Exhibit 10.1
EXECUTIVE EMPLOYMENT AGREEMENT
THIS
AGREEMENT dated as of the 19th day of January 2009, to be effective
as of the 26th day of January 2009, by and between, AspenBio
Pharma, Inc., a Colorado corporation (the “Employer” or
“Company”) and Daryl J. Faulkner (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 the first anniversary after, 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 appointed to the Board of Directors and employed
with the title of Executive Chairman of the Board of Directors,
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. The
Executive shall have responsibility for and authority over all
operational and management aspects of the Company, to be delegated
as he deems appropriate. Upon execution of this Agreement, the
Company’s Board of Directors shall also agree to appoint
executive to fill the vacancy on the Company’s 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
substantial but not full time basis as may further be agreed upon
between the parties from time to time.
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 500,000 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 and as further defined in Exhibit A, attached
hereto.
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.
2
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.
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.
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