Exhibit 10.1
EXECUTIVE EMPLOYMENT AGREEMENT
THIS
AGREEMENT dated as of the 2 nd day of February 2009, to
be effective as of the 10th day of February 2009, by and between,
AspenBio Pharma, Inc., a Colorado corporation (the
“Employer” or “Company”) and Robert F.
Caspari, MD (the “Executive”). In consideration of the
mutual covenants contained in this Agreement, the Employer agrees
to employ the Executive and the Executive agrees to be employed by
the Employer upon the terms and conditions hereinafter set
forth.
ARTICLE 1
TERM OF EMPLOYMENT
1.1
Initial Term .
The initial term of employment hereunder shall commence
as of the effective day first written above (“Commencement
Date”) and shall continue for a period of one year from that
date, unless terminated earlier as provided under Article
5.
1.2
Renewal; Non- Renewal
Benefits to Executive . At the end of the initial
term of this Agreement, and on each anniversary thereafter, the
term of Executive’s employment shall be automatically
extended one additional year unless, at least 30 days prior to such
anniversary, the Executive shall have delivered to the Employer
written notice that the term of the Executive’s employment
hereunder will not be extended. The Employer shall have the right
to provide such non-renewal notice to Executive, on the same terms
and conditions.
ARTICLE 2
DUTIES OF THE EXECUTIVE
2.1
Duties
. The Executive shall be employed with the titles of
Chief Operating Officer and Chief Medical Officer, with
responsibilities and authorities as are customarily performed by
such position including, but not limited to those duties as may
from time to time be assigned to Executive by the Board of
Directors of Employer. Executive’s responsibilities and
authorities for operating policies and procedures are subject to
the general direction and control of the Board of
Directors.
2.2
Extent and Place of
Duties . Executive shall devote working time,
efforts, attention and energies to the business of the Employer on
a full time basis working out of the Castle Rock, CO, offices of
the Company in addition to regular trips for business and meetings
on behalf of the Company.
ARTICLE 3
COMPENSATION OF THE EXECUTIVE
3.1
Salary
. As compensation for services rendered under this
Agreement, the Executive will receive a salary of $250,000 per
year. Executive’s salary is payable in accordance with
Employer’s normal business practices. The parties agree that
the salary and compensation package will be reviewed at the end of
the initial year by the Compensation Committee of the Board of
Directors.
3.2
Benefits
. Executive shall be entitled to participate in all of
Employer’s employee benefit plans and employee benefits,
including any retirement, pension, profit-sharing, stock option,
insurance, hospital or other plans and benefits which now may be in
effect or which may hereafter be adopted, it being understood that
Executive shall have the same rights and privileges to participate
in such plans and benefits as any other executive employee during
the term of this Agreement. Participation in any benefit plans
shall be in addition to the compensation otherwise provided for in
this Agreement.
3.3
Expenses
. Executive shall be entitled to prompt reimbursement
for all reasonable expenses incurred by Executive in the
performance of his duties hereunder.
3.4
Employee Stock
Options . Upon the Commencement Date of this
Agreement Executive shall be granted 300,000 options to purchase
common stock of the Company at the market price on the date of such
grant. Such options shall be under the Company’s 2002 Stock
Incentive Plan, as amended and may consist of a combination of
Incentive and non-qualified options as are to be determined. Such
options will be subject to the provisions of the Company’s
2002 Stock Incentive Plan.
ARTICLE 4
NON-COMPETITION; CONFIDENTIALITY
4.1
During the term of this
Agreement, the Executive may make passive investments in companies
involved in industries in which the Company operates, provided any
such investment does not exceed a 5% equity interest, unless
Executive obtains consent to acquire an equity interest exceeding
5% by a vote of a majority of the directors.
4.2
During the term of this
Agreement the Executive may maintain any existing outside Board
member positions and that, subject to Aspen Board approval, which
will not be unreasonably withheld, the Executive could join
additional non-competitive Boards as an Independent Board member as
well, not to exceed a total of two boards.
4.3
Except as provided in
this Section 4 hereof, the Executive may not participate in any
business or other areas of business in which the Company is engaged
during the term of this Agreement except those he is currently
engaged in or through and on behalf of the Company, without the
consent from a majority of the directors.
4.4
a. The
Executive recognizes and acknowledges that the information,
business, list of the Employer’s customers and any other
trade secret or other secret or confidential information relating
to Employer’s business as they may exist from time to time
are valuable, special and unique assets of Employer’s
business. Therefore, Executive agrees as follows:
(1)
That Executive will hold in strictest confidence and not disclose,
reproduce, publish or use in any manner, whether during or
subsequent to this employment, without the express authorization of
the Board of Directors of the Employer, any information, business,
customer lists, or any other secret or confidential matter relating
to any aspect of the Employer’s business, except as such
disclosure or use may be required in connection with
Executive’s work for the Employer.
(2)
That upon request or at the time of leaving the employ of the
Employer the Executive will deliver to the Employer, and not keep
or deliver to anyone else, any and all notes, memoranda, documents
and, in general, any and all material relating to the
Employer’s business.
(3)
That the Board of Directors of Employer may from time to time
reasonably designate other subject matters requiring
confidentiality and secrecy which shall be deemed to be covered by
the terms of this Agreement.
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b. In the event of a
breach or threatened breach by the Executive of the provisions of
this paragraph 4.4, the Employer shall be entitled to an injunction
(i) restraining the Executive from disclosing, in whole or in part,
any information as described above or from rendering any services
to any person, firm, corporation, association or other entity to
whom such information, in whole or in part, has been disclosed or
is threatened to be disclosed; and/or (ii) requiring that Executive
deliver to Employer all information, documents, notes, memoranda
and any and all other material as described above upon
Executive’s leave of the employ of the Employer. Nothing
herein shall be construed as prohibiting the Employer from pursuing
other remedies available to the Employer for such breach or
threatened breach, including the recovery of damages from the
Executive.
c. &nb
