. Dr. Gerber agrees to promptly notify
Allos in writing should he become eligible for any medical
or dental insurance benefits through a new employer.
3. Stock Options.
a. As of the Separation Date, Dr. Gerber had the following
outstanding options (collectively, the "Options") to
purchase shares of Allos' Common Stock:
i. Options to purchase 31,000 shares of
Common Stock pursuant to an Incentive
Stock Option granted on March 4, 1999,
under Allos' 1995 Stock Option Plan
(the "1995 Plan"), of which 31,000
options are vested;
ii. Options to purchase 31,000 shares of
Common Stock pursuant to an Incentive
Stock Option granted on March 4, 1999,
under the 1995 Plan, of which 31,000
options are vested;
iii. Options to purchase 31,000 shares of
Common Stock pursuant to an Incentive
Stock Option granted on May 12, 1999,
under the 1995 Plan, of which 31,000
options are vested;
iv. Options to purchase 85,571 shares of
Common Stock pursuant to an Incentive
Stock Option granted on August 31,
1999, under the 1995 Plan, of which
46,350 options are vested;
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v. Options to purchase 67,432 shares of
Common Stock pursuant to a
Non-Qualified Stock Option granted on
August 31, 1999, under the 1995 Plan,
of which 36,525 options are vested;
vi. Options to purchase 31,000 shares of
Common Stock pursuant to a
Non-Qualified Stock Option granted on
August 31, 1999, under the 1995 Plan,
of which 31,000 options are vested;
vii. Options to purchase 31,000 shares of
Common Stock pursuant to a
Non-Qualified Stock Option granted on
August 31, 1999, under the 1995 Plan,
of which zero (0) options are vested;
viii. Options to purchase 36,167 shares of
Common Stock pursuant to a
Non-Qualified Stock Option granted on
January 12, 2000, under the 1995 Plan,
of which zero (0) options are vested;
ix. Options to purchase 41,333 shares of
Common Stock pursuant to an Incentive
Stock Option granted on January 12,
2000, under the 1995 Plan, of which
zero (0) options are vested;
x. Options to purchase 28,500 shares of
Common Stock pursuant to an Incentive
Stock Option granted on March 1, 2001,
under Allos' 2000 Stock Incentive
Compensation Plan (the "2000 Plan"
and, together with the 1995 Plan, the
"Stock Option Plans") of which zero
(0) options are vested; and
xi. Options to purchase 9,500 shares of
Common Stock pursuant to an Incentive
Stock Option granted on July 17, 2001,
under the 2000 Plan, of which zero (0)
options are vested.
b. The Parties acknowledge and agree that, upon Dr.
Gerber's execution of the Consulting Agreement (as defined in
Section 5 below), the Options shall continue to be governed and
controlled by the terms and conditions of such Options and the
applicable Stock Option Plans. Dr. Gerber is advised by Allos to
seek independent legal advice with respect to tax and securities
laws regarding his Options, including their status as incentive
stock options, and any sale of Allos stock that he may wish to
make, in addition to consulting the applicable Stock Option Plan.
c. Except for the occurrence of Dr. Gerber's
resignation, which Allos intends to publicly announce as soon as
reasonably practicable following the execution of this Separation
Agreement, each of Allos and Dr. Gerber hereby represent to the
other party that they have no knowledge of any material,
non-public information that would restrict or otherwise affect Dr.
Gerber ability to exercise any vested Options or sell any shares
of Allos common stock pursuant to Allos' policies against insider
trading.
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4. Transition Assistance. As part of the consideration for the mutual covenants
and promises contained in this Separation Agreement, including Allos' provision
of the severance benefits pursuant to Section 2 above, Dr. Gerber agrees to
reasonably assist Allos in the transition of his job duties, responsibilities
and knowledge to other Allos employees as reasonably requested by Allos. Dr.
Gerber's obligation to provide such transition assistance shall terminate four
months after the Separation Date and shall be limited to 20 hours each month
during the four month transition period.
5. Consulting Agreement. As part of the consideration for the mutual covenants
and promises contained in this Separation Agreement, including Dr. Gerber's
general release of claims and covenant not to sue, Allos and Dr. Gerber are
simultaneously entering into a consulting agreement, a copy of which is attached
hereto as Exhibit 1 (the "Consulting Agreement").
6. Dr. Gerber's General Release and Covenant Not to Sue. Dr. Gerber, for
himself, his heirs and assigns, does hereby release and discharge Allos and its
present, past and future subsidiaries, divisions, parent and affiliated
companies, and their respective shareholders, directors, officers, employees,
agents, insurers and attorneys (collectively referred to hereafter as the "Allos
Released Parties"), of and from, and promises not to sue or assert against the
Allos Released Parties, for any purpose, all claims, causes of action, damages,
losses, liabilities and demands whatsoever including, but not limited to, any
claim arising from or related to or attributable to Dr. Gerber's employment with
any of the Allos Released Parties and the termination of such employment. This
release includes, but is not limited to, all matters which may arise under
common law or under federal, state, or local laws, including, but not limited
to, all claims under the Age Discrimination in Employment Act, as amended, 29
U.S.C. Sections 621, et seq. ("ADEA"), Title VII of the Civil Rights Act of
1964, as amended, the Civil Rights Act of 1991, the Americans with Disabilities
Act of 1990, the Fair Labor Standards Act, the Worker Adjustment and Retraining
Notification Act ("WARN Act"), the Colorado Antidiscrimination Act, and the
Colorado Wage Claim Act. Dr. Gerber understands and agrees that his release of
claims under this Separation Agreement extends to all claims of every nature and
kind, known and unknown, suspected or unsuspected, presently existing or which
may arise in the future caused by or resulting from or attributable to any act
or omission of the Allos Released Parties occurring prior to Dr. Gerber's
execution of this Separation Agreement. Allos understands and agrees that Dr.
Gerber is not waiving any right or claim which may arise after the date he
executes this Separation Agreement which is based upon any act or omission of
Allos or the Allos Released Parties occurring after his execution of this
Separation Agreement.
7. Dr. Gerber's Acknowledgment Concerning Release of ADEA Claims. Dr. Gerber
expressly acknowledges and agrees that, by entering into this Separation
Agreement, he is waiving any and all rights or claims that he may have under the
Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, which have
arisen on or before the date of his execution of this Separation Agreement. Dr.
Gerber further expressly acknowledges and agrees that:
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a. In exchange for Dr. Gerber's waiver of any and all rights
or claims under the ADEA arising on or before the date of
his execution of this Separation Agreement, he will receive
consideration in addition to any consideration which he was
already entitled to receive before executing this Separation
Agreement;
b. Dr. Gerber was advised in writing by this Separation
Agreement to consult with an attorney of his choice and at
his expense prior to his execution of this Separation
Agreement;
c. A copy of this Separation Agreement was delivered to Dr.
Gerber on September 24, 2001, and he was informed in writing
by this Separation Agreement that he has twenty-one (21)
days within which to consider the Separation Agreement;
d. If Dr. Gerber executes this Separation Agreement prior to
the expiration of the 21-day period mentioned above, he
voluntarily does so thereby waiving the 21-day period; and
e. Dr. Gerber was informed that he has seven (7) days
following his execution of this Separation Agreement in
which to revoke the Separation Agreement.
8. Continuing Obligations Under the Non-Competition
Agreement and Sections 12 and 13 of the Employment
Agreement.
a. Subject to the amendment set forth below, Dr. Gerber
understands and agrees that notwithstanding the termination
of his employment relationship with Allos, he remains
subject to the terms and conditions of Sections 12 and 13 of
that certain Employment Agreement dated January 17, 2001 by
and between Dr. Gerber and Allos (the "Employment
Agreement"). The Parties hereby agree that the final
sentence of Section 12 of the Employment Agreement shall be
amended to read as follows:
Accordingly, during the term of Executive's employment and
for a period of twelve (12) months immediately following
Executive's resignation, Executive shall not without first
obtaining the written approval of the Company, directly or
indirectly engage or prepare to engage, in any activities in
the United States or Canada in competition with the Company,
or accept employment or establish a business relationship
with a business located in the United Sates or Canada that
directly competes with the Company with regard to radiation
sensitizers.
b. Subject to the amendment set forth below, Dr. Gerber
understands and agrees that notwithstanding the termination
of his employment relationship with Allos, he remains
subject to the terms and conditions of that certain
Non-Competition, Proprietary Information and Inventions
Agreement attached to the Employment Agreement as Exhibit A
(the "Non-Competition Agreement"). The Parties hereby agree
that the definition of "Restricted Business" as set forth in
Section 5.2(i) of the Non-Competition Agreement shall be
amended to read as follows:
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"Restricted Business" shall mean the research, design,
development, marketing or sales of any technology or product
that is based upon or utilizes radiation sensitizers.
c. Notwithstanding any provisions in this Separation
Agreement to the contrary, Allos' obligations to provide
severance benefits pursuant to Section 2 above, and Dr.
Gerber's rights to receive such severance benefits, shall
cease and be rendered a nullity immediately should Dr.
Gerber fail to comply with the Non-Competition Agreement and
Sections 12 and 13 of the Employment Agreement, as amended
herein.
9. Return of Allos Property. Dr. Gerber represents and
affirms that he has returned to Allos all Allos property in
his possession or control including, but not limited to,
such items as corporate credit cards, keys, equipment on
loan, files, documents, computer hardware and software,
computer accessories, manuals, note books, and all other
corporate property belonging to Allos.
10. Non-Disparagement. As part of the consideration for the
mutual covenants and promises contained in this Separation
Agreement, (i) Allos agrees not to disparage or otherwise
make negative statements or comments about or relating to
Dr. Gerber; and (ii) Dr. Gerber agrees not to disparage or
otherwise make negative statements or comments about or
relating to Allos, the Allos Released Parties, Allos'
products and services, investigators who collaborate with
Allos on its products, and analysts who analyze Allos'
business. This provision is a material term of this
Separation Agreement and Dr. Gerber understands that Allos'
willingness to provide him with the severance benefits set
forth in Section 2 above is based, in part, on his agreement
to comply with the requirements of this Section 10. Thus,
notwithstanding any provisions in this Separation Agreement
to the contrary, Allos' obligations to provide severance
benefits pursuant to Section 2 above, and Dr. Gerber's
rights to receive such severance benefits, shall cease and
be rendered a nullity immediately should Dr. Gerber fail to
comply with this Section 10.
11. Non-Solicitation and Non-Interference. In addition to
his obligations under the Non-Competition Agreement, Dr.
Gerber agrees that during the period he is receiving the
Severance Pay under Section 2 above, he will not (i)
directly or indirectly interfere with Allos' relationship
with any employee, consultant, investor, shareholder,
investigator, or analyst, (ii) directly or indirectly hire
or attempt to hire any employee or consultant of Allos to
work for any person, firm or entity of or for which Dr.
Gerber is an officer, director, employee, consultant or
owner of equity or other financial interest, or (iii)
directly or indirectly assist any other person or entity in
employing or soliciting for employment any employee or
consultant of Allos. This provision is a material term of
this Separation Agreement and Dr. Gerber understands that
Allos' willingness to provide him with the severance
benefits set forth in Section 2 above is based, in part, on
his agreement to comply with the requirements of this
Section 11. Thus, notwithstanding any provisions in this
Separation Agreement to the contrary, Allos' obligations to
provide severance benefits pursuant to Section 2 above, and
Dr. Gerber's rights to receive such severance benefits,
shall cease and be rendered a nullity immediately should Dr.
Gerber fail to comply with his obligations under this
Section 11.
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12. Confidentiality. The provisions of this Separation Agreement shall be held
in strictest confidence by Dr. Gerber and Allos and shall not be publicized or
disclosed in any manner whatsoever. Each of Dr. Gerber and Allos acknowledges,
represents and agrees that he or it, respectively, has not and will not disclose
the terms or provisions of this Separation Agreement to any current, former or
future employee of Allos, or of any of its subsidiaries, divisions, and
affiliates, other than, in the case of Allos, officers or employees who have a
need to know in connection with the performance of their duties. Notwithstanding
the prohibitions contained in this Section 12: (i) the Parties may disclose this
Separation Agreement in confidence to their respective legal and financial
advisors (and family members in the case of Dr. Gerber), each of whom shall be
advised of and be required to adhere to this Separation Agreement's
confidentiality requirement, (ii) Allos may disclose this Separation Agreement
as necessary to fulfill standard or legally required corporate or securities law
reporting or disclosure requirements or to comply with standard due diligence
requests in connection with any financings, mergers or acquisitions, or other
business transactions; (iii) Allos may disclose this Separation Agreement upon
request from any governmental entity; and (iv) the Parties may disclose this
Separation Agreement insofar as disclosure may be necessary to enforce one or
more terms of this Separation Agreement. This provision is a material term of
this Separation Agreement and Dr. Gerber understands that Allos' willingness to
provide him with the severance benefits set forth in Section 2 above is based,
in part, on his agreement to comply with the requirements of this Section 12.
Thus, notwithstanding any provisions in this Separation Agreement to the
contrary, Allos' obligations to provide severance benefits pursuant to Section 2
above, and Dr. Gerber's rights to receive such severance benefits, shall cease
and be rendered a nullity immediately should Dr. Gerber fail to comply with his
obligations under this Section 12.
13. Opportunity to Review and Consider Separation Agreement. Dr. Gerber
acknowledges that a copy of this Separation Agreement was delivered to him on
September 24, 2001, and that he has been given a period of 21 calendar days to
review, analyze and consider this Separation Agreement before signing it. Dr.
Gerber further acknowledges that he understands this Separation Agreement in its
entirety.
14. Right to Revoke Separation Agreement. Dr. Gerber may revoke this Separation
Agreement, and, in particular, may revoke his waiver of any and all rights or
claims under the ADEA arising on or before the date of his execution of this
Separation Agreement, during the seven (7) days following his execution of this
Separation Agreement. Any revocation of this Separation Agreement must be in
writing and hand-delivered during the revocation period to Barbara Baring,
Allos' Vice President of Human Resources.
15. Legal Advice. Dr. Gerber acknowledges that he has been advised to consult
with an attorney of his own choice and at his own expense before executing this
Separation Agreement and that he has been given an opportunity to do so.
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16. Effective Date. The Effective Date of this Separation Agreement shall be the
eighth day after Dr. Gerber signs and returns this Separation Agreement to Allos
so long as he does not exercise his right to revoke this Separation Agreement as
set forth in Section 12 above. In the event Dr. Gerber fails to sign and return
this Separation Agreement to Allos on or before October 17, 2001, or revokes
this Separation Agreement within 7 days after he signs it, this Separation
Agreement and the attached Consulting Agreement will be null and void.
17. Miscellaneous.
a. Modification/Waiver. This Separation Agreement may not be
amended, modified, superseded, canceled, renewed or
expanded, or any terms or covenants hereof waived, except by
a writing executed by each of the Parties hereto or, in the
case of a waiver, by the party waiving compliance. Failure
of any party at any time or times to require performance of
any provision hereof shall in no manner affect his or its
right at a later time to enforce the same. No waiver by a
party of a breach of any term or covenant contained in this
Separation Agreement, whether by conduct or otherwise, in
any one or more instances shall be deemed to be or construed
as a further or continuing waiver of agreement contained in
the Separation Agreement.
b. Entire Agreement. This Separation Agreement, the
Consulting Agreement, the Non-Competition Agreement and
Sections 12 and 13 of the Employment Agreement constitute
and contain the entire agreement and understanding between
the Parties concerning the subject matters addressed herein
and therein and supersedes and replaces all prior
negotiations and agreements, proposed or otherwise, whether
written or oral, concerning the subject matters of this
Separation Agreement. By way of example, and without
limitation, this Separation Agreement supersedes Section 9
of the Employment Agreement, and this Separation Agreement
extinguishes Allos' obligation to provide Dr. Gerber with
any severance benefits under the Employment Agreement.
c. Severability. If any provision of this Separation
Agreement or any application thereof is held invalid, the
invalidity shall not affect other provisions or applications
of this Separation Agreement which can be given effect
without the invalid provision or application.
d. Notices. All notices given hereunder shall be given by
certified mail, addressed, or delivered by hand, to the
other party at his or its address as set forth below, or at
any other address hereafter furnished by notice given in
like manner. Dr. Gerber promptly shall notify Allos of any
change of his address. Each notice shall be dated the date
of its mailing or delivery and shall be deemed given,
delivered or completed on such date.
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Michael J. Gerber, MD
500 Clermont Street
Denver, CO 80220
Allos Therapeutics, Inc.
Attn: Stephen J. Hoffman, MD
President, Chief Executive Officer
11080 CirclePoint Road
Westminster, CO 80020
e. Governing Law; Personal Jurisdiction and Venue; Enforcement. This
Separation Agreement and all disputes relating to this Separation
Agreement shall be governed in all respects by the laws of the State
of Colorado as such laws are applied to agreements between Colorado
residents entered into and performed entirely in Colorado. The Parties
acknowledge that this Separation Agreement constitutes the minimum
contacts to establish personal jurisdiction in Colorado and agree to
Colorado court's exercise of personal jurisdiction. The Parties
further agree that any dispute relating to this Agreement shall be
brought in a court located in the State of Colorado and that the
prevailing party in such a dispute shall be entitled to an award of
his or its costs and expenses incurred in such dispute, including his
or its reasonable attorney's fees, in addition to any other relief to
which the party may be entitled.
f. Counterparts. This Separation Agreement may be executed by
facsimile signature and may be executed in several counterparts, each
of which shall be deemed an original and all of which taken together
shall constitute a single instrument. Photographic copies of such
executed counterparts may be used in lieu of the original for any
purpose.
DR. GERBER AND ALLOS HEREBY ACKNOWLEDGE THAT THEY HAVE READ THIS
SEPARATION AGREEMENT, THAT THEY FULLY UNDERSTAND ITS FINAL AND BINDING
EFFECT, THAT THE ONLY PROMISES MADE TO THEM TO SIGN THIS SEPARATION
AGREEMENT ARE THOSE STATED ABOVE, AND THAT THEY ARE SIGNING THIS
SEPARATION AGREEMENT VOLUNTARILY.
[Remainder of page is intentionally left blank]
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IN WITNESS WHEREOF, the undersigned parties have executed this Agreement as of
the 3rd day of October, 2001.
ALLOS THERAPEUTICS, INC.
By: /s/ STEPHEN J. HOFFMAN
-----------------------------------
Stephen J. Hoffman, MD
President, Chief Executive Officer
STATE OF COLORADO )
) ss
COUNTY OF BROOMFIELD )
The foregoing instrument was acknowledged before me this 16th day of November,
2001, by Stephen J. Hoffman MD, as President, Chief Executive Officer of Allos
Therapeutics, Inc.
Witness my hand and official seal.
My commission expires:
/s/ SHARON A. SMITH
Notary Public
/s/ MICHAEL J. GERBER
MICHAEL J. GERBER, M.D.
STATE OF COLORADO )
) ss
COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this 16th day of November,
2001, by Michael J. Gerber, M.D.
Witness my hand and official seal.
My commission expires: 6/10/2002
/s/ MILDRED C. MORIE
Notary Public
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EXHIBIT ONE
CONSULTING AGREEMENT
This Consulting Agreement ("Consulting Agreement") is made and entered into
effective this 24th day of September, 2001, by and between Allos Therapeutics,
Inc., a Delaware corporation (the "Company"), located at 11080 CirclePoint Road,
Westminster, CO 80020, and Michael J. Gerber, M.D. ("Consultant"). The Company
and the Consultant may be collectively referred to herein as the "Parties."
RECITALS
A. Consultant has been employed by the Company since July 1994 and was a party
to an employment agreement with the Company dated January 17, 2001.
B. The Parties are terminating their employment relationship pursuant to an
Employment Separation and General Release Agreement (the "Separation
Agreement"). As part of the Separation Agreement, Consultant is required to
provide certain transition assistance to the Company by assisting in the
transition of his job duties, responsibilities and knowledge to other Company
employees. Consultant is required to provide this transition assistance for up
to 20 hours per month during the four-month period immediately following the
termination of the Parties' employment relationship.
C. The Company would like to retain Consultant to provide certain consulting
services relating to his areas of expertise and Consultant is willing to provide
such consulting services. The Parties understand and agree that the consulting
services will be independent of and separate from the transition assistance
Consultant is required to provide under the Separation Agreement. The Parties
are thus entering into this Consulting Agreement to govern their rights and
obligations with respect to Consultant's provision of such consulting services.
AGREEMENT
In consideration of the mutual promises and covenants contained herein, the
Parties agree as follows:
1. Term of Agreement: Unless sooner terminated in accordance with Section 9
below, this Consulting Agreement shall remain in full force and effect and shall
bind the Parties for a period of one year from the effective date hereof. The
Parties may renew this Consulting Agreement for additional periods upon mutual
written agreement.
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2. Consultant Obligations: As requested from time to time by the Company's
executive officers, Consultant shall provide consulting services (the
"Consulting Services") which relate to his areas of expertise and which the
Company's executive officers believe would be beneficial to the Company. The
specific nature and amount of the Consulting Services that Consultant may be
requested to perform by the Company under this Consulting Agreement shall be
within the sole discretion of the Company. Consultant shall perform the
Consulting Services at his offices unless otherwise agreed to by the Parties.
Consultant agrees to make himself available to provide the Consulting Services
at the times reasonably requested by the Company; provided that, the Company
will reasonably cooperate with Consultant in the event that he has conflicts in
connection with his other obligations, whether such obligations are work related
or personal.
3. Company Obligations: The Company shall compensate Consultant at the rate of
$2,500 per day for the time he actually spends in providing the Consulting
Services. A "day" for purposes of this Consulting Agreement shall mean not less
than eight hours spent during a given day in the performance of the Consulting
Services. In the event Consultant spends less than eight hours during a given
day providing the Consulting Services, he shall be compensated on a prorated
basis for that day (i.e., If Consultant spends five hours on a given day
providing the Consulting Services, he shall be compensated for that day at the
rate of 5/8 x $2,500). With respect to travel time, Consultant shall be
compensated only for time spent actually performing the Consulting Services; he
shall not be compensated for travel time during which Consulting Services are
not performed. In addition, the Company shall provide reimbursement at cost for
those reasonable expenses incurred by Consultant in performing the Consulting
Services, such as long distance telephone calls, actual travel costs at the
lowest available rate for 7-day advanced fare purchases (unless the Company
requests Consultant to travel on less than 7 days' notice), and materials
requested by the Company. Reasonably detailed invoices, together with
accompanying documentation regarding any expenses for which reimbursement is
sought, shall be submitted on at least a monthly basis and payment will be
forwarded no later than 30 days after receipt of the invoice. Consulting
services shall be compensated pursuant to the foregoing provisions both during
the four 4 month transition period and during the entire term of this Agreement.
The Consultant shall not be required to provide more than 20 hours of
non-compensated transition services during each of the first 4 months and,
accordingly, all hours in excess of 20 in each such month shall be deemed
consulting.
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4. Independent Contractor:
a) Consultant's relationship with the Company is that of an
independent contractor, and nothing in this Consulting Agreement
should be construed to create a partnership, joint venture, or
employer-employee relationship. Consultant is not the agent of the
Company and is not authorized to make any representation, contract, or
commitment on behalf of Company without the written consent of an
officer of the Company. Consultant will not be entitled to any of the
benefits which the Company may make available to its employees, such
as group insurance, profit-sharing, or retirement benefits. The
Consultant will be solely responsible for all tax returns and payments
required to be filed with or made to any federal, state or local tax
authority with respect to Consultant's performance of the Consulting
Services and his receipt of fees under this Consulting Agreement. The
Company will regularly report amounts paid to Consultant by filing
Form 1099-MISC with the Internal Revenue Service as required by law.
Because Consultant is an independent contractor, the Company will not
withhold or make payments for social security; make unemployment
insurance or disability insurance contributions; or obtain worker's
compensation insurance on Consultant's behalf. Consultant agrees to
accept exclusive liability for complying with all applicable state and
federal laws governing self-employed individuals, including
obligations such as payment of taxes, social security, disability and
other contributions based on fees paid to Consultant, his agents or
employees under this Consulting Agreement.
b) Consultant acknowledges that if he is injured while performing the
Consulting Services hereunder, he will not be covered for such injury
under the Company's insurance policies, including under any Worker's
Compensation coverage provided by the Company for its employees.
Consultant further acknowledges that he is solely responsible for
providing Worker's Compensation insurance for any of his employees.
5. Other Activities: Consultant is free to enter into any contract to
provide consulting services to other businesses, entities, or
individuals, during the term of this Consulting Agreement, unless such
contract would violate the provisions of this Consulting Agreement or
the Separation Agreement, would induce Consultant to breach any
provision of this Consulting Agreement or the Separation Agreement, or
would prevent or restrict Consultant from satisfying Consultant's
obligations under this Consulting Agreement.
6. Stock Options: For so long as this Consulting Agreement remains in
effect, Consultant's Options shall continue to vest pursuant to the
terms of the Options and the applicable Stock Option Plans. The
Parties acknowledge and agree that upon the termination of this
Consulting Agreement, (i) Dr. Gerber will have ninety (90) days
following the date of such termination (the "Termination Date") to
exercise all Options (as defined in Section 3 of the Separation
Agreement) which are vested as of the Termination Date; and (ii) all
Options which have not vested as of the Termination Date will
terminate and revert to the Company as of the Termination Date, all in
accordance with the terms and conditions of such Options and the
applicable Stock Option Plan (as defined in Section 3 of the
Separation Agreement). The Parties further acknowledge and agree that,
Dr. Gerber is advised by the Company to seek independent legal advice
with respect to tax and securities laws regarding his Options and any
sale of Company stock he may wish to make, in addition to consulting
the terms and conditions of the Options and the Stock Option Plans.
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7. Proprietary Information:
a) In addition to his obligations under the Separation Agreement,
Consultant agrees that he shall not, at any time during the term of
this Consulting Agreement and for a period of ten years thereafter,
whether or not in the employ of the Company, disclose, communicate, or
divulge to, or use for his personal benefit or for the benefit of any
person, firm, association, or corporation other than the Company, any
reproductions or materials of any kind, any proprietary information,
knowledge, or information with respect to techniques used by the
Company in connection with its operations, any business methods,
business policies or any other information relating to or dealing with
the policies or practices of the Company, made known to Consultant by
the Company or any of its officers or employees, or learned by
Consultant while in the employ of the Company or communicated to or
acquired by Consultant while in the employment of Company without the
prior written consent of Company. Consultant further covenants and
agrees that the termination of this Consulting Agreement shall not
release Consultant from the foregoing obligations, and that such
knowledge or information which Consultant has obtained or may obtain
in the course of providing the Consulting Services under this
Consulting Agreement will be kept confidential for such ten-year
period and not revealed to any competitor firms, corporations,
associations, and other persons whatsoever.
b) Upon the expiration or earlier termination of this Consulting
Agreement, Consultant covenants and agrees to deliver to the Company
any articles or papers which have come into Consultant's possession
during the performance of the Consulting Services for the Company or
which Consultant holds for the Company irrespective of whether such
data, lists, papers, or records were prepared by Consultant or not.
8. Allos Inventions: The Consultant agrees that the Company has
exclusive rights and ownership to any ideas, inventions, writings or
other developments conceived or contributed to or by Consultant as
part of his provision of the Consulting Services to the Company. At
the request of the Company, Consultant will assist in executing any
documents reasonably required to confirm any proprietary rights or
patents that the Company may pursue. By entering into this Consulting
Agreement, Consultant acknowledges that he will return any and all
Company property or materials in his possession at the termination of
this Consulting Agreement or at the request of the Company.
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9. Termination: Notwithstanding any provisions in this Consulting Agreement to
the contrary, this Consulting Agreement and Consultant's status as a consultant
shall automatically terminate upon any of the following occurrences:
a) Consultant's material breach of any provision of this Consulting
Agreement that is not remedied within 30 days after written notice of
such breach is provided to Consultant by the Company's Board of
Directors;
b) Consultant's breach of any provision of the Separation Agreement;
c) Consultant's failure to sign the Separation Agreement on or before
October 17, 2001;
d) Consultant's revocation of the Separation Agreement at any time
during the eight day period after he signs it;
e) The initiation of any legal proceeding or administrative action by
Consultant against the Company; or
f) Written notice by Consultant to the Company that he wishes to
terminate this Consulting Agreement.
10. Severability: If any provision of this Consulting Agreement or any
application thereof is held invalid, the invalidity shall not affect
other provisions or applications of this Consulting Agreement which
can be given effect without the invalid provision or application.
11. Entire Agreement: This Consulting Agreement and the Separation
Agreement constitute and contain the entire agreement and
understanding between the Parties concerning the subject matters
addressed herein and supersede and replace all prior negotiations and
agreements, proposed or otherwise, whether written or oral, concerning
the subject matters of this Consulting Agreement. This Consulting
Agreement shall not be altered, amended, or changed except by a
writing executed by each of the Parties hereto or, in the case of a
waiver, by the party waiving compliance.
12. Governing Law; Personal Jurisdiction and Venue; Enforcement. This
Consulting Agreement and all disputes relating to this Consulting
Agreement shall be governed in all respects by the laws of the State
of Colorado as such laws are applied to agreements between Colorado
residents entered into and performed entirely in Colorado. The Parties
acknowledge that this Consulting Agreement constitutes the minimum
contacts to establish personal jurisdiction in Colorado and agree to
Colorado courts' exercise of personal jurisdiction. The Parties
further agree that any dispute relating to this Consulting Agreement
shall be brought in a court located in the State of Colorado and that
the prevailing party in such a dispute shall be entitled to an award
of his or its costs and expenses incurred in such dispute, including
his or its reasonably attorney's fees, in addition to any other relief
to which the party may be entitled.
13. Assignment: This Consulting Agreement and the rights and
obligations hereunder shall be and hereby are non-assignable in whole
or in part by Consultant. It is understood and agreed that Consultant
shall not be permitted to assign, subcontract or appoint any agent or
subagent for the performance of any part of his duties and obligations
hereunder. This Consulting Agreement shall otherwise be binding upon
and inure to the benefit of the successors and assigns of the Parties
hereto.
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IN WITNESS WHEREOF, this Agreement has been executed as of the date set forth
above.
Allos Therapeutics, Inc. CONSULTANT
/s/ STEPHEN J. HOFFMAN /s/ MICHAEL J. GERBER
Stephen J. Hoffman, MD Signature
Title: President, Chief Executive Officer Date: 11/16/01
Date: 11/16/01 Social Security No.: ###-##-####
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